Contents

Chapter 7
Disclosure and public interest immunity

What approaches have been taken overseas?

7.53Different approaches have been taken in other jurisdictions. Canada and Australia have enacted statutory schemes that set out a process for the executive’s claim to withholding sensitive information that are quite detailed. The United Kingdom has taken the broader approach of introducing a statutory scheme for closed proceedings for sensitive information to be heard and used in civil proceedings.

Canada

7.54Canada inherited public interest immunity from the United Kingdom but made statutory provision for it in 1970.110 The original statutory position was absolute protection to national security, defence or international relations based on a certificate by a minister of the Crown, but in 1982 this was amended to allow judicial oversight by the Federal Court.111 The Canada Evidence Act was amended again in December 2001 with the passage of the Anti-Terrorism Act,112 in ways that increased the kinds of information over which immunity can be claimed and to make opposition to such a claim more difficult.113
7.55Under the Canada Evidence Act 1985, parties in proceedings and officials must notify the Attorney-General if it is believed that sensitive information will be disclosed in a proceeding.114 The Attorney-General then decides whether to authorise the disclosure of the information. If the Attorney-General decides not to disclose it, the decision is submitted to the Federal Court. There is a two-tiered process so that the hearing regarding the disclosure takes place in a separate court from the final proceeding. The Federal Court decides who can appear at the hearing. Defendants and their counsel may be excluded.

7.56The Federal Court applies a public interest balancing test in deciding whether the information should be disclosed. The Court has the flexibility to decide that the information should be disclosed in part or in summarised form.

7.57If the Federal Court decides to allow disclosure, the Attorney-General does have the power to nevertheless prohibit disclosure by issuing a certificate that “prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity … or for the purpose of protecting national defence or national security”.115 This certificate can only be reviewed on the narrow grounds of whether the information subject to the certificate relates to the permissible ground for issuing the certificate.

7.58In summary, the Canadian process allows the executive to decide whether information should be withheld. The Federal Court then gets to review and decide the matter, but this is still subject to an effective veto by the Attorney-General.

AustraliaTop

7.59Public interest immunity was once wholly a creature of common law in Australia. It is now referred to in state uniform Evidence Acts.116 Particularly in relation to national security, the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) provides for notification to the Attorney-General where national security information may be disclosed in federal criminal or civil proceedings. The Act was introduced as a result of an Australian Law Reform Commission report which made recommendations to create:117

… a flexible system that incorporates both legal and practical solutions, emphasises the central role of the courts, and is consistent with the Government’s stated policies in relation to open government and the proper protection of classified and security sensitive information.

7.60Under the National Security Information (Criminal and Civil Proceedings) Act, as with the Canadian regime, the Attorney-General may determine whether to allow disclosure or not, and then a court considers the matter. The court has the power to determine that the information should be disclosed in full, in part, in summary form or not at all. There is also the possibility for disclosure to be made to a closed hearing.

7.61In the Australian procedure, it is the trial court that makes the disclosure decision. The judge applies a test that requires greatest weight to be given to national security concerns.118 The Attorney-General does not have a right to trump the court’s decision.

United KingdomTop

7.62The watershed House of Lords decision in Conway v Rimmer has had significant influence on the law of public interest immunity in common law countries. It overturned the previous approach established in Duncan v Cammell Laird, which had severely limited the court’s ability to look behind an objection by the Crown. Conway held that it was the court’s responsibly to decide whether evidence should be withheld and established the balancing exercise test and the court’s right to inspect the sensitive materials. However, since Conway the courts in England have continued to show reluctance to subject ministerial claims for immunity to strong scrutiny, and particularly in relation to national security.119

7.63The United Kingdom’s Crown Proceedings Act 1947 contains a similar proviso to discovery by the Crown to New Zealand’s Crown Proceedings Act, although it does not address ministerial certification in the way that section 27(3) of the New Zealand Act does. It appears that the standard process is for the Crown to present ministerial certificates asserting immunity and it is for the court to decide the matter, although considerable deference is given to the Crown’s assertion.

7.64While the Canadian and Australian statutory schemes are generally public interest immunity procedures in that they are about whether information should be disclosed or withheld, the United Kingdom has recently introduced legislation relating to the issue of the use of sensitive information in civil proceedings in a protected way. The procedure does not replace public interest immunity, which will still be available where it is more appropriate to withhold disclosure of information.

7.65The highly controversial Justice and Security Act 2013 (UK) introduced a “closed material procedure” to be used in cases where a successful public interest immunity application would result in the exclusion of evidence without which the matter could not be fairly heard. The legislation resulted from cases that criticised closed hearings on open justice and natural justice grounds and held that the courts could not use their common law powers to hold closed proceedings in civil trials for damages without statutory authorisation.120

7.66The Justice and Security Act allows the court seized of the relevant civil proceedings to determine, following an application by the Secretary of State, whether or not the procedures are to be used. If a closed material proceeding is to be used, the court must consider requiring a summary of the material to be provided to all excluded parties where it is possible to do so without damaging national security. A special advocate may be appointed to represent the interests of the excluded party.

Comparison with New ZealandTop

7.67The Canadian and Australian statutory approaches to public interest immunity involve both a decision from the executive and a determination of the court. This may be the position in New Zealand under section 27 of the Crown Proceedings Act and section 70 of the Evidence Act, although it is not clear whether a certificate under section 27(3) is effectively a veto on the disclosure of sensitive information in the same way that an Attorney-General’s certificate is in Canada. Both Canada and Australia have a more defined and elaborate process to reach a decision about public interest immunity than is the case under the New Zealand statute.

7.68Although the Canadian and Australian schemes are about public interest immunity and the withholding of sensitive information, they do incorporate the ability for the courts to allow the partial disclosure of the information or disclosure of a summary, and in Australia’s case the use of a closed hearing. These are ways in which the sensitive information may be used in civil proceedings without full disclosure.

7.69The United Kingdom has taken the more fundamental step of allowing sensitive information to be used in civil proceedings through the use of closed proceedings that alter general principles about how trials are carried out. New Zealand has no general procedures for closed proceedings but there are several specific regimes that allow classified information to be used in proceedings without disclosure: the Immigration Act 2009,121 Terrorism Suppression Act 2002122 and Passports Act 1992.123
110Canada Evidence Act SC 1970-71-72 c 1, s 41(2).
111Canada Evidence Act RSC 1970 c E-10, s 36 as amended by SC 1980-81-82-83 c 111, s 4. The Federal Court observed a few years later in Gold v Canada, above n 99, at 138 that “[t]he executive had been unable to sustain the credibility of the system of absolute privilege codified in subsection 41(2)”.
112Anti-Terrorism Act SC 2001 c 41.
113Peter Rosenthal “Disclosure to the Defence After September 11: Sections 37 and 38 of the Canada Evidence Act” (2003) 48 Crim L Q 186; Kalajdzic, above n 99, at 311.
114Canada Evidence Act 1985, s 38.
115Canada Evidence Act 1985, s 38.13.
116In Australian states, a claim of public interest immunity may be made under common law (see Sankey v Whitlam (1978) 142 CLR 1 (HCA) at 38) and is also available under section 130 of the uniform Evidence Acts.
117Australian Law Reform Commission Keeping Secrets: The Protection of Classified and Security Sensitive Information (Report 98, 2004) at [11].
118National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 38(8).
119Zuckerman, above n 87, at 709 and 714; Kalajdzic, above n 99, at 305.
120See for example Al-Rawi v Security Service [2011] UKSC 34. There had been several high profile cases involving United Kingdom officials relating to the international transfer of an individual without the legal protection of extradition laws, treaties and due process as a part of the “war on terror” (known as extraordinary rendition). This involved the transfer of individuals for interrogation in countries known to use torture. Some of these individuals later started proceedings against the United Kingdom Government for its role in their subjection to torture. The Government had attempted to use closed proceedings to rely on sensitive information but not have this disclosed to the plaintiffs or public.
121Immigration Act 2009, ss 240−244, 252−262 and 263−271.
122Terrorism Suppression Act 2002, s 38.
123Passports Act 1992, s 29AB.