13The Issues Paper canvassed the full range of options available for deciding how information should be handled in the court process once the court has determined it is evidentially relevant and comes within the scope of national security information, these options being:
14In respect of criminal trials, the Commission asked submitters whether they agreed that a closed procedure should not be used at all in the substantive trial. We also asked whether they considered 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.
15Submitters and those the Commission spoke with during consultation meetings were almost unanimously in support of this approach.
16However, the GCSB and the NZSIS submission favoured an approach that would allow the use of a closed procedure during the substantive trial in exceptional circumstances. They suggested that the court should be able to order that information only be disclosed to a special advocate representing the defendant and not disclosed to the defendant.
17The security and intelligence agencies noted that Parliament has already legislated for a range of provisions setting out reasonable limits on fair trial and open justice rights in certain cases. They submitted that, in certain situations, a trial can proceed in the absence of the accused. In each case, Parliament has recognised the public interest in placing limits on the open justice and fair trial rights in order to protect other rights and interests. They argued that national security information is simply one further category requiring protection, and the court should be given the discretion to use a closed procedure with a special advocate to protect that information. In some cases, the national security information will form only a small part of the case and may not materially assist either side so could be withheld; but in some cases, it may be central to the issues. They considered that judges should have the discretion to assess whether a fair trial was possible if information was made available only to a special advocate and not to the defence during a closed procedure. They considered that, in an extreme situation, the judge should be able to include national security material if it is relevant but cannot be given to the defence. They considered that this should not be ruled out.
18As discussed in the Report proper, we have not been persuaded by these arguments. We think it is of paramount importance that the accused has access to the material being used against them so that they are able to defend themselves. The accused must have access to all the evidence that is being taken into account in determining the case. Our view is that a closed procedure cannot deliver a fair trial to an accused in a criminal case.
19However, we have proposed a new provision to be included in the Evidence Act 2006 to introduce anonymity protections for sources who provide information on matters of national security or intelligence officers working for New Zealand or international intelligence agencies. This will be an important tool for ensuring that national security interests are protected while enabling those involved with security and intelligence agencies to give evidence.
20We asked submitters whether New Zealand should have closed material regimes for civil and administrative proceedings. We also asked whether submitters thought that the use of special advocates adequately ameliorates the unfairness of proceedings when people are denied full disclosure of the other party’s case.
21We received a submission from the Bingham Centre for the Rule of Law, an organisation dedicated to independent promotion of the rule of law in the United Kingdom and worldwide. They submitted that New Zealand should not enact closed material proceedings. The submission is based on the United Kingdom experience following the enactment of the Justice and Security Act 2013 (UK). The experience of special advocates in the United Kingdom in closed material proceedings is that they are inherently unfair, they do not work effectively and nor do they deliver real procedural fairness. The Supreme Court in the United Kingdom has also made it clear that closed material procedures involve a departure from the open justice and natural justice principles. The Bingham Centre said that any moves to legislate to reduce equality of arms, natural justice, openness and accountability are of themselves moves that depart from fidelity to the rule of law and should not be made lightly.
22Amnesty International New Zealand considered that closed material procedures undermine standards of fairness in the administration of justice; can deny individuals their right to a fair hearing, including with respect to claims that the government will expose them to the risk of serious human rights violations through deportation; and may prevent victims of human rights violations from accessing their right to an effective remedy.
23Most other submitters also said that closed procedures are inherently unfair but saw some scope for them in rare circumstances or where the non-Crown party wants to access national security information for the purposes of its case. The Auckland District Law Society meeting and other feedback at meetings was very critical of closed procedures, but many critics said they might have a place as a last resort, provided the statute is clear that they should only be used in specific circumstances.
24The Privacy Commissioner said that a special advocate is fundamentally handicapped in representing a party if they are limited in communicating with them. A fundamental feature of our justice system is the opportunity to challenge the accuracy, authenticity, robustness and completeness of evidence relied on by the opposing party and the interpretation of that evidence presented to the court. Legal counsel present argument to the Court by bringing together the full array of the facts and applying the law to them. The ability to analyse facts and law and present arguments in a case is prejudiced where the lawyer/client relationship is constrained by restrictions on frank communication. While special advocates could play a role in challenging the opposing case on the basis of legal argument, there are significant limitations in bifurcating representation between different lawyers.
25The NZLS said that the use of closed material procedures is a fundamental incursion on principles of natural justice. The use of special advocates does not in itself remove the unfairness inherent in a closed material proceedings regime. It can only mitigate the unfairness. That said, the use of special advocates may be preferable to an alternative where there would otherwise be no disclosure and no ability to represent the interests of the affected party.
26However, the NZLS said it should always be a measure of last resort. A closed material proceedings and special advocate regime should only be used in very limited and carefully defined circumstances. In all but the most unusual of circumstances, the Crown should be able to make its decisions and prepare its case without substantial reliance on “national security information”. Other submitters and consultees also acknowledged that there could be circumstances were it was appropriate to modify ordinary rules and use of special advocates as a last resort.
27The New Zealand Bar Association (NZBA) said that the issues raised by the use of national security information in proceedings involve a balancing of interests. The individual’s rights to natural justice and open justice are balanced against the protection of national security. The restrictions on special advocates necessarily result in a restriction on an affected person’s right to natural justice. However, the NZBA considers that special advocates are the best way of balancing the different interests involved. They do not completely remove the unfairness of proceedings but do, on balance, adequately ameliorate that unfairness.
28Having considered all of the submissions and feedback, we reached the view that closed procedures should have a limited role in civil and administrative proceedings. Closed procedures, which impact on an affected person’s access to information, should be reserved for those cases where that degree of protection of information is truly necessary – that is, where information would otherwise need to be excluded from proceedings but the prejudicial effect of excluding the information is such that closed procedures allow for a better resolution of the case. Less significant risks to national security should continue to be managed by using the tools for dealing with sensitive information in ordinary court proceedings.
29In the Issues Paper, we also asked submitters whether they favoured the option of the party’s own lawyer representing them during closed procedures compared to the alternative of a special advocate.
30The Privacy Commissioner supported the use of a party’s own counsel in preference to the use of special advocates wherever possible. Although it may create a tension for lawyers in representing their clients’ interests, lawyers are professionally trained to handle competing interests (such as handling duties to the court and duties to other members of the profession) and are subject to professional ethics. The Commissioner thought it would be desirable for lawyers who are made subject to restrictions to be able to seek directions from the judge where necessary to guide their conduct and the conduct of the relevant proceeding.
31The NZLS did not support an approach involving the lawyer acting for an affected person having access to “national security information” but at the same time being prohibited from disclosing or discussing that information with his or her client. This approach cuts across the lawyer/client relationship and the ethical obligations of counsel and can put the lawyer in a very difficult situation. They said that it is difficult to envisage circumstances involving national security information where this would be workable. Although there are also difficulties with the special advocate procedure, the NZLS considers that it is preferable in this context.
32The NZBA acknowledged that there are benefits in an approach under which the affected party’s own lawyer could represent them during closed procedures. The lawyer has the best knowledge of the proceeding, and it would also remove the double layer of assistance and cost that a special advocate introduces. However, the NZBA was not in favour of this option, because the lawyer would have access to information but could not disclose that information or discuss it with his or her client. This is fundamentally contrary to a lawyer’s obligation of full disclosure to his or her client and acting in the client’s best interests. Further, placing an affected person’s own lawyer in this position could increase the risk of disclosure of the information, even on an inadvertent basis.
33In most cases, the NZBA said the benefits in having the person’s own lawyer represent them during closed procedures would be outweighed by the ethical conflicts and practical difficulties involved in such an approach. The one exception to this may be where the issues at stake in the proceedings simply do not justify introducing the additional cost of a special advocate, but even then it is difficult to see how this would work in practice. The Chief Justice submitting on behalf of the senior judges took the same position. Although support from the party’s own lawyer is the best outcome, the lawyer is in difficulty if unable to pass material on to the client, so in such circumstances, a special advocate is preferable.
34We reached the view that, given the concerns raised by submitters, particularly those of lawyers, special advocates are a better option than the use of the person’s own counsel, provided we address the limitations on special advocates in the design of the scheme.