Safeguarding New Zealand's borders?

Allan Mackey takes a look at the Classified Information Scheme under the Immigration Act 2009

The classified information (CI) scheme in the Immigration Act 2009 (Act) is an important addition to New Zealand's immigration and international protection regime. Prompted by the many complex issues that arose in litigation relating to Mr Ahmed Zaoui over several years in the last decade, the scheme introduced seeks to achieve an appropriate balance between the real need for national security (particularly following 9/11) and adherence to the rule of law, natural justice, and New Zealand's international obligations. This is explicitly provided for in the Act's purpose set out at section 3(1), and through the implementation of that purpose at section 3(2)(d). Whether it achieves that balance ultimately will only be borne out through individual cases. New Zealand will follow the UK and Canada by introducing such a scheme in a common law jurisdiction.

I would say at the outset, and consistent with the balance the scheme aspires to, it is now recognised in most democratic countries that a fair balance must be struck between total disclosure and total secrecy in this process. Adherence to the rule of law and principles of natural justice are at the core of the common law and European jurisprudence on these issues. In my view, which is shared by my colleagues in the UK, the credibility of a CI jurisdiction depends on maximising the amount of information made available to persons affected/appellants from which they can mount their defence, whilst at the same time giving strong and appropriate weight to the real need, in the current world, to protect the security of the nation and the sources and methods used to obtain such "classified information".

The credibility of decisions from tribunals and courts involved in this work, and for the Immigration and Protection Tribunal (IPT), both from an international and domestic viewpoint, will turn on getting this balance correct. As the Zaoui case and similar overseas examples have shown, there is high media and public interest and scrutiny at every stage of this process. It is under this scrutiny that a significant and balanced effort must be put in by all concerned to be seen to maximise the ability of appellants to defend the case against them without exposing the country to any form of realistic security risk. A core issue, and a test, of the New Zealand scheme, will be whether it provides a pragmatic and perceived contestable process that results in maximising information in the "open" arena. The scheme, as designed, places a very heavy burden on the IPT to achieve that, using a primarily inquisitorial process. 

Legislative scheme

Definitions

Section 4 of the Act is the primary definition section. Of interest to this discussion is the definition of "designated agency" for the appointment of special advocates and the definition of "security". In terms of the latter, this includes the "the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act". The legislation itself does not define a "terrorist act", presuming that recourse would have to be made to the Terrorism Suppression Act 2002. 

 Section 7 defines "classified information" as information that "the Chief Executive of the relevant agency certifies in writing cannot be disclosed" (except under the Act) because:

(a)          the information might lead to identification of the source, nature, content, or scope of the information or the type of assistance or operational methods used, it is about particular operations undertaken, or it has been provided to the relevant New Zealand agency by the Government of another country or international organisation and cannot be disclosed because the government or agency will not consent; and

(b)          the disclosure of the information would be likely to prejudice the security or defence of New Zealand or its international relations or to prejudice the entrusting of information to the Government of New Zealand on a confidential basis by other countries or international agencies, or prejudice the maintenance of law including prevention, investigation, or detection of offences and the right to a fair trial, or endanger the safety of any person.

The relevant agency for this section means the New Zealand Government agency that holds or is the source of the CI. 

 This does not significantly alter the definition of "classified security information" in the Immigration Act 1987 at section 114B, but the application is wider.

 
Use of CI

Sections 33 - 42 of the Act set out the authorisation for the use of CI in decision making by the Minister. They determine the ability to receive a briefing, the protection of CI, withdrawal and updating, and outline the process where a decision is made using CI.

Section 33(1) provides:

 "Classified information may be relied on in making decisions or determining proceedings under this Act if the Minister determines that the classified information relates to matters of security or criminal conduct."

"Security" is defined at section 4. However, there is no definition of "criminal conduct". Nor is there any suggestion of a requirement of seriousness of offending. Presumably, this will be interpreted restrictively, but the legislative wording leaves this very open.

Section 33(2) sets out the categories where the Minister may use CI. The first relates to decisions made under Parts 3, 4, and 6 of the Act covering visas, arrival and departure, and deportation. The second category concerns decisions on refugee or protection status under Part 5 of the Act. Here the Minister must direct the Chief Executive of the relevant agency to provide information to the IPT so it may use it when making a decision in relation to recognition as a refugee or protected person, or cancellation of recognition. The third category concerns situations where the CI is first raised on appeal. Here the Minister must refer the information to the relevant tribunal or court. The final category concerns applications for warrants of commitment under Part 9. In these cases, the Minister must refer the information to the Chief Executive.

 Section 35 provides for the protection of CI. It must not be disclosed except as expressly provided for (by sections 241(1), 259(1), 267(4), 269(4), 270(3)). At the same time, section 36 determines that the Chief Executive of the relevant agency must present CI to the Minister that is balanced and includes any exculpatory information. Finally, for this part, section 37 allows for the withdrawal or updating of CI.

Summary of information

Section 38 is the key trigger for any discussion of decision making involving CI under the Act. Pursuant to this section, a summary of allegations is to be developed where CI is used in relation to an application for a visa when the applicant is onshore, the application is for a residence class visa, a person is liable for deportation, and for refugee and protection decisions at first instance. 

In those cases, the Chief Executive of the relevant agency and the Minister (and the refugee and protection officer where relevant) must agree a summary of the allegations arising from the CI, except to the extent that the disclosure would prejudice the national security interests set out in section 7.

Where a decision of the kind referred to in section 38 is made using classified information, under section 39, the person subject to the decision must be informed of the fact, with reasons (except if they would involve disclosure) and any appeal rights and the right "to be represented" by a Special Advocate (where appeal rights are available).

Under section 40, it is provided that except for the provisions of sections 38 and 39, the Minister is not required to provide potentially prejudicial information based on CI for comment or give reasons for the decision. Under section 40(2) and (3), it is spelt out that there is no requirement to make available CI or a summary where section 27 applies or in relation to expressions of interest to apply for a visa, transit visas, or applications for entry permission.

At this point, it is important to note that there is no "contestability" of the CI. The summary is simply prepared without reference to the affected person and there is no involvement of a Special Advocate. 

The role of the Immigration and Protection Tribunal

The special procedures where CI is involved in proceedings before the IPT are set out in sections 240 to 262 of the Act. 

Panel

Section 240 provides that proceedings of the IPT involving CI must be heard before the IPT Chair (who must be a District Court Judge) or the Chair and one or more nominated District Court Judges. The nominations are to be made by the Chief District Court Judge and the Judges will be seconded to exercise the jurisdiction. A maximum of two District Court Judges, other than the Chief District Court Judge, may be nominated at any one time. 

Of interest here is that proceedings involving CI will be heard by District Court Judges. While there is no doubt that nominations by the Chief District Court Judge to the IPT would be sensible and cognisant of the issues and CI involved, a situation could well arise where the judges could be hearing these cases and yet have little or no experience in refugee, protection or indeed, immigration law. Presumably, this is the purpose of the "counsel" that the IPT (or court on appeal) under section 269 may appoint to assist in understanding and interpreting these layered issues. The reality, though, is that, in New Zealand, we have a limited pool of sufficiently qualified individuals to perform this function to ensure New Zealand's consistency with the international development of security and protection concerns (similarly with the Special Advocate role).

The Act then sets out a rather layered process for the use of CI at the IPT stage.

Preliminary hearing

Section 241 is the "preliminary hearing" section. This provides that the IPT must be given access to CI that was either used to make the decision that is on appeal or is first raised in the course of an appeal, or is directed to be provided to the IPT by the Minister. Clearly, in the latter two cases, if CI is raised in the course of an IPT appeal before a panel not consisting of the Chair of the IPT or the Chair and District Court Judges, the matter would have to be abandoned and recommenced before a section 240 compliant Tribunal.

Section 241(2) requires a preliminary hearing in which the relevant agency presents the CI. This is a closed hearing. The purpose of that preliminary hearing, stipulated by section 241(3), is not to enable the IPT to actually determine the content of the CI that remains in the "closed" arena, but to enable the IPT and the Special Advocate to "understand" the CI and question the relevant agency. 

This does serve a purpose in allowing panel members to come to grips with the CI. The way that CI is presented is done in a language of its own. For those unfamiliar with the terminology and expressions used, it is impossible to actually appreciate its content and make any sense of it.

However, to have a separate hearing in order to "understand" the information seems to be an additional procedural step that is unnecessary. Ideally, this should be the period during which the Special Advocate and the Crown can, in an adversarial manner and between themselves, pare down the volume of CI relied upon and bring as much as possible into the "open" context. Only then, with a much smaller amount of CI to address, would the IPT in a substantive hearing have to determine the ultimate utility of the information. This is essentially the SIAC process and has worked well. Any problems "understanding" the CI at the substantive hearing could be dealt with by the special adviser or counsel and would be resolved with experienced panel members hearing cases.

Approval of summary

Nevertheless, section 242(1) then goes on to set out the process surrounding the IPT's approval of a summary of allegations. The stated purpose of this section is 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".

However, and despite this stated purpose, there appears no ability in the section for the appellant or affected person to actually comment on the formation of the CI. Crucially, section 242(7) makes clear: "To avoid doubt, a special advocate may not be involved in the process of approving, amending, or updating a summary (including an updated summary)."

Thus, it is the IPT that is tasked with approving a summary of the CI developed by the relevant agency, or modifying the summary, but only to the extent that modification would not prejudice the national security interests referred to in section 7. This all occurs without the involvement of the appellant/affected person or the Special Advocate.

This is a procedure at variance with the UK SIAC approach as it appears to set up a far less contestable basis for maximising the material openly disclosed to an appellant or at least maximising the "gisting" of the CI for the appellant and his/her "open" representation. ("Gisting" is the term used in the UK for the provision of an outline or summary of prejudicial information to an appellant, without disclosing classified information, sources, etcetera, the aim being to allow an appellant to respond to the generality of the claim against him/her.)

In seeking to replicate the process at first instance and by avoiding a purely adversarial approach, the legislation does not provide a perception of contestability that is essential in this area. The preliminary hearing and the summary of allegations process, with heavy IPT involvement, does not immediately suggest a fair and impartial process.

Substantive hearing

Section 243 sets out the matters to be considered by the IPT in the "substantive hearing", including whether the CI is relevant, of the kind specified in section 7(2), credible, and the substantive grounds of appeal. Where the CI is not relevant or not credible, the IPT must disregard that information. For completeness, section 244 allows for a mixture of open and closed hearings.

Appeals/protection of CI
Sections 245 to 254 provide for appeals to the High Court on points of law and beyond that, to the Court of Appeal and the Supreme Court, by leave. This can be compared with the SIAC jurisdiction, which commences at the Superior Court of Record level, with a High Court Judge presiding, meaning that appeals from SIAC go directly to the Court of Appeal in the UK. I have not reviewed in any depth here the provisions relating to matters on appeal. They essentially reflect the process at the IPT stage, and my main concerns remain. 

Section 262 relevantly provides restrictions on appeal and review for cases involving CI. Specifically, no appeal or review can be brought except as provided for in the Act, including:

• the determination of the Minister that CI may be used;
• the form and content of the summary;
• the form and content of the information provided;
• the form and content of the presentation by the Chief Executive of the relevant agency;
• the form or content of a summary and modifications;
• a decision to withdraw, update, or add to CI; and
• no review must be brought in relation to any appeal before the IPT unless the IPT has issued final determinations on all matters subject to the appeal.

This is a significant restriction on judicial review and the accountability of public officials' decision making. However, it has been suggested that the Ombudsman may play a role in being able to investigate the quality of advice behind certain decisions (see Tennent, D. Immigration and Refugee Law (2010) at 310). Whether that does indeed occur, of course, remains to be seen.

Protection of CI

Section 259 sets out the obligations and powers of the courts and IPT to protect security in proceedings involving CI, even if they consider the information does not meet the criteria set out in section 7 of the Act. The rules and regulations that must flow from section 259 to ensure that confidentiality is maintained will of course be an essential part of the administrative structures required for CI cases.

This incorporates some very practical queries including the movement of papers, the location of hearings, and staffing issues, to ensure the secrecy of the information. What sort of security regulations will be put in place to ensure the protection of the information? In London, it was extremely simple given the proximity of the courts, senior counsel, and security agencies to each other. This is complicated in our context with the IPT operating out of Auckland and the SIS in Wellington. These sorts of questions should be answered now and before the arrival of another high profile CI case.

Section 260 in addition provides for ancillary general practices and procedures to be agreed between the Chair of the IPT, for CI heard before the IPT, and the Chief Justice and the Attorney General for all other proceedings. 

Special Advocates

Sections 263 to 268 of the Act set out the Special Advocate scheme. In essence, it operates as follows:

• Triggered when a decision is made, or proceedings are undertaken, that involve CI.
• A Special Advocate is then appointed by the ‘designated agency' to represent the affected persons in proceedings involving CI.
• The Special Advocate is provided with the CI.
• Once that information has been provided to the Special Advocate, he or she can only communicate with other persons as provided for by the Act.

 As with the entire CI scheme, the involvement of Special Advocates is complex and raises a number of issues, some of which I have already touched on. Particularly relevant to Special Advocates is the contestability of CI, the effectiveness of Special Advocate representation, and the complexity of the communication regime.

Section 263 is a key provision setting out the role of the Special Advocate. Primarily, that is to "represent a person who is the subject of a decision involving classified information or proceedings involving classified information".

Section 263 specifically provides that the Special Advocate may lodge or commence proceedings, make oral submissions, cross-examine witnesses, and make written submissions to the court or Tribunal in fulfilling the role. This section also provides that the Minister or Refugee Protection Officer (RPO) must give the Special Advocate access to the relevant CI in consultation with the Chief Executive of the relevant agency. The Special Advocate is under a duty to protect the CI and to ensure that it is not disclosed. The necessary qualifications of a Special Advocate and the manner in which they are recognised by the ‘designated agency' are set out in section 264.

The RPO or Minister is only required to provide the Special Advocate with access to CI after the RPO decision has been appealed. This suggests that although the Special Advocate's role is explicitly to represent persons subject to proceedings or decisions involving CI, that clearly does not include first instance decisions. The value of this first instance decision in the CI context is dubious. It appears unlikely to assist the appellant, the Special Advocate, or the IPT, or indeed the interests of fairness. It is clear that the Act is attempting to ensure that CI proceedings and appeals mirror those in non-CI cases. While that may appear logical at first blush, the value of this approach is debatable. With respect, a more workable result could well have been achieved by a simple refusal and/or deportation decision then a comprehensive preparation and presentation of the case with Special Advocate involvement (in an adversarial manner) straight to the IPT.

Sections 265 and 266 of the Act set out the procedure for appointing a Special Advocate in an individual case. It appears from the Act that the appointment of Special Advocates will occur in five different situations.Where an RPO has made a decision relying on CI that will be subject to an appeal (section 265(2));

1. Where CI is first raised or proposed to be raised before the IPT (section 265(4)(a));
2. Where the IPT has relied on CI and that decision is appealed (section 265(4)(b));
3. Where judicial review proceedings are brought against a decision made under the Act that relied on CI (section 265(4)(c));
4. Where a person is the subject of an application under Part 9 of the Act that involves CI (section 266(1)).

In the first four situations the affected person must be provided with the names of no fewer than three Special Advocates by the "designated agency" (subsections 265(2) and (5)). The affected person can then appoint a Special Advocate within the time frame provided (section 265(6)). Failure to appoint a Special Advocate results in the department ensuring that one is made available (section 265(7)). Under the fifth situation (Part 9 proceedings), the department must make a Special Advocate available to the affected person (subsections 266(2) and (3)).

The appointment of the Special Advocate is vital to the efficacy and credibility of the CI. The fact the Act specifically provides for default appointments, thereby making it impossible to frustrate the process by non-appointment, is important. It also ensures that Special Advocates are appointed to represent the interests of appellants, regardless of their own actions, in every case involving CI.

The appointment of Special Advocates in the UK is now a rigorous and demanding one. Because of the seriousness and complexity of the issues involved, no doubt the UK example can be of great assistance as the CI jurisdiction in New Zealand is implemented. 

The author understands that the "designated agency" may be the Legal Services Agency. If this is the case, significant practical problems could arise in setting up what effectively must be an "instructing solicitors" office for the Special Advocates. The "relevant agency" would have to ensure that the office had the highest level of security to handle the extensive "closed" information, and that such an office would in reality be able to give the required level of support and instructions. The situation may have been improved by the Legal Services Agency now coming into the Ministry of Justice. Ideally, if we had a divided profession in New Zealand, a "Crown Solicitors Office" would, with appropriate Chinese walls, operate the Special Advocate support service. In the UK, the Treasury Solicitors office supports the Special Advocates while also instructing and briefing counsel for the State. Our integrated Crown Law office does not allow that flexibility.

Section 267 governs communications between the Special Advocate and the affected person. This is an extremely complex, and probably long-winded, process. 

This communication can be unlimited until such time as the Special Advocate is provided with the CI. Once that has occurred, the Special Advocate can only communicate in accordance with the legislation (section 267(3)). The Special Advocate is free to communicate with the judges of the IPT or court, the Minister, the RPO, or Chief Executive of the relevant agency (or their security-cleared representatives), the Chief Executive of the Department, or any other persons with whom it is necessary for the Special Advocate to communicate for administrative purposes about matters not connected to the substance of the proceedings (section 267(6)).

The Special Advocate can only communicate with the appellant or affected person with the leave of the IPT or court (as appropriate on appeal or judicial review) (section 267(7)). Communications of this nature must be submitted in writing and the IPT or court can then forward it on to the appellant (section 267(8)). The IPT or court must not forward it if it is likely to prejudice the national security interests in section 7(3). In that case, the court or IPT can amend (section 267(1)(a)), if possible, or simply refuse to forward it (section 267(1)(b)). The affected person is entitled at all times to pass information on to the special advocate through his or her "open" representative.

In addition, a Special Advocate is protected from liability for acting in accordance with the requirements of this Act (section 268). It is important to note that the Special Advocate is not "acting" for the appellant but is there to represent the interests of the appellant only, having been instructed by a government agency.

 Assisting Counsel/Special Advisor

As previously mentioned and linked to the role of Special Advocates, there is also the ability for the IPT or the court to appoint a counsel to assist the court (section 269) or a special advisor (section 270) for proceedings involving CI.

 The exact role of assisting counsel is unclear. Unlike the special advisor, whose potential utility is immediately apparent, the purpose of assisting counsel is not. Competent judges of the IPT (one would assume) should be in a position to undertake their own investigative work outside of the hearing room. However, and as argued above, perhaps this is to assist the IPT or court to understand the type of information and applicable international and domestic law, particularly where the judges are themselves inexperienced in this complex specialised area of law. There is no doubt that New Zealand maintains a limited pool of such skilled and qualified individuals. Alternatively, perhaps this is also to provide for the capacity to appoint a "skilled researcher" with security clearance - something akin to a judge's clerk (or the Legal Associates at the RSAA) - which could be of real benefit from a pragmatic point of view.

Further comparisons with the UK SIAC procedure

In the UK, a separate jurisdiction was established with jurisdiction to consider appeals against immigration and asylum decisions that would otherwise proceed under the provisions of the Nationality Immigration Asylum Act 2002 (NIA Act) (sections 82(1), 83(2), and 83A(2)), but for a certificate issued by the Secretary of State for Home Department (SSHD) under section 97 of the NIA Act. The certification is based on grounds that a person's exclusion or removal from the UK is in the interests of national security or interests of the relationship between the UK and another country or otherwise in the public interest.

The appeal can be either in respect of the certification and/or deportation. All other appeals against immigration decisions by the SSHD come before the Asylum and Immigration Tribunal (AIT).

Both SIAC and the AIT are presided over by a High Court Judge. SIAC is established as a "Superior Court of Record". Appeal rights from SIAC are to the Court of Appeal and beyond that, to the Supreme Court. In addition to a High Court Judge as President, the panels of SIAC also must include a Senior Immigration Judge (from the AIT), who, by nature of the appointment, will be widely experienced in immigration and asylum law. The third panellist is usually a lay person with expertise and experience in the security services or related issues.

This is not the case with the IPT and it will not operate as a "Superior Court of Record" with a separate and specialised jurisdiction relating only to CI. Furthermore, appeals in New Zealand are to the High Court and then to the Court of Appeal and beyond. There is thus an extra step in the determination and appellate process to that in the UK. Also, the CI process becomes enmeshed with the open process, potentially leading to further delay and scheduling difficulties (in order to meet section 252 of the Act and an appropriate "nominated judge").

Breadth of the issues covered

All immigration decisions (involving national security) including refugee and protection decisions, and some deprivation of citizenship decisions are within the jurisdiction of SIAC, along with an immigration bail jurisdiction. Persons "certified by the SSHD" are in practice to date suspected terrorists or a suspected threat to the security of the UK.

The use of CI in New Zealand is given a wider coverage than in the UK as it extends to all immigration-related decisions. The jurisdiction of the IPT (classified information cases) and SIAC in practice will be very similar, with the potential for a wider range of "non-terrorist" cases in New Zealand. There is no immigration bail jurisdiction held by the IPT as this remains with the Courts. No consideration of citizenship revocation issues come within the IPT jurisdiction.

 Operational support

The Special Advocates Support Office (SASO), is a division of the Treasury Solicitors Office in the UK. It provides support service to Special Advocates at the same time as ensuring the protection of the confidentiality of the information involved. Appropriate Chinese walls are established between SASO and the section of the Treasury Solicitors Office providing client support to the government departments involved.

Obviously, the appropriate support of both Special Advocates and counsel representing government departments will need very careful consideration. I am not convinced that the Legal Services Agency is best placed to provide this support.

Conclusion

The CI provisions in the Act are complicated. They are not unworkable, but will require pragmatic and sensible decision making with the involvement of incredibly skilled individuals: people well qualified in international human rights, national security, and immigration law. 

The goal of those skilled people working on CI cases should be to push as much material as possible into the "open" arena through a proper and critical assessment of the relevance and reliability of the proposed CI. Where as much of the information can be seen to be contested, that will provide the public and international community with the confidence that these decisions are taken in the appropriate context, will preserve fairness concerns, and ultimately assist the New Zealand Government in maintaining our national security.

Allan Mackey is a present and former Chair of the Refugee Status Appeals Authority (RSAA) in New Zealand, a Senior Immigration Judge (2001-2007) on the UK Asylum and Immigration Tribunal, a judicial member of the UK Special Immigration Appeals Commission (SIAC) and former President of the International Association of Refugee Law Judges (IARLJ) (2002-2005). This paper reflects his views and comments only, and does not represent the views of the RSAA, UK AIT or UK SIAC.Allan would like to thank the research assistance of Sam Whiting and Michael Timmins, Legal Associates, RSAA, in preparing this presentation.