Chapter 1
​Setting the scene

What happens in other countries?

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.

1.33The United Kingdom has both public interest immunity and has more recently enacted the Justice and Security Act 2013. The Act outlines the closed materials process for dealing with national security information in proceedings (often undertaken in the immigration context). In relation to public interest immunity, it is for the court to determine whether the information should be disclosed or not. The United Kingdom’s highest court has emphasised that this must be an ongoing review process. The court may subsequently amend its decision and determine that information initially withheld must be disclosed.16 This allows the court to continually monitor proceedings to ensure compliance with natural justice protections.

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.

1.36The Canadian Immigration and Refugee Protection Act 2001 establishes a special advocate system for use in determining immigration matters. Special advocates are legal representatives with security clearance who are appointed to review the information in question in order to challenge its relevance, reliability and sufficiency. They receive administrative support and resources from the Minister of Justice.17

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).

1.38In relation to public interest immunity, an application can be made at any time in proceedings (usually supported by a sworn affidavit from the relevant minster), and the court then weighs up the competing interests for and against disclosure.18
16R v H and C [2004] UKHL 3.
17Immigration and Refugee Protection Act SC 2001 c 27, s 85.1(2)(b).
18Nicola McGarrity and Edward Santow “Anti-terrorism laws: balancing national security and a fair hearing” in Victor V Ramraj and others (eds) Global Anti-Terrorism Law and Policy (2nd ed, Cambridge University Press, Cambridge (UK), 2012) at 136–138 argue that there are significant failings in the public interest immunity process. These include the lack of guidance for the courts in assessing a public interest immunity claim as to the weighing exercise that should take place between the rights of the individual and public national security concerns, lack of guidance as to appropriate evidentiary standards, lack of a mechanism to indicate that a public interest immunity application may be forthcoming in proceedings and lack of alternative or partial measures that can be used in place of granting full public interest immunity.