Chapter 5
Civil proceedings

Options for reform

5.47There is a good case for reform in respect of general civil proceedings. At the core of this argument is the fact that procedures that restrict or limit fundamental rights to natural justice and the principle of open justice should be established by Parliament. Other significant concerns are that the current practice of establishing procedures on a case-by-case basis has the potential to generate uncertainty over the process that might be adopted in any particular case and must rely on the ongoing co-operation and consent of all parties. There is an argument that a generic established procedure would also be both administratively efficient and more cost-effective.

5.48A special advocate scheme may be capable of promoting principles of good governance, accountability and transparency. Special advocates both assist the court in reaching conclusions as well as representing the interests of the individual in question.

5.49In the next chapter, we consider what kinds of models might be used. We will consider which features of the procedures adopted overseas might be drawn on to develop a model for the use and protection of national security information in administrative and civil proceedings and how to afford appropriate respect to natural justice rights.


Q13 Should the courts be able to consider national security information that has not been disclosed to one of the parties to a claim in civil proceedings?
Q14 Should New Zealand adopt a single overarching framework that applies to all civil proceedings?
Q15 What features should such a process have? Should the process use special advocates, security-cleared lawyers, summaries of the national security information, or other mechanisms to ensure the interests of the non-Crown party are represented?