1.32The three jurisdictions with similar legal systems and to which New Zealand most often looks for guidance - Canada, the United Kingdom, and Australia - have all developed closed procedures using special advocates or security-cleared counsel. The procedures adopted have met with varying degrees of public acceptance and the extent to which they are used likewise varies.
1.34Prior to the Justice and Security Act 2013, closed material proceedings had been used in the United Kingdom in immigration tribunal and employment court cases. The Justice and Security Act 2013 has extended closed material proceedings to civil courts, which means the Crown is now able to use national security information to defend itself without those materials becoming public.
1.35Canada has both a legislative scheme relating to the use of security-cleared special advocates in immigration proceedings, and a common law public interest immunity framework. In relation to public interest immunity, a specific group of Federal Court judges make determinations as to non-disclosure of information claimed to be classified. Non-disclosure decisions are not reviewable by another court. Instead, the relevant trial court judge (different to the judge who determined non-disclosure) undertakes an ongoing review of whether or not the non-disclosure order continues to be compatible with natural justice protections. If the judge considers this not to be the case, there are a range of measures the judge can use to redress the imbalance in favour of the other party, including a stay of proceedings.
1.37Australia relies on common law public interest immunity and the National Security Information (Criminal and Civil Proceedings) Act 2004, which provides that the Attorney-General can issue a non-disclosure certificate if the Attorney-General considers that the disclosure is likely to prejudice national security (defined broadly as including national security, defence security, international relations and law enforcement).