Special advocate possible in some exceptional national security proceedings

The New Zealand Law Society says the protection of national security could sometimes justify the use of a special advocate as a last resort in some cases where national security information is kept from affected parties.

The Law Society has released its comments on the Law Commission Issues Paper National Security Information in Proceedings.

The Law Commission is looking at how to reconcile individual rights to justice with the need to protect national security. A key question is how to prevent disclosure of information that might prejudice national security while upholding principles of open justice, procedural fairness and natural justice.

One option the Law Commission considers in cases where “national security information” cannot be disclosed to affected parties is the use of a special advocate – a lawyer who is appointed to represent their interests where they are denied full disclosure of the case against them.

The Law Society says the use of special advocates does not in itself remove the unfairness inherent in a closed material proceedings regime, but 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,” it says.

“However, 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.”

The Law Society says that 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”.

Time-blocking judicial lists supported where appropriate

The New Zealand Law Society says it supports extending time-blocking of Judge and Community Magistrates lists across District Courts, where the particular court considers it appropriate for its size and nature.

The Law Society has provided the Ministry of Justice with feedback from criminal practitioners following a ministry request about the possibility of time-blocking Judge and Community Magistrate lists across District Courts.

At present there is time-blocking of lists in a number of District Courts. Lists are booked into time-blocks of no longer than a few hours and courts book two or three blocks in a day, depending on their size and needs.

Commenting on the feedback it received, the Law Society says waiting time can be disruptive to clients, their employers and support parties, and also for lawyers – particularly legal aid providers who do not get paid for waiting time.

“However, time-blocking lists may be counter-productive in courts with insufficient volume,” the Law Society says. “Some courts have alternative methods for delivering efficiencies, such as grouping counsel’s matters together.”

Amendment needed to maintain accuracy of NZBN Register

Without a requirement for businesses to maintain the accuracy of their information on the New Zealand Business Number Register, there is a danger that the Register will become out of date, the New Zealand Law Society says.

In a submission on the New Zealand Business Number Bill, the Law Society says while a clause creates an offence for false or misleading statements made, there is no requirement to notify the Registrar of New Zealand Business Numbers of subsequent changes in the information.

“If there is no obligation to maintain the accuracy of the information, the Register will likely become and remain out of date, which will undermine the integrity of the Register itself,” the Law Society says.

It says the importance of the accuracy of the Register is demonstrated by the offences created in connection with knowingly providing false or misleading information. There are also obligations to notify the relevant registrar of changes in companies and incorporated societies legislation.

As the success of the NZBN Register and the purpose of the Bill rely on the accuracy of the information on the Register, the Law Society recommends an amendment to the Bill which would create an obligation to notify the Registrar of changes to details and to create an offence of failing to do so.

Recent submissions

The Law Society recently filed submissions on:

• New Zealand Business Number Bill;
• Accessing Court Documents in Civil and Criminal Proceedings: Rules Committee consultation;
• Tax: NRWT related party and branch lending – officials’ issues paper;
• National security information in proceedings: NZLC IP38;
• Taxation (Land Information and Offshore Persons Information) Bill; and
• Building Act emergency management proposals. 

The submissions are available at www.lawsociety.org.nz/news-and-communications/law-reform-submissions.