6.66A key question for this review is how to create a workable special advocate model that allows the affected party’s interests to be properly represented when national security material is relevant to their claim but cannot be disclosed directly to them or to their chosen counsel.
6.67As discussed in the chapters above, rules of evidence generally require that all parties have access to information relevant to the question at hand. The special advocate model is a mechanism for partial or controlled disclosure of national security information. The question is, how much disclosure is enough?
… must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.
6.71How much information must be disclosed in order to ensure natural justice requirements are satisfied appears, at least partly, contextual. For example, in the context of section 242 of the Immigration Act 2009, a summary must be able to “give an appellant or affected person an opportunity to comment on potentially prejudicial information in the course of proceedings involving classified information before the Tribunal”. The Tribunal will determine how this objective is to be achieved in light of the guidance given in section 242 on what information should be excluded.
6.73In Zaoui, the special advocates were appointed to present arguments on the question of how much secret information should even be disclosed to Mr Zaoui and his counsel. Under the Immigration Act 2009, there is some uncertainty over the extent to which the special advocate has a meaningful role in arguing for greater disclosure given that pursuant to section 242(7), “a special advocate may not be involved in the process of approving, amending, or updating a summary”. The special advocate represents the affected person in proceedings if material remains classified and undisclosed to the affected person. However, the special advocate can advocate for greater disclosure at the preliminary hearing (albeit indirectly) by trying to get material declassified.
6.74Special advocate models are likely to better protect the interests of the affected party where the court, rather than the Crown, has the ultimate decision making role regarding what information must be disclosed to the affected party. If the court is unable to require disclosure of information or determine the adequacy of the summary of information the affected party receives, there is a risk of greater prejudice to the affected party. Conversely, if the court has a strong supervisory role, it will be better able to strike the right balance between the competing interests and ensuring that justice is done and seen to be done.
6.75If the court is too constrained, its independence from the Crown might even be called into question. It needs to have sufficient control over proceedings or it is simply lending legitimacy to matters determined elsewhere.
6.77Once a special advocate has been given access to the closed material in the case, normally no communication is permitted with the represented party or their legal counsel. Some models provide for limited communication with the permission of the tribunal or court before which they are appearing (as per the New Zealand Immigration Act 2009 model).
6.80In addition, counsel for the represented party may face problems if open court proceedings run alongside closed court proceedings but communication with the special advocate is not allowed.
6.83As mentioned above, the alternative of security clearing the affected party’s chosen counsel may address some of the concerns with the special advocate model. Kent Roach makes the obvious point that the person’s own advocate is the person most familiar with the case and most likely to be able to place the information within that broader context of the narrative of the case. He is therefore critical that the option of giving security clearance to the affected person’s own lawyer was discounted in Canada. He thinks that a model that allows security-cleared lawyers greater access to the affected person and his or her counsel without judicial approval would be “a more proportionate alternative that responds to some of the deficiencies”. Such an approach depends on the good judgement and discretion of security-cleared counsel. He says that, in models where they are used, there have been no complaints that lawyers inadvertently (or deliberately) leak secrets.247
6.85There are issues over the adequacy of training and resources available to special advocates in many systems and contexts where they are used. In New Zealand, in the immigration context, we understand there to be approximately five Queen’s Counsel who have security clearance and are recognised as special advocates under section 264 of the Immigration Act 2009. They have had no specific training to date, but we understand further training based on overseas resources is being considered.
6.86Given the special advocate procedure is in its infancy in New Zealand and has often arisen on an ad-hoc basis, we understand that current support structures for special advocates are limited. Issues may include a secure court space, secure storage for documents, adequate security-cleared administrative and legal support staff, security-cleared translation facilities where necessary, access to research facilities within a secure space, remuneration for the special advocate, adequate time to prepare for the case and, as already highlighted, an adequate pool of advocates willing to undergo security clearance with the relevant level of expertise.
6.89We have stressed throughout this paper that the right to a fair trial must be upheld in criminal proceedings. National security interests have to be managed against this background. We consider that this generally means that risks to national security must be managed by ordinary measures, such as judges clearing the court or making use of suppression powers. We also consider that, where the risk to national security is more significant, material that cannot be presented to the court even with those protections must be withheld and not relied on as evidence. We do not think that having evidence presented to the court without either the defendant or their counsel present can be reconciled with the right to a fair trial.
6.90However, there may be scope in criminal trials to use special advocates in the preliminary stages leading to trial to assist in determining whether information should be withheld. Special advocates could view the national security information and then, if appropriate, challenge the claim for non-disclosure.
6.91The court could benefit from having this type of assistance from a lawyer representing the defence perspective when trying to assess the material. It would help address any risk of over-claiming on national security grounds and could lead to more information being disclosed and better evidence being available for the substantive hearing. Where non-disclosure is justified on national security grounds, the special advocate would be there to protect the defendant’s interests and assist the court when assessing any prejudicial effect non-disclosure has on the defence and particularly whether a fair trial remains available.
6.92Amendment to the Criminal Disclosure Act 2008 would be needed to give effect to this proposal.
6.93One final issue to consider if New Zealand does enact further closed proceedings regimes is whether it would be desirable to have one broad regime that extends across all areas or whether it is better to continue to design specific regimes for specific contexts, such as the one in the Immigration Act 2009. There are, of course, advantages and disadvantages with either approach.
6.94The main advantage of a generic model would be the commonality and ability to develop greater experience and expertise from relatively few cases. Based on experience to date, we do not expect that there will be many cases that would need to utilise special advocates and closed processes. A generic regime might be preferable given how rarely such processes are used. Also, a generic regime would promote consistency of approach when dealing with national security information. General principles and standards would be set, and there would be less risk of deviations from these.
6.95One disadvantage with a generic approach is that it potentially goes wider than is necessary and may limit the ability to tailor the processes to the specific situation. There is therefore some risk that it may begin to normalise such processes. To date, these issues have arisen infrequently and only in certain specific contexts. It may be better therefore to address the specific contexts where the issues arise rather than developing a broader legislative framework that is potentially wider than is needed. Specific solutions do also allow for a greater degree of tailoring to the particular context, although this does risk general principles and standards being eroded. With an incremental approach, responding to specific situations, there is more scope for unnecessary and unjustified variation.
6.96Finally, whatever we do in terms of legislative reform, we must guard against the risk that a legislative scheme will start to normalise the use of closed proceedings so that the degree of risk that triggers the use of a closed process ends up being set too low. Closed procedures should not be the default simply because there are claims to national security. To ensure the use of closed procedures is monitored and reviewed, new legislation could probably contain provisions requiring periodic reports on the use of those procedures and providing for periodic reviews of their operation.
6.97As discussed already, not all risks to national security need the same level of protection. We think that the bar needs to be set relatively high for triggering any departure from the normal standards of natural justice. To ensure the interests of all parties are kept in mind, we consider that a range of pathways for proceedings are needed. The underpinning principle must be to facilitate the greatest degree of disclosure and openness that is consistent with the nature and magnitude of the national security interests at stake. The approach taken in any case would depend on the sensitivity of information itself and also on the importance of the rights or interests being determined. We have not reached any conclusions as to what these different pathways would involve but we would expect that closed proceedings, which impact on an affected person’s access to information, would be reserved for those cases where that degree of protection of information is truly necessary. Our expectation is that less significant risks to national security can continue to be managed by using the tools for dealing with sensitive information in ordinary court proceedings. Also, in cases where significant rights or interests are at stake, such as in criminal proceedings, a high value must continue to be placed on natural justice.
Q20 Given the constraints under which they operate, do you think special advocates can adequately ameliorate the unfairness of proceedings when people are denied full disclosure of the case against them?
Q21 Should we have a special advocate regime for civil and administrative proceedings? What are the key features and protections you would want to see built into a legislative special advocate regime?
Q22 Do you consider that there is scope in criminal trials to use special advocates in the preliminary stages of the trial to assist in determining whether information that prejudices national security should be withheld? Do you agree special advocates should not be used in the substantive trial?
Q23 Do you favour a generic legislative approach that establishes one closed proceedings regime with natural justice safeguards that can be applied across all the relevant administrative and civil contexts and (possibly) aspects of criminal proceedings, or should specific regimes be retained and developed?