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21 The Bill has been designed to allow greater ability to use classified information both in immigration and in refugee and protection decision-making, while creating natural justice protections for the non-citizen. Almost all the submissions contain some level of opposition to the classified information provisions. In particular, submissions focus on the:
1. definition of classified information
2. need for a summary of allegations to be provided in all circumstances, and
3. limitations on the role of the special advocate.
There are also other aspects of the classified information provisions that could be subject to further refinement in the Bill consistent with earlier Cabinet decisions [CAB Min (07) 14/1A, CAB Min (07) 18/3]. Where these are not addressed below, they are included in the appendices.
It is recommended that the classified information provisions be a code for natural justice in immigration and in refugee and protection decision making. Any proposal to replicate the provisions in the Bill in other legislation where the Government is seeking to use classified information, such as in the Terrorism Suppression Act 2002, must be carefully considered.

24 Submitters have expressed concern that any public service chief executive can certify information as classified information. In response, it is recommended to limit classified information to information from specified security, defence, law enforcement, and border agencies . It is also recommended that MFAT and DIA be able to certify information as classified information, DIA because of their responsibilities for New Zealand citizenship.
The Office of the Ombudsmen (the Ombudsmen) made three specific recommendations with regard to the definition of classified information. The first recommendation is to maintain the applicability of the Ombudsmen Act 1975, Official Information Act 1982 (OIA) and Privacy Act 1993 (the Privacy Act) through the insertion of a specific clause. The effect of this will be that these Acts will operate in parallel with the provisions of the new legislation, as per the status quo. This proposal is supported by the Privacy Commissioner.
The second recommendation was to delete the words �in the opinion of the chief executive� in clause 5(1) to make the definition of classified information more objective. This would be consistent with the OIA and the Privacy Act. In addition, the Ombudsmen recommended that the chief executive�s power of delegation under section 41 of the State Sector Act 1988 should not apply to this clause. This will mean that chief executives have to make the decision to certify information as classified personally.

27 A number of submitters are of the view that all potentially prejudicial information (PPI) should be disclosed to non-citizens if it is to be used in decision-making. In particular, the Privacy Commissioner expressed concern over the use of undisclosed PPI in refugee and protection decision making.
Those submissions fail to recognise the imperative that New Zealand must be able to act on reliable information that, for security reasons, cannot be disclosed in its entirety. However, in order to ensure a greater natural justice balance in the Bill and respond to the concerns of submitters, it is recommended that classified information cannot be used unless a summary of allegations can be provided to a non-citizen, so that they may be meaningfully informed of the gist of the prejudicial allegations.
The Privacy Commissioner recommends that classified information should not be used unless a summary of the �adverse information� can be provided. However, there is a substantive difference between the requirement to provide a summary of �allegations� and a summary of �adverse information�. The intent of the summary is to enable a non-citizen to be meaningfully informed of the gist of the prejudicial allegations. Being informed of the prejudicial allegations will enable the non-citizen to rebut them in the course of the PPI process and during any appeal. This can occur without all the �adverse information� contained in documentation being summarised.

30 Submitters also express concern about the limitations on the role of the special advocate, in particular, their inability to lodge proceedings on behalf of a non-citizen under clause 235 of the Bill (which establishes the role of special advocates). It is recommended that this limitation be lifted.
A special advocate may be the most appropriate person to lodge an appeal on a point of law, or seek judicial review on behalf of a non-citizen where the appeal or review relates to the classified information aspect of their case. It should be noted, however, that it is not intended that special advocates be given the ability to lodge an appeal or review in their own right. This would be inconsistent with the role of a lawyer or agent in any case.
It is further recommended to the Committee that the Bill be redrafted to clarify the role of special advocates in matters involving classified information as having a duty to:
1. the Immigration and Protection Tribunal (the Tribunal) and courts
2. ensure that classified information remains protected, and
3. represent the interests of the appellant.

As drafted, the Bill requires the Tribunal to make first instance refugee and protection decisions when they involve classified information. This was intended to protect the classified information by limiting the number of people who had access to it. It also means that one appeal avenue is removed for a refugee and protection claimant. The likely result will be, however, longer and more costly appeal hearings because appropriate, detailed preliminary work has not been undertaken by a determination officer making a first instance decision. The intention is that a limited number of senior determination officers would be security-cleared to enable them to make these decisions.
It is recommended that Cabinet rescind its previous decision that �all refugee and protection decisions using classified information must be made by the Immigration and Protection Tribunal� [CAB Min (07) 25/1A], and instead, that the Bill be amended so that senior, security-cleared determination officers make first instance refugee and protection decisions involving classified information. While this matter has not been the subject of a substantial number of submissions, the proposal is supported by the classified information Senior Officials Group and the Refugee Status Appeals Authority (RSAA).