Immigration Bill 2007: Special Advocates and the Right to be Heard

Abstract

The increasing role of "special advocates" in common law jurisdictions raises fundamental questions about the development of the law in response to new challenges and the extent to which individual rights can be abrogated in the name of national security. Special advocates are employed to examine and challenge classified evidence, withheld from affected persons and their legal advisors, in closed proceedings. They are, notionally, representing the affected person, but face an almost complete restriction on communication once exposed to the classified evidence. This is strikingly at odds with long-established norms of advocacy and a fair hearing, leading the United Kingdom Joint Committee on Human Rights to describe the system as "Kafkaesque".  The special advocate function, widely utilised in the United Kingdom, will be statutorily introduced into New Zealand with the passing of the Immigration Bill 2007, mirroring a similar development in Canada. The Bill extends the use of classified information in immigration decision-making and allows for special advocates to examine and challenge classified evidence in review, appeal or detention proceedings. That Bill is the subject of this article.