Chapter 6
Reform – where to from here?

Creating a workable special advocate model

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.

What information must be provided to the affected person?

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?

6.68Under the models in the United Kingdom, Canada and Australia, the Crown is able to rely on documents and material it puts into the closed system while only disclosing a summary or part of those documents to the other parties. The Canada Evidence Act 1985229 and the National Security Information (Criminal and Civil Proceedings) Act 2004 in Australia230 enable the court to authorise disclosure of all the information, a part or summary of the information or a written statement of facts relating to the information.231 In the United Kingdom, the Justice and Security Act 2013 provides that the court must consider requiring a summary of the closed material to be provided to all excluded parties where it is possible to do so without damaging national security.232
6.69However, in all of these regimes, the legislation gives little guidance as to the content of the summary, and this question will largely be left to the courts. In the context of reviewing a control order, the House of Lords has said that the individual affected by the decision and excluded from the proceedings:233

… 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.

6.70In the Zaoui litigation, Williams J stated that the right of a person charged, or subject to a security certificate, to know “at least the outline of the allegations against them and the basis on which they are made” was a basic principle of natural justice to be given effect to the fullest extent possible having regard to the restriction on disclosing classified security information.234 The result of this ruling was that there was significant disclosure in the Zaoui proceedings, which allowed, among other things, the special advocates to be extensively briefed by the counsel for the represented party prior to their viewing of the classified material.235

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.

The role of special advocates in arguing for greater disclosureTop

6.72In their study of special advocates, Waldman and Forcese concluded that special advocates “clearly see as one of their key (and perhaps principle) roles pressing for greater disclosure”.236 Given obligations arising from intelligence-sharing relationships and the imperative to keep intelligence-gathering methods confidential, intelligence agencies are likely to err on the side of non-disclosure. A practice of over-claiming secrecy is an understandable occupational hazard.237 There is therefore a potential role for special advocates, who have viewed the national security information, to challenge the claim for non-disclosure on the basis that the particular information could be released. On at least three occasions in Canada, security-cleared counsel has been successful in arguing for further information to be disclosed openly. As a result, the Canadian courts increasingly require the security services to ask foreign agencies whether they are willing to amend caveats to allow the disclosure of information.238

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.

Level of judicial control over proceedingsTop

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.

Ability of represented party to properly instruct the special advocateTop

6.76The major constraint on the special advocate is the restriction on communications with the represented person after having viewed the closed material. This raises questions over the ability of a special advocate to represent interests without being able to take instructions based on the information contained in the closed material.239

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).

6.78In Canada, once the special advocate has seen the secret evidence, he or she cannot communicate with anyone about it without judicial authorisation and subject to any judicially imposed conditions.240 There is no absolute bar on communication rather, judges are delegated the power to determine how far the special advocate can go in the exercise of his or her duties.241 The limitations on special advocates communicating with the represented person are part of the broader obligation on the advocate not to disclose the national security information.
6.79The strict limitations on communications are a significant departure from conventional fair trial standards and are one of the most controversial aspects of the United Kingdom special advocate system.242 It would appear that these rules reflect the concern that special advocates may inadvertently disclose information, for example, through the questions they ask of the affected party after viewing the information.243

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.

6.81In its 2012 report on secret evidence, Amnesty International quoted one lawyer who described acting in such cases as “shadow boxing” where “you are speaking into a black hole because you have no idea if your strategy and points are on the money or wide of the mark”.244 The degree of secrecy makes it difficult for lawyers to know how best to respond to the case against their client, as they are faced with the option of either providing the life story of their client, hoping that something they say may support their client’s case, or self-censoring to avoid the risk that adopting a certain line of questioning might result in negative consequences in the secret part of the hearing that could be dispelled if the lawyer were aware of them.245
6.82Despite such limitations, supporters believe that special advocates can still be effective. Kent Roach considers that the special advocate system has achieved some good results since its introduction, and in his view, this justifies preferring special advocate procedures to alternative pseudo-inquisitorial options that do not have advocates.246

Alternative of security clearing affected person’s lawyerTop

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

6.84However, as is the case in Australia, the weakness of this approach is that the affected person would need to choose a counsel willing and able to gain a security clearance.248 There may be many reasons why counsel would not be willing to undergo a security clearance, including the time taken, the process of completing the forms and the exposure of one’s personal life to scrutiny. There may also be the risk that some capable lawyers would not be granted a security clearance, a process that is by its nature secret.249

Resources and logistical supportTop

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.

6.87In response to complaints about resourcing in the United Kingdom, the Special Advocate Support Office (SASO) was established in 2006. SASO is a branch of the Treasury Solicitors Department and in order to retain independence operates with strict protections to keep internal operations separate from other branches of the Treasury Solicitor’s Department.250 We are interested in feedback on what sort of resourcing and logistical support special advocates would need to have available to them if a system was established in New Zealand.

Tools for providing effective advocacyTop

6.88Another issue is whether special advocates have adequate powers within the closed hearing process to be effective. For example, can they call witnesses, demand extended disclosure of other material and engage experts to help them? The Canadian system specifically provides for special advocates being able to cross-examine witnesses in closed proceedings and, with the judge’s authorisation, to exercise any other powers that are necessary to protect the interests of the person. Under the provision, special advocates could seek judicial approval to call their own witnesses and to demand disclosure beyond the secret evidence used by the Crown in the case.251 There is uncertainty whether the Immigration Act 2009 allows special advocates a similar array of powers.

Could special advocates have a limited role in criminal proceedings?Top

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.

A generic legislative framework or specific regimes?Top

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.

Cautious approach to use of closed proceduresTop

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.

Questions

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?

229 Canada Evidence Act RSC 1985 c C-5, s 38.06(2).
230 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 38L.
231 McGarrity and Santow, above n 18, at 142.
232 Justice and Security Act 2013 (UK), s 8(1)(c).
233 Secretary of State for the Home Department v AF [2009] UKHL 28 at [59].
234Zaoui v Attorney-General, above n 132.
235Ip, above n 228, at 222.
236Forcese and Waldman, above n 223, at 42.
237Roach, above n 155, at 188.
238At 188.
239 Prior to viewing the sensitive information, the special advocate is not in a position to be able to ask questions about the information, so access to the represented party is of limited utility. One potential benefit could be that the special advocate can give an objective assessment of the case preparations to that point.
240Immigration and Refugee Protection Act SC 2001 c 27, s 85.4(2).
241Roach, above n 155, at 186.
242 At 186.
243 At 188.
244 Amnesty International Left in the Dark: The Use of Secret Evidence in the United Kingdom (October 2012) at 11.
245 At 11.
246Roach, above n 155, at 187–188.
247At 189.
248At 197.
249For example, that they are closely related to someone who has been involved in activities that raise security concerns.
250Forcese and Waldman, above n 223, at 30. The separation measures have not prevented some civil society groups and some affected persons and their advocates criticising that the SASO cannot, by its nature as a government dependant, be independent.
251Roach, above n 155, at 189.