Chapter 6
Reform – where to from here?

How is national security information to be used?

6.38This is a question that needs to be resolved in stages:

(a) There needs to be a preliminary determination on whether the information is evidentially relevant to the proceedings.
(b) There needs to be a determination as to whether the information is within the scope of what is national security information.
(c) For the purposes of the actual hearing, a determination needs to be made as to how the information should be handled in the court.

6.39At the preliminary stages, there are questions as to whether a court or tribunal ought to look at the information that is claimed to be national security information in order to assess whether it is indeed evidentially relevant to the proceedings. While, traditionally, there have been reservations as to whether judges should view classified information subject to public interest immunity claims, the time for such reluctance may have passed. We suggest that the tribunal or court concerned probably should look at the national security information before it can make a decision as to whether it is evidentially relevant. Assuming it finds the information is evidentially relevant, the court would also need to assess whether the information comes within the scope of national security information and to then determine the conditions under which it can be used in the proceedings.

6.40Even the preliminary stages raise the question of whether judges, tribunal members and the facilities that they use will need to be security-cleared and, perhaps even more significantly, whether special advocates or even the other party’s lawyers can assist the decision maker and how they might do so.

6.41At the substantive stage, there are a range of options for handling the information. These are set out in the diagram below. One option (which, from a natural justice perspective, is perhaps the least desirable course of action) is to withhold the material completely or allow only the judge or decision maker to see the national security information. This approach ensures the protection of the information, as counsel for the affected person would not have access to the information. At the other end of the spectrum there are ordinary open court processes that address natural justice but fail to address the need for protecting national security interests. Somewhere between fully open and fully closed sits the model of partial disclosure to a special advocate that has been adopted in both the United Kingdom and Canada and for which legislative provisions have been made in New Zealand in the Immigration Act. Special advocates can see and question material as if acting for a client, but they cannot divulge the material to the affected party beyond the provision of a “gist of the material” (that is, a summary).

6.42It is helpful to visualise the different options along a continuum depending on the relative weight each gives to values of open justice and natural justice on the one hand and security protection on the other.

procedure used diagram

Withholding national security information from the non-Crown party

6.43There are two approaches for completely withholding relevant national security information from the non-Crown party - one where the information still forms part of the evidence but is not even partially disclosed other than to the decision maker, and one where it is withheld and cannot be used as evidence.

(a) A closed inquisitorial model: National security information is heard by the decision maker without the affected person being present or represented (even by a special advocate). Out of necessity, the decision maker has a more inquisitorial role and must test the security information without it being subject to challenge by the affected person or any type of adversarial process.
(b) Excluding information from the proceedings: An alternative to using sensitive material in proceedings is to prevent even partial disclosure to the court (the public interest immunity approach). The information would be wholly excluded and neither side would be able to use it, although the government would have the benefit of having seen the information.

6.44Under the closed inquisitorial approach, the national security information is heard by the decision maker without the affected person being present or even represented by a special advocate. This means that the decision maker must test the security information without it being subject to challenge. The usual adversarial process cannot apply if no one is representing the affected person’s interests. Although the decision maker may appoint a person as an amicus to assist in testing the evidence.

6.45Historically, this model was used in some administrative contexts, for example in immigration. It is at the opposite end of the spectrum from open court processes and the tribunal is the sole party able to protect the affected person’s rights to a fair hearing. In both Canada217 and the United Kingdom,218 where this model was previously used for immigration cases, its use in contexts where significant rights are at stake has now been severely criticised by the courts, and it has now largely been superseded by various forms of closed material procedures using special advocates and giving partial disclosure.

6.46The development of special advocate closed procedures, which give greater weight to the affected person’s rights to natural justice and a fair hearing without compromising security interests, means there are only limited circumstances where withholding sensitive material might be appropriate. Natural justice is an essential component of democracy in New Zealand, and denying an individual the right to present their case or argue in their own defence is an extreme measure. Any security threat used to justify setting aside this right would need to be significant.

6.47As discussed earlier in the paper, New Zealand law allows national security sensitive evidence to be excluded in both criminal and civil proceedings. This was the position under the common law of public interest immunity and is now the position under the Criminal Disclosure Act 2008 and under section 27 of the Crown Proceedings Act 1950 and sections 69 and 70 of the Evidence Act 2006.

6.48The question of whether the courts or the Crown should decide that information should be withheld was considered in the previous section.219

Use and protection of national security information under ordinary court processesTop

6.49Another option is for national security information to simply be treated in the courts in the same way as other types of sensitive information and for ordinary court processes, with perhaps some modification, to be used. As discussed in Chapter 2, a fair hearing requires that the defendant, and normally also the public, knows what evidential material is being considered by the judge or jury and that both the prosecution and the defence should have a fair opportunity to address all material being considered by the decision maker when reaching a verdict.

6.50Use in open court envisages that national security information is disclosed to the affected party, subject to protection measures that are already available to deal with other types of sensitive information, such as commercial or highly personal information. These include orders excluding the media from the court room or orders suppressing names, evidence or certain details. Under this option, there would be no additional special processes. This approach would have the following features:

6.51In the context of criminal proceedings, the Criminal Procedure Act 2011 allows the judge to clear the court where national security or defence interests make this necessary. Public access to information can also be restricted, and the judge can make various suppression orders forbidding publication of details of cases where the interests of national security or defence require this.221 Witness anonymity orders can be made under the Evidence Act 2006 where the judge is satisfied that preventing the defendant and his or her counsel from knowing the identity of a witness will not prejudice a fair trial.222 In addition there is the broad discretion available to trial judges under section 54(4) of the Evidence Act 2006 to control how information is used in proceedings. The real question with this approach is whether these measures are enough to protect national security information when it is being used.

6.52As discussed in Chapters 2 and 3, in criminal proceedings the right of the accused to a fair trial is protected by section 25(a) the New Zealand Bill of Rights Act 1990, which provides that “everyone who is charged with an offence has, in relation to the determination of the charge, the right to a fair and public hearing by an independent and impartial court”. In the criminal context, the highest value is given to open justice and natural justice. Security interests have to be managed against that background. Where the risk can be managed by such measures, judges can clear the court or make use of suppression powers. Where the risk to national security is more serious, the material could be withheld and not given in evidence.

Partial disclosure optionsTop

6.53The remaining options outlined below allow for partial disclosure. The partial disclosure procedures that we discuss address the situation where national security information is so relevant that it cannot fairly be excluded. Its presentation to the court or decision maker is essential in order to achieve an informed decision and do justice in the case at hand. These cases prompt us to ask how the information should be protected when being used. Potentially, the different procedures outlined would be more likely to protect the interests of both sides, compared with the “all or nothing” approach of non-disclosure.

Excluding the affected person but not their counsel

6.54Under this approach, the affected person might be excluded, but the affected person’s lawyer might be security-cleared to view the national security information. Counsel would also need to issue a non-disclosure undertaking.223 The party concerned would receive as much information as can be disclosed, including partially redacted documents. A summary of allegations or a “gist” of the allegations could also be disclosed to the affected party.

6.55This model answers many of the criticisms relating to the special advocate model (discussed below) and has both the advantage and disadvantage of being a unique and largely un-trialled (in Commonwealth jurisdictions) system. It could therefore be adapted to the needs of New Zealand but would not bring with it the lessons learned elsewhere.224

6.56It is difficult to reconcile this model with the normal understanding that lawyers will share all information with their clients so that they will be able to receive proper instructions. It will be difficult for lawyers to build an effective case if they cannot communicate with their clients and discuss the significance of security information. This risks distorting the traditional view of a lawyer/client relationship.

6.57However, when this option is compared with a special advocate procedure (discussed further below), there are potential advantages, and it is certainly better from the perspective of natural justice than simply withholding the information while allowing the decision maker to take it into account.

6.58This approach was used in Canada in the Air India criminal trial. The defence counsel, after viewing the information, negotiated with the Crown as to whether individual documents were of real importance to the defence and should be disclosed in the public interest. Some documents were released in this manner and then became available to the defendants, while other documents were withheld from the proceedings.225

6.59This option might have particular merit in cases where the information is highly relevant but also sensitive, yet the nature of the proceedings does not justify the use of a special advocate. We invite submissions as to whether this could extend to some aspects of criminal cases, such as a challenge to search warrant that was obtained on the basis of sensitive evidence, or whether it is too significant an in-road on fair trial rights or the normal expectation that a lawyer must share all information that he or she receives with his or her client.

Special advocates representing the affected party in closed material proceedings

6.60This approach goes a step further in terms of protecting national security information from inadvertent disclosure. Under a special advocate model, the affected person and their chosen counsel are excluded, and a security-cleared special advocate is appointed to represent the person’s interests in respect of the protected material. The person concerned and their chosen counsel will receive partially redacted documents and summaries of allegations (known as a “gist” of the allegations) if these can be disclosed openly. The special advocate would receive full access to the relevant national security information. There are more or less restrictive options for implementing this model. One approach would be to allow the special advocate to assist in preparing the summaries and to challenge the level of redaction while receiving instructions directly from the affected party or their counsel. A more restricted option would be to prevent the special advocate from communicating with the affected party and would limit their role to advancing arguments based on the information available without ability to challenge the level of disclosure.

6.61Special advocates have developed as an important alternative to secret evidence and closed tribunals in contexts where the sensitive evidence is highly relevant but disclosure would prejudice significant national interests. The special advocate can argue for greater disclosure to the affected person and can also represent the affected person’s interests in the proceedings from which the person is excluded. In a New Zealand context, John Ip describes the special advocate functions as a mechanism for mitigating the prejudice of a closed material procedure and the attendant non-disclosure of the material.226

6.62The key issues to address when considering how a special advocate mechanism might work include the following, which are discussed in more detail below:

6.63The special advocate option provides a mechanism for mitigating the prejudice of a closed procedure and the non-disclosure of relevant material to the affected person. Compared with disclosing the information to counsel chosen by the affected person, it gives greater assurance to intelligence-gathering agencies.

6.64Special advocates would normally have security clearance. For example, the special advocate scheme under the Immigration Act 2009 requires special advocates to be security-cleared by the Chief Executive of the Ministry of Justice and also imposes a statutory duty on a special advocate not to disclose security information.227 This is an important safeguard to protect the information. It would be essential that anyone appointed as an advocate would be a skilled lawyer of high standing. We understand from officials that the current expectation is that lawyers designated as special advocates under the Immigration Act 2009 are well respected and highly skilled members of the bar.

6.65From the perspective of the affected person, the issue is whether special advocates can, given the constraints under which they operate, adequately ameliorate the unfairness of proceedings where they do not receive full disclosure of the case against them.228 Opinion remains divided. The next section will consider how best to resolve this issue.

Question

Q19 Do you think there are benefits in developing an approach under which the affected person’s own lawyer can represent them during closed proceedings (and not a special advocate)? How would this affect the lawyer’s obligations to their client?

217Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350 at [61]. The Canadian Supreme Court said “fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case”. For this to be satisfied either “the person must be given the necessary information, or a substantial substitute for that information must be found”.
218Chahal v United Kingdom (1996) 23 EHRR 413.
219For more detail, see Law Commission, above n 14, at ch 7.
220Evidence Act 2006, ss 110 – 118.
221Criminal Procedure Act 2011, ss 197 and 198 (powers to clear the court), ss 200, 202, 205 (powers to suppress identity of defendants, witnesses, victims, connected persons, evidence and suppression). The High Court also has inherent power to make such suppression orders as are otherwise necessary for the administration of justice and to protect the security and defence of New Zealand.
222Evidence Act, ss 110 – 118.
223Craig Forcese and Lorne Waldman Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings (Canadian Centre for Intelligence and Security Studies, August 2007) at 58.
224 Forcese and Waldman suggest there is scope for another option before jumping to the use of special advocates.
225At [58].
226John Ip “The Rise and Spread of the Special Advocate” [2008] PL 717 at 717.
227Immigration Act 2009, s 263.
228John Ip “The Adoption of the Special Advocate Procedure in New Zealand’s Immigration Bill” [2009] NZL Rev 207 at 218.