Contents

Chapter 9
The special advocate regime and security issues

The special advocate regime

9.3The role of the special advocate should be to represent the interests of the excluded party. The special advocate should be free to advocate vigorously for that party’s interests during the closed hearing, including arguing that material should be released to open proceedings.

9.4Special advocates should be clearly distinguished from amicus curiae.133 The amicus role is a much more neutral one as between the parties. The amicus presents to the court all material and makes all arguments that might be of assistance to the court rather than necessarily advancing the interests of one of the parties in the proceedings.

9.5Although the special advocate certainly represents the non-Crown party’s interests, the advocate cannot act for the party in the way that the party’s chosen counsel does. The special advocate will have access to information that cannot be disclosed to the affected party, and this is contrary to a lawyer’s obligation of full disclosure to his or her client. The relationship between the special advocate and the excluded party is not an ordinary client/legal counsel relationship. Therefore the role and duties of the special advocate should be clearly provided for in legislation.

9.6It is appropriate to provide a limited statutory immunity to protect special advocates from claims of professional misconduct or unsatisfactory conduct as lawyers under the Lawyers and Conveyancers Act 2006 where they are acting in accordance with the requirements of their role as special advocates.

Panel of designated security-cleared lawyers

9.7To be a special advocate, a lawyer will need to hold a current security clearance. We think there should be a panel of suitably qualified and experienced lawyers from which appointments would be made. Although cases involving national security information are likely to be rare, there needs to be a reasonable number of security-cleared lawyers available to undertake the role of special advocate when needed. It is important that the panel is of sufficient size to provide a degree of choice and to avoid any suggestion of capture or that the security and intelligence agencies have effectively selected the special advocate.

9.8The Immigration Act 2009 provides for a panel of designated lawyers who are available to undertake the role of special advocates. The other two statutory regimes that make express provision for special advocates, the Telecommunications (Interception Capability and Security) Act 2013 (TISCA) and the Health and Safety at Work Act 2015, do not establish predesignated panels. It is left to the judge to appoint a barrister or solicitor as a special advocate to represent the non-Crown party’s interests. Before appointing a lawyer as a special advocate under those statutes, the judge must be satisfied that the person holds an appropriate security clearance and is suitably qualified and experienced to fulfil the role of a special advocate.

9.9While this approach achieves much the same result, we recommend for reasons of certainty and efficiency that new legislation follow the approach in the Immigration Act and require that a panel of appropriate security-cleared lawyers be designated as special advocates.

9.10We recommend having one reasonably large and broad panel that can be utilised under any relevant regime or in civil or criminal proceedings. New legislation should specify or at least recognise the process for designating a lawyer as a member of the special advocate panel from which appointments in individual cases would be made. Given the complex and difficult nature of the role, we think that it is important that senior and experienced counsel be available on the special advocate panel.

Appointment for a particular case

9.11The non-Crown party should be able to nominate a lawyer from the panel for appointment. The non-Crown party would apply to the court, and the court would then appoint a special advocate from the panel to represent the non-Crown party’s interests. The court would have the power to refuse to appoint the nominated person and appoint another panel member instead. However, this should only happen in exceptional circumstances, and the party’s nominee would almost always be appointed. We do not think that it is appropriate for the Crown to have a right to nominate a panel member to be appointed as the advocate in any particular case.

Designation, training and support

9.12One advantage with having a panel of designated special advocates is that a clear standard can be set as to the appropriate knowledge and experience that is needed. While security clearance and litigation experience are obviously fundamental, there is also a need for advocates to have a degree of specialist knowledge and understanding around intelligence methods and capacities.

9.13As part of our review, we have talked to special advocates in the United Kingdom and in Canada. Advocates in both jurisdictions have told us they need significant support in order to do their jobs. There are mechanical aspects to this; special advocates will need assistance in how they store documents or in how they are able to access secure materials. They will also need secretarial and support services because these must be security-cleared and might not otherwise be available. There is also the need to provide advocates with professional development and support, including some kind of networking of shared experiences that lawyers customarily enjoy in other areas of practice.

9.14In the United Kingdom, special advocates have benefited from support provided the Special Advocates Support Office, which is housed with the Treasury Solicitor’s Office. While there will always be concerns about the adequacy of such support and fears over perceived conflicts of interest as a result of having support provided from within the government, such support seems to us a crucial part of the special advocate process in the United Kingdom.

9.15In our view, New Zealand needs to consider what support services can be provided within New Zealand and how this can best be done. Although there is much more use of special advocates in the United Kingdom than there is ever likely to be in New Zealand, there is insufficient work for those who work in the Special Advocates Support Office to solely work supporting special advocates. Any New Zealand equivalent must take account of the reality that staff will need to also do other work and the perceived conflicts of interest associated with having support provided from within the government. Moreover, it may be more difficult to host a programme like the Special Advocate Support Office within New Zealand’s Crown Law Office, given the smaller size of Crown Law.

9.16We have strong reservations about an approach that relies on junior Crown-employed lawyers to provide legal and research support to special advocates. Instead, consideration should be given to security clearing a number of more junior private sector lawyers who would be available, perhaps as assistant special advocates, to assist the special advocate appointed by the Court. One of the senior special advocates could be allocated a coordinating role amongst the others to ensure that assistant counsel is made available.

9.17Experience overseas also shows that it is important that lawyers acting as special advocates are able to access a degree of expert assistance on security issues. While this can be partially addressed by training, there will also need to be some capacity to engage security advisers who are able to work with special advocates in some situations.

9.18Ultimately, how the necessary support and training is provided is an administrative rather than law reform matter, but we would suggest that meaningful legal, technical and administrative support is essential, as is the need to ensure that the support is both competent and sufficiently independent.

Costs of special advocates

9.19The cost of a special advocate and their support needs to be paid by the Crown. This is the approach taken in the Immigration Act and the other existing legislative schemes. However, the court is still able to make a costs order against the non-Crown party if the circumstances of the case justify such an order. Having the Crown cover the cost associated with the use of closed procedure recognises that the cost of having a special advocate involved are incurred for the benefit of the Crown to protect its interest in the information.

Access to all national security informationTop

9.20The special advocate in a particular case will need full access to all relevant national security information that is in contention in the proceedings. The advocate would be under a statutory obligation to keep this material confidential and to not disclose it, except as expressly permitted under the regime. The practicalities around accessing and managing the national security information both by the advocate and by the court itself need to be considered. As discussed above, we would contemplate that lawyers would need support to fulfil those security obligations.

Restrictions on communications with the affected partyTop

9.21Submissions from the New Zealand Law Society, the New Zealand Bar Association and the judiciary all stressed the importance of a special advocate being able to communicate with the affected party and the party’s lawyer in order to properly fulfil the role. We agree that the special advocate must have access to the party whose interests they represent to understand the case and to view the national security information in context. Without reasonable access, they can do less to mitigate the prejudice of closed procedures. However, access after the special advocate has seen the protected material does potentially make it more difficult for the advocate to balance their competing duties to the person whose interests they represent with their obligation to keep information secure.

9.22In the United Kingdom, special advocates have taken the view that the extent of the restrictions on communication amount to an “absolute bar on direct communication between special advocates and open representatives”. They consider that this “is the most significant restriction on the ability of special advocates to operate effectively”.134 This is a significant tactical disadvantage for special advocates who are unable to communicate with the party they represent without disclosing the communication to the Crown party. We think that, while some restrictions must be placed on communications after the special advocate has accessed the national security information, including contact with the affected party’s lawyer, channels of communication still need to be as open as possible.

9.23After considering the points raised by submitters and the difficulties of the approach adopted in the United Kingdom, we favour an approach under which the court oversees any communications between the special advocate and the affected party or their lawyer after the special advocate has been provided with access to the national security information. Up until the time that the special advocate has access to the material, there should be no restrictions on communication between the special advocate and the affected party or their lawyer. Having a degree of court oversight in respect of communications after the point in time when the special advocate views the national security information works to protect all of the parties. We consider this preferable to any requirement that the Crown be notified of communications.

9.24However, the legislative scheme must have sufficient flexibility for the court to issue appropriate orders so that those communications can be as efficient as possible. For example, the court could in an appropriate case approve a communication plan that might allow reasonably free communications in relation to certain matters. It would not always be necessary for the court to approve each instance of communication.

9.25The special advocate would have an unrestricted ability to communicate with the Crown’s security-cleared lawyers as there is no good reason to limit this.

Challenging claims of national security and non-disclosureTop

9.26Under the approach we have developed, special advocates will be integral to preliminary hearings and will be able to challenge claims that information cannot be disclosed. After the special advocate has viewed all the information in question, they will be able to challenge (if there are grounds to do so) the Crown’s claim that the information is national security information and that it needs to continue to be dealt with in closed procedures. This is consistent with the approach taken in other jurisdictions. In their international study of special advocates, Waldman and Forcese concluded that special advocates “clearly see as one of their key (and perhaps principal) roles pressing for greater disclosure”.135 We see advocating for greater disclosure as a very important part of the special advocates’ role. In challenging the Crown’s claim for non-disclosure, they would work to ensure that information that can be disclosed is dealt with in open hearing.
9.27The scrutiny by special advocates should assist in addressing concerns that material may be unjustifiably claimed to be national security information.136 Their role during the preliminary stages of arguing for greater disclosure to the affected party is not an all or nothing exercise but rather a mechanism for identifying whether some of the information for which protection is claimed could be released to the affected party. For example, a special advocate could argue that only parts of a document need to be withheld.

Input into whether closed procedure is usedTop

9.28In civil proceedings and in appeals and review proceedings, special advocates should also, at the preliminary hearing, be able to advocate for the affected party on how information should be protected. This includes the question of whether the court should exclude information that cannot be disclosed and whether the court should make an order that part of the substantive case be heard under a closed procedure. Special advocates should be able to submit on the procedural pathway for dealing with the national security information in any particular proceeding.

Input into summary of information provided to the affected partyTop

9.29Under the special advocate models in the United Kingdom, Canada and Australia, once proceedings are before the courts, the judge oversees and is able to authorise disclosure of a summary or “gist” of the national security information to the non-Crown party. The Canada Evidence Act 1985 and the National Security Information (Criminal and Civil Proceedings) Act 2004 in Australia 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. 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. In New Zealand, the Immigration Act requires that, once proceedings are before the Immigration and Protection Tribunal (or in relation to an appeal, the High Court), a summary of the allegations arising from the national security information must be submitted by the Crown to the presiding judicial officer for approval.

9.30In all of these regimes, the legislation gives little guidance as to the content of the summary, and this question is largely left to the courts. How much information must be disclosed to the non-Crown party to ensure that basic natural justice requirements are satisfied is partly contextual, so it is difficult to specify. We have taken the view that, in civil proceedings, the court should normally authorise a summary as one of the ways in which the non-Crown party can be as informed as possible in respect of the material. However, we think that there may be situations where the nature of the security information means that a meaningful summary cannot be provided without disclosing material that must not be disclosed. We therefore recommend that the default position is that a summary that is authorised by the court should be provided but that, where the court is satisfied that a summary cannot be provided, the court may waive that requirement.

9.31In Chapter 7, we have recommended that a summary of grounds is to be provided after an administrative decision is made where rights are affected and full grounds or information can’t be disclosed for security reasons. This means that, when any case then comes before the courts on appeal or review, the party will already have a summary. The relevant court or tribunal dealing with the appeal or review should have judicial oversight over the summary of information once the case is before it and should have the power to approve any modifications or amendments to the summary for the purposes of those proceedings.

9.32The special advocate’s role should extend to making submissions in respect of the content of the summary. They should try to ensure that the summary discloses sufficient information to give the affected person an opportunity to comment on any potentially prejudicial information they have not been given. In civil proceedings, the special advocate would also make submissions on the question of whether a summary can be made available. The summary must be sufficient to provide the affected person with enough information so that they can play a meaningful role and can provide instructions to their counsel and also brief the special advocate.

Powers of special advocatesTop

9.33Special advocates should have the necessary powers to operate effectively within a closed hearing. For example, in substantive proceedings, the advocate needs similar powers to those that the affected party’s lawyer would have at hearing. He or she should be able to call witnesses, cross-examine witnesses and exercise other powers in respect of the closed procedure that counsel would normally have in order to protect the interests of the person they are representing.

Recommendations

R30Legislative provisions should provide that the role of a special advocate is to represent the interests of the non-Crown party in a closed procedure (including closed preliminary hearings).

R31 A limited statutory immunity should protect special advocates from claims of professional misconduct or unsatisfactory conduct as lawyers under the Lawyers and Conveyancers Act 2006 where they are acting in accordance with the requirements of their role as special advocates.

R32There should be a panel of designated security-cleared lawyers who are suitably qualified and experienced to undertake this work from which special advocates are appointed.

R33The Government should consider how best to provide necessary training and logistical support for those appointed to the panel in order to ensure that New Zealand can maintain a high level of knowledge and capacity within the panel of special advocates.

R34The costs of the special advocates and the cost of their support should be met by the Crown.

R35The court should have the power, to be exercised on application by the non-Crown party, to appoint a special advocate from the panel of designated special advocates to represent the non-Crown party’s interests in a preliminary hearing. The court should appoint the advocate who is nominated by the non-Crown party unless there are exceptional reasons requiring the court to appoint another panel member instead.

R36The appointed special advocate should have full access to all “national security information” at issue in the case and should be under a statutory obligation to keep that material confidential and to not disclose it, except as expressly permitted under the regime.

R37After the special advocate has been given access to the national security information, he or she may only communicate with the non-Crown party or the party’s lawyer in such terms as are permitted by the court.

R38The appointed special advocate should be able to submit on any matter relevant to the use of national security information, including:
  • the designation of information as “national security information”;
  • the level of redaction of any information that is to be partially disclosed to the affected party;
  • the content of the summary of information, in particular, whether it discloses sufficient information to give the affected party an opportunity to comment on any potentially prejudicial information they have not been given; and
  • whether a closed procedure should be used or whether information that cannot be disclosed should be excluded from proceedings.
R39A special advocate must have adequate powers within the closed hearing to be effective. In particular, the advocate should be able to call witnesses and cross-examine witnesses in closed procedures and exercise other powers that advocates normally have in order to protect the interests of the person they are representing.
133An amicus is a lawyer who is appointed by the judge to assist the court.
134Kent Roach “Secret Evidence and Its Alternatives” in Aniceto Masferrer (ed) Post 9/11 and the State of Permanent Legal Emergency (Springer, Dordrecht, 2012) at 186.
135Craig 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 42.
136On 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: Kent Roach, above n 134 at 188.