Can justice be found in secret? A critique of the proposed use of closed material proceedings in New Zealand

Abstract

Closed material proceedings operating under the Justice and Security Act 2013 (UK) exclude non-Government parties, their counsel and the public in proceedings to protect the secrecy of national security material. The excluded party is represented in proceedings by a special advocate. The New Zealand Law Commission recommended the general adoption of closed material proceedings after concluding that current procedures which protect sensitive information in New Zealand are unsatisfactory.

This paper reflects on the existing mechanisms available to protect sensitive information and argues closed material proceedings cannot fairly balance national security with the principles of open and natural justice, in achieving a fair outcome for both parties. The irreducible minimum standards of procedural justice must still be respected in national security cases. The common law doctrine of public interest immunity has the potential for being a sophisticated tool to dealing with sensitive information in national security cases.