Zaoui v Attorney-General
[2004] NZCA 228
•17 September 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA166/04
BETWEENAHMED ZAOUI
Appellant
ANDATTORNEY-GENERAL
First RespondentANDSUPERINTENDENT, AUCKLAND CENTRAL REMAND PRISON
Second RespondentANDHUMAN RIGHTS COMMISSION
Intervener
Hearing:6 and 7 September 2004
Coram:McGrath J
Hammond J
O'Regan JAppearances: R E Harrison QC and D Manning for Appellant
C R Gwyn, I C Carter and T M A Luey for First and Second Respondents
R M Hesketh and S A Bell for Intervener
Judgment:17 September 2004
JUDGMENTS OF THE COURT
Judgments Para No McGrath J [1] to [114] Hammond J [115] to [221] O’Regan J [222] to [272]
McGRATH J
Table of Contents PARAGRAPH NUMBER Introduction 1 Facts 4 Judgment under appeal 10 Immigration Act 1987:Part 4A procedures 17 Mr Zaoui’s case 29 Approach to interpretation 32 Warrant of commitment 37 Is detention under Part 4A mandatory? 57 Inherent jurisdiction to grant bail 71 Habeas Corpus orders 77 Is the detention of Mr Zaoui arbitrary? 84 Cruel or degrading treatment 103 Conclusion and summary of judgment 109
Introduction
[1] This appeal concerns the application of provisions in the Immigration Act 1987 (the 1987 Act) and in particular Part 4A which provides for special procedures in the case of persons concerning whom immigration decisions are to be made, where classified information indicates that they pose a risk to national security. Application of the Part 4A process to a person who is not a New Zealand citizen can, following exercise of a right of review, lead directly to the removal or deportation of the person concerned. Part 4A also provides for the detention of such persons, once a preliminary decision has been taken by the responsible Minister to rely upon an earlier decision by the Director of Security that the person is a security risk to New Zealand. If the person seeks a review then he or she is detained while the Director’s decision is reviewed by the Inspector-General of Intelligence and Security, an independent statutory officer who has held office as a Judge of the High Court.
[2] The central issue in the appeal concerns whether the appellant, Mr Ahmed Zaoui, who has the status of a refugee under the United Nations Convention Relating to the Status of Refugees 1951 (the Refugee Convention), and who is also the subject of a security risk certificate under Part 4A which is presently the subject of review, is lawfully detained under the 1987 Act. Mr Zaoui is an Algerian national who is currently detained at the Auckland Central Remand Prison pursuant to a warrant of commitment issued by a District Court Judge at the Manukau District Court on 28 March 2003 under ss114G(6) and 114O of the 1987 Act. Mr Zaoui has made a number of applications to the High Court with the objective of obtaining his release from detention or his transfer to a less onerous form of detention at the Mangere Detention Centre. These applications were heard together by Paterson J in the High Court. In a judgment delivered on 16 July 2004 (Zaoui v Attorney-General HC AK CIV2004-404-2309), the Judge declined all of the applications. Mr Zaoui now appeals to this Court against the decision of the High Court.
[3] One of the applications made by Mr Zaoui to the High Court was an application for Habeas Corpus and Mr Zaoui’s appeal to this Court includes an appeal against the High Court Judge’s refusal to grant his application for Habeas Corpus. Section 17 of the Habeas Corpus Act 2001 requires that appeals to this Court in Habeas Corpus proceedings be treated with urgency. We have accordingly treated this appeal as urgent and also given priority over other Court business to the preparation of the judgment in this matter. Of necessity, that has required us to prefer brevity over comprehensiveness in the treatment of issues raised in the very extensive submissions made by counsel for all parties in this Court. That is not to say that we have not carefully considered those submissions and supporting materials. Rather, it means that we have expressed ourselves in this judgment in terms of broader principles and have referred only to a small number of the numerous authorities which we have considered.
Facts
[4] Ahmed Zaoui arrived at Auckland International Airport on 4 December 2002, having flown from Vietnam on a false passport, and sought refugee status. He was detained under the 1987 Act, first in a police station but from 12 December in Paremoremo Prison. The Immigration Service declined his claim to refugee status on 30 January 2003. He appealed to the Refugee Status Appeals Authority, which upheld his claim.
[5] On 20 March 2003, the Director of Security (the Director) made and provided to the Minister of Immigration a security risk certificate under s114D of the 1987 Act. The certificate stated that:
(a) Mr Zaoui’s continued presence in New Zealand constituted a threat to national security in terms of s72 of the 1987 Act; and
(b) there were reasonable grounds for regarding him as a danger to the security of New Zealand under Article 33.2 of the Refugee Convention.
[6] On 21 March 2003, the Minister made a preliminary decision to rely on the certificate. On 28 March 2003, the District Court issued a warrant of commitment under s144O of the Act, authorising Mr Zaoui’s continued detention in Auckland Prison. The prescribed form for that warrant provided specifically for his detention in a penal institution.
[7] From a summary of allegations subsequently produced by the Director of Security, it appears that the allegations underlying the certificate are that he was involved, in Europe, in clandestine or deceptive activities which threatened the safety of persons. and that aspects of his behaviour en route to New Zealand indicate a continuing security risk. Mr Zaoui denies all these allegations.
[8] Mr Zaoui has applied to the Inspector-General for review of the certificate. Because this is the first time the process has been used, there has been lengthy litigation concerning the process and role of the Inspector-General. Mr Zaoui has, as he is entitled to do, challenged decisions on those matters. Aspects of those challenges are now before this Court, the Crown having appealed and Mr Zaoui having cross-appealed against rulings of Williams J reported at [2004] 2 NZLR 239. Another challenge in the High Court (CIV2004-404-000317, 31 March 2004) led to the resignation and replacement of the Inspector-General. The new Inspector-General has not yet set a date for the review of the certificate. It is estimated that it will be several months at least before the review is completed. Meanwhile Mr Zaoui remains in detention. In total he has now been detained for twenty-one months.
[9] The place of detention initially chosen was Paremoremo prison. For reasons which are not clear Mr Zaoui was held in conditions akin to solitary confinement. That experience has placed a heavy burden on Mr Zaoui’s psychological well-being. After his lawyers made representations, he was transferred to the Auckland Central Remand Prison on 16 October 2003. The conditions of his detention there are less onerous and arrangements have been made for his culture and religion. He receives three 20 minute international calls to his family each week, at no cost to himself, and has the ability to call his legal representatives at any time during the hours of unlock. It appears that Mr Zaoui’s mental state has improved somewhat under this regime, but psychological evidence indicates that it would be in his best interests if he were released on bail. Mr Zaoui’s counsel have sought agreement from the Minister of Immigration for his transfer to the Mangere Refugee Detention Centre (“the Mangere Centre”). This request was refused on the basis that there was no legal option to do so. The Minister of Corrections has also refused a request for his temporary release into the care of the Auckland Dominican Community.
Judgment under appeal
[10] Mr Zaoui then brought a number of applications seeking bail, or release or a change in the place of his detention. The applications were:
(a)An application for review of the decision to detain Mr Zaoui in prison, on the basis that the warrant of commitment issued was ultra vires because it specified detention in a penal institution.
(b)An application for habeas corpus.
(c)An application for bail under the inherent jurisdiction of the Court and/or as a remedy for breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).
(d)Applications to vary the warrant of commitment either exercising an inherent power of the District Court or the inherent jurisdiction of the High Court.
(e)An application for a declaration that Mr Zaoui’s detention and/or conditions of detention are inconsistent with the Bill of Rights Act.
These were heard in the High Court before Paterson J. He delivered judgment on 16 July 2004, dismissing all applications.
[11] In his judgment Paterson J first considered the statutory scheme. He held that s114O of the 1987 Act permitted detention outside of penal institutions, for example in special facilities, barracks or mental hospitals. On the basis of this conclusion, Paterson J held the warrant of commitment ultra vires. The requirement in the prescribed warrant that detention be in a penal institution unlawfully narrowed the statutory scheme. The Judge therefore severed that requirement from the warrant. He declined, however, to order a change in Mr Zaoui’s place of detention, as in his view detention in prison was inevitable in the circumstances as the Mangere Centre was unsuitable for the detention of a person subject to a security risk certificate.
[12] Paterson J then turned to the provisions of the Bill of Rights Act, concluding that the appellant’s rights had not been breached. His conditions of detention did not breach the prohibition on disproportionately severe treatment or punishment in s9. Attempts were being made to accommodate him, and there was no suggestion that the regime was intended to humiliate Mr Zaoui. Nor was there an arbitrary detention under s22 because of the long delays following his lawful detention. The delays were not deliberate, being caused by legitimate efforts to clarify the legal process for the Inspector-General’s review. His continued detention over that period was a reasonable limitation on his liberty in a free and democratic society. Rights concerning the criminal process, insofar as they applied by analogy, were also not breached. The consequence was that there could be no declaration of inconsistency, and remedies predicated on a breach of rights could not be entertained.
[13] Paterson J also rejected the application for bail. The inherent jurisdiction to grant bail was excluded by the statutory scheme, which provided for the efficient resolution of security issues rather than for release on bail. Because of the risks posed by release, that regime was demonstrably justified in a free and democratic society, so the Bill of Rights Act did not require a different interpretation even if one was available. In the alternative, he concluded that the inherent jurisdiction was available only as ancillary relief to a proceeding which was before the Court. There was no proceeding in this case because the review was undertaken by the Inspector-General. Nor, in the absence of a breach of rights, was there any basis to grant relief to remedy a breach of the protected rights.
[14] On the application to vary the warrant, Paterson J decided that the limited jurisdiction of the District Court was ancillary and related to process. It could not include a power to vary the warrant. In any event, the District Court was functus officio having exercised its statutory power. It could not revisit its decision in the absence of the invalidity of the warrant. Finally, the Judge accepted that there was no justification for varying the warrant, the Mangere Centre being an inappropriate place to detain the appellant given his security risk status. For the same reason, any inherent power of the High Court was not appropriately exercised in the circumstances.
[15] The application for habeas corpus was also refused. Mr Zaoui’s detention was lawful, the warrant of commitment having been upheld on review and there being no breach of the Bill of Rights Act making the detention unlawful.
[16] It followed that Mr Zaoui was unsuccessful in his attempt to secure either his release or a change in the place of his detention.
Immigration Act 1987: Part 4A procedures
[17] Part 4A of the 1987 Act is headed Special procedures in cases involving security concerns. It was enacted as part of the 1987 Act by the 1999 amendment and came into effect on 1 October 1999. It comprises ss114A to 114R.
[18] Section 114A states the object of Part 4A in six paragraphs which I summarise. The public interest requires that relevant classified information held by the New Zealand Security Intelligence Service be used for the purposes of the 1987 Act. The information should continue to be protected in that use. Fairness, however, equally requires that there be some protection for the rights of an individual that are affected by the use of the classified information. The balance between that public interest and the individual’s rights is best achieved by allowing an independent person of high judicial standing to consider the information and approve its proposed use for the statutory purpose in the particular case. But if such approval of its use is given under the 1987 Act’s processes, that should also mean that removal or deportation can then normally proceed immediately, with no further avenues of challenge being available to the individual under the Act. This is because of the significance to security of the information used. The final aspect of Part 4A’s object is thus to:
Ensure that persons covered by this Act who pose a security risk can where necessary be effectively and quickly detained and removed or deported from New Zealand. (s114A(f)).
[19] Part 4A provides for the making of a security risk certificate by the Director. The Director may provide the Minister of Immigration with a security risk certificate relating to an individual, not being a New Zealand citizen, concerning whom immigration decisions are to or can be made under the Act (s114D). If the Director holds classified security information relating to such an individual, and is satisfied as to certain characteristics of that information, the Director may provide a certificate to that effect. The characteristics of the classified security information are that it is credible, having regard to its source and nature, and is relevant to particular security criteria under the Act so that, when the relevant criteria are applied to the person’s situation in light of the information, the person meets those security criteria.
[20] Section 114C prescribes the relevant security criteria to be applied in the making of a security risk certificate. The criteria include refugee removal and deportation security criteria which are applicable where a decision must be made concerning whether either step should be taken with regard to a refugee or claimant for refugee status. The relevant refugee deportation security criteria are a combination of any one or more stipulated general relevant deportation security criteria taken together with either or both of two stipulated refugee deportation security criteria. The former criteria are:
(a) the person constitutes a threat to national security under s72 of the 1987 Act; and
(b) criteria that relate to suspected terrorists under s73(1) of the Act.
[21] The latter refugee deportation criteria are:
(a) that there are reasonable grounds for regarding the person as a danger to the security of New Zealand in terms of Article 33.2 of the Refugee Convention, and
(b) that the person is a danger to the community of New Zealand having been convicted by a final judgment of a particularly serious crime in terms of Article 33.2 of the Refugee Convention.
[22] The Minister may then make a preliminary decision to rely on the certificate made by the Director in making decisions under Part 4A of the Act. The Minister may first call for a confidential briefing from the Director, the contents of which the Minister is not permitted to divulge to any other person. If the Minister decides to rely on the certificate in relation to the person, he or she must notify the chief executive of the Department of Labour, which administers the 1987 Act. The notification triggers a process whereby any immigration applications of the person to whom the certificate relates are suspended and, if in New Zealand, the person is detained. The process of detention is initiated by the chief executive arranging for the Police to serve on the person notice of the Minister’s preliminary decision to rely on the certificate (s114G(4)(d)) along with information stating the fact that the certificate has been made, the criteria applied, its potential effect and the right to have the certificate reviewed, and to be heard on the review by the Inspector-General. On serving the notice the Police must arrest the person without warrant, and place him or her in custody (s114G(5)).
[23] The existence of the certificate is sufficient grounds for the conclusion that it certifies. This scheme, however, is subject to a statutory process of review of the certificate on the application of the person it concerns, by the Inspector-General (s114F)). I also summarise the Inspector-General review process briefly, as it is of contextual significance to ascertaining the meaning of the statutory provisions concerning detention that are central to the present appeal. Applications for review by a person served with a notice in New Zealand must be made within 5 days of notification. Importantly, the Inspector-General is under a duty to conduct the review with all reasonable speed and diligence (s114I(3)). The purpose of the review is to determine whether the certificate was properly made or not. That is done by determining if the information which led to the certificate included information which was properly regarded as classified security information, whether it was credible (having regard to its source and nature), whether it was relevant to a security criterion, and whether on its application the person was properly covered by the relevant criteria. Information that is not classified security information may also be taken into account. (s114I(5)). The ultimate question for the Inspector-General is whether the certificate was properly made or not.
[24] The person has a right of appeal to the Court of Appeal against a decision of the Inspector-General which confirms the certificate, on the ground that the decision is “erroneous in point of law” (s114P(1)).
[25] If the Inspector-General decides that the security risk certificate was properly made, the Minister must make a final decision within 3 days on whether to rely on the confirmed certificate. If it is relied on the Minister must direct the chief executive to act in reliance on it (s114K(1)). The consequence of that direction is that any visa or permit held by the person is cancelled forthwith, without right of appeal or review, and a removal or deportation order is made and executed. These actions are subject to the protection that is required by s129X of the Act (for refugees) or s114Q (for refugee status claimants).
[26] I now turn to the provisions in Part 4A for the detention of those who are in New Zealand when served with notice of preliminary reliance on a security risk certificate. The starting point, already referred to, is the obligation on the Police at the time of service of the Minister’s notice, to arrest the person concerned without warrant, place the person in custody and bring him or her before a District Court Judge within 48 hours (s114G(3)(c), (5) and (6).
[27] If the District Court Judge is satisfied on the balance of probabilities that the person in Court is the person named in the Minister’s notice of preliminary reliance, the Judge must issue a warrant of commitment in the prescribed form for the person’s detention (s114O(1)). The warrant authorises the person to whom it is addressed to detain the person named until one of three events has occurred. The first event is that the Police require the detaining authority to deliver up the detained person to execute a removal order or deportation order. The second event is that the detaining authority is notified, by the police or an immigration officer, following success of the person in the review by the Inspector-General, that the person should be released. These events mark the alternative endings of statutory processes. The third event is an order by the High Court on application for a writ of habeas corpus to release the person (s1140(2)).
[28] If the person the subject of the warrant succeeds on the review “or for any other reason the person is to be released” the superintendent of the prison “or person in charge of other premises in which the person is detained” must be notified that the person should be released (s114O(3)).
Mr Zaoui’s case
[29] Mr Harrison QC for Mr Zaoui contends that the High Court has misinterpreted the provisions of Part 4A of the 1987 Act in relation to detention. He argues that an analysis of the scheme of the 1987 Act as a whole, and a consideration of Part 4A’s provisions in the context of other provisions for detention in the various parts of the 1987 Act, point to a different meaning. The argument is also supported by reference to the need, when reading the Part 4A provisions, to have regard to Mr Zaoui’s fundamental rights, which are protected under the New Zealand Bill of Rights Act 1990. On a broad level counsel points to rights of access to justice and substantive rights of all persons under s29 of the Bill of Rights Act. On a more specific level he relies on rights under ss9 (not to be subject to cruel or degrading treatment), 22 (not to be arbitrarily detained), 23(1)(c) (to test validity of detention by habeas corpus and to be released if the detention is unlawful), 23(5) (to be treated with humanity and with respect for dignity of the person), and 27(2) (to seek judicial review of the determination of a public authority affecting rights).
[30] Counsel argues that, so read, Part 4A does not justify arbitrary detention nor preclude a person such as Mr Zaoui who is the subject of a security risk certificate from establishing that the circumstances of the making of the certificate and related detention are factually unjustified for the purposes of seeking bail, release pending completion of the review, or a change in the place of detention. The threat to security that Mr Zaoui is said to present is categorised as being of a low level kind and such that his imprisonment is a disproportionately serious measure. Reliance is also placed on New Zealand’s obligations under the Refugee Convention, Mr Zaoui’s status as a refugee having been confirmed by the Refugee Status Appeals Authority. The protection given him under Article 33.2, as incorporated by s129X of the 1987 Act, is especially emphasised but other provisions are also relied on.
[31] Finally, Mr Harrison contends that the language directing detention in Part 4A does not exclude the possibility of releasing Mr Zaoui under an inherent jurisdiction of the High Court to grant bail or under its habeas corpus jurisdiction which the Act expressly retains.
Approach to interpretation
[32] The application of immigration legislation constantly involves discretionary decisions that lead to the admission, exclusion or deportation of persons who, not being New Zealand citizens, seek to enter or reside in New Zealand temporarily or on a permanent basis. Such decisions, made under statutory authority, will reflect current published government policy as to what the national interest requires. They will also reflect legislative directions concerning human rights standards which arise from international instruments to which New Zealand is a party. In the present context these include the Refugee Convention, which has been incorporated into both Parts 4A and 6A of the 1987 Act by the 1999 amendment and the International Covenant for Civil and Political rights which is principally given domestic legislative effect by the Bill of Rights Act.
[33] Part 6A of the 1987 Act gives legislative effect to New Zealand’s obligations under the Refugee Convention. Part 4A provides a framework for use of classified security information held by the New Zealand Security Intelligence Service which is relevant generally to decision-making concerning immigration status including to refugees, in relation to national security considerations.
[34] On general principles of statutory interpretation, this Court should approach the provisions of Parts 4A and 6A on the basis that Parliament has legislated consistently with its international obligations and read the text accordingly. In the end the text itself, however, is of course central to what Parliament has stipulated: New Zealand Air Line Pilots Association v Attorney-General [1997] 3 NZLR 269; Wellington District Legal Aid Committee v Tangiora [1998] 1 NZLR 139 (CA), R v D [2003] 1 NZLR 41 at [25].
[35] In the case of the Bill of Rights, the issues in the appeal concern in particular its interpretation provisions ss4, 5 and 6 which provide:
4. Other enactments not affected - No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),-
(a)Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b)Decline to apply any provision of the enactment-
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
5. Justified limitation – Subject to section4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6. Interpretation consistent with Bill of Rights to be preferred – Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[36] These provisions require the Court to prefer an interpretation consistent with protected rights where one is reasonably available: Ministry of Transport v Noort [1992] 3 NZLR 260, 272; Quilter v Attorney-General [1998] 1 NZLR 523. Section 4 precludes the Court from reading the legislative text in a way which nullifies it or is so inconsistent with the statutory purpose as to do violence to its scheme. But subject to those limits these provisions require the Court to apply the meaning of the text that is most in accordance with the freedoms protected by the Bill of Rights. In doing so in respect of the Part 4A detention provision of the Act the first step is to identify the meanings that are reasonably available and then to consider which of them least infringes on the protected rights. Depending on what those inquiries show it may be necessary to ascertain the extent to which the right is limited and whether effect can be given to it.
Warrant of commitment
[37] I first address questions concerning the places in which a person may be detained under Part4A of the Act. The issues are:
(a) Whether the legislation permits detention in a place other than a prison;
(b) Whether the regulation prescribing the warrant of commitment was ultra vires; and
(c) Whether there is any power to vary the warrant to alter the place of detention.
[38] Mr Zaoui was detained under a warrant of commitment in accordance with s114O(1)(b). Under that provision, the District Court Judge was required to issue a warrant of commitment in the prescribed form. In this case reg40(4) stipulates that the prescribed form is that set out in Form 9 in sch2 to the Immigration Regulations 1999. Regulation 40(4) is the provision which prescribes Form 9 for this situation. Section 150 of the Immigration Act empowers making of regulations for the purpose of “prescribing forms for the purposes of this Act” and “such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration”.
[39] Paterson J found that s114O does not require that detention of a person to whom that section applies be in a penal institution. Although this was disputed by the Crown in the High Court, it was accepted in this Court that Paterson J was correct in that respect. I believe that concession was rightly made, given the indications in s114O itself that detention in premises other than a penal institution may be permissible under s114O, particularly:
(a) The reference to “Superintendent of the prison or person in charge of the other premises in which the person is detained” in s114O(3); and
(b) The reference to “the person to whom it [the warrant] is addressed” rather than to a superintendent of a prison in s114O(2).
[40] Although s114O appears to allow for detention either in a penal institution or in other premises, the prescribed form of warrant provides only for detention in a specified penal institution. The form of warrant is said to be addressed to the Superintendent of a “specified penal institution”, and directs the police to deliver the person who is subject to the warrant to the “specified penal institution”.
[41] Mr Harrison argued that the regulation prescribing the form of warrant was ultra vires s114O because it limits detention to a specified penal institution and fails to recognise the alternative of detention in other premises in which the person may be detained. He therefore suggested that the warrant itself was invalid.
[42] In the High Court Paterson J found the warrant of commitment, which restricted the place of detention to a specified penal institution, forbade what the statute expressly permitted (detention in other premises) and was therefore ultra vires. However, he found that detention in a prison would have been inevitable even if an alternative form of detention were provided for in the prescribed form, and therefore severed the words “specified penal institution” from the form of the warrant, amended the warrant in that respect. Following severance he held that the warrant was valid.
[43] It is notable that other provisions in the Immigration Act which provide for detention pursuant to a warrant issued by a District Court Judge make provision for the place of detention in an explicit way. Examples of other provisions dealing with detention in the Immigration Act are:
(a)Section 62(2), which deals with detention pursuant to a warrant of commitment made under s60. That provision says that detention will be in a penal institution or in any other premises approved for the purpose by the Judge before whom the person is called;
(b)Section 80(2), which deals with detention under a warrant of commitment issued under s79. That provision says that detention must be in a penal institution;
(c)Section 102(2), which deals with detention pursuant to a warrant of commitment issued under s99, and also provides that detention must be in a penal institution;
(d)Section 128(7), which provides for detention under a warrant of commitment signed by a Registrar or Deputy Registrar of the District Court, and provides for detention to be in a penal institution or in some other premises approved for the purpose by the Registrar or Deputy Registrar.
[44] It can be seen from this list that the place of detention in relation to other provisions in the Immigration Act is determined by Parliament itself, or provision is made for the place to be determined by the decision-maker in relation to the warrant of commitment (either a Judge or a Registrar of the District Court).
[45] In circumstances where Parliament has not specified who should decide the nature of the premises in which a detainee is detained, the question arises as to whether the Executive is entitled to make that choice for all cases through the regulation making power, rather that invariably providing options from which the District Court Judge executing a warrant of commitment may choose.
[46] Here the contrast between Part 4A and Part 3, both of which concern threats to national security, is clearly significant. Part 4A lacks an express provision that detention is to be in a penal institution and indicates that a person may be detained in other premises. It contemplates that the prescribed warrant may permit detention elsewhere than in a penal institution. The reason for taking a different approach to that in Part 3 may reflect the fact that conditional release is not an option under Part 4A, for reasons given later in this judgment. In effect, the question of an alternative to detention of those whose certificates are being reviewed has been left to be dealt with by regulation.
[47] Ms Gwyn properly conceded that it would be possible for the Executive, through an amendment to Form 9, to provide for a place or places of detention other than a penal institution for the purposes of s114O. I agree that that is so. However, I do not consider that it is mandatory for the Executive to provide for a number of different detention options when prescribing the form of warrant for the purposes of s114O. It is within the power of the Executive when making regulations prescribing the form of warrants for the purposes of s114O to prescribe a form which provides only for detention in a penal institution. The discretion created distinguishes the present case from Powell v May [1949] 1 KB 330, in which a by-law purported to prohibit a form of bookmaking expressly permitted by statute.
[48] There are undoubtedly circumstances in which detention in prison would be appropriate while the process envisaged by the Act was undertaken. The reality of the present case, however, is that the process has gone on for a much longer period than appears to have been envisaged by Parliament. In the meantime Mr Zaoui had undergone a prolonged period of detention in conditions which the High Court Judge described as “akin to solitary confinement”. Paterson J said it was difficult to understand why such severe and onerous conditions were imposed on him. Having undergone that period of effective solitary confinement, he has now been confined for a further lengthy period in the remand prison. During the period of his detention, his status as a refugee has been upheld by the Refugee Status Appeals Authority, and as part of that process there has been an independent consideration of many elements of the background to his arrival in New Zealand. As well the Director has provided to him a summary of the security risk certificate.
[49] Thus, the position of Mr Zaoui has changed considerably. At the time of his detention he did not have refugee status, little was known about his background and it was envisaged that there would be a speedy process under Part 4A. Now it has been established that he is a refugee, more is known about his background, the security certificate allows some assessment if not a complete one of the kind at risk he may pose to New Zealand and it is obvious that the Part 4A process will take a total of two years or more to be completed. Accordingly, while it may well be correct, as Paterson J found, that detention in a penal institution is appropriate in the normal course under Part 4A, there are circumstances indicating the desirability of a consideration of the appropriateness of that form of detention in this particular circumstances of this case.
[50] It is apparent from the correspondent in evidence before us that the refusal of requests to transfer Mr Zaoui to the Mangere Centre has been based on a perception that s114O does not permit such a course, rather than on concerns about security. The Minister of Immigration indicated in a letter of 24 December 2003 that there might be scope to do so, but on 2 February 2004 she wrote that “there is no scope legally for Mr Zaoui’s detention other than in a penal institution”. However, she said she was keen for options to be explored to deal with issues relating to Mr Zaoui. The High Court decision establishes that the advice given to the Minister was wrong. That position was accepted by Crown counsel in this Court. There is no legal impediment to Mr Zaoui’s detention at premises other than a penal institution. The Executive could even now arrange for the promulgation of a Regulation to permit that course.
[51] If that course were followed, I take the view that the District Court could give effect to it by varying the warrant. Section 16 of the Interpretation Act 1999 provides:
Exercise of powers and duties more than once
(1) A power conferred by an enactment may be exercised from time to time.
(2) A duty or function imposed by an enactment may be performed from time to time.
[52] The provision has limited effect in situations where a power, duty or function creates vested rights. As Wade and Forsyth (2000) suggest in Administrative Law:
In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, “the power may be exercised and the duty shall be performed from time to time as occasion requires.” But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.
For this purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case. An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act “from time to time as occasion requires”. But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality. Citizens whose legal rights are determined administratively are entitled to know where they stand (p235).
The passage was directed at administrative decision-making, but I see the principle as being applicable in this context. See also In re Wilson [1985] AC 750, 759.
[53] In Goulding v Chief Executive of the Ministry of Fisheries CA256/02, 24 October 2003, this Court said of the comparable power in s13 to correct errors that it could not be exercised simply because the decision-maker had changed his or her mind. Similarly, s16 is unlikely to authorise exercising a power of this nature afresh in the absence of some material change in circumstances.
[54] The order for detention pursuant to a warrant of commitment does not in my view create rights to which an important interest in finality attaches. The decision as to place of detention is an administrative one legitimately the subject of revision if circumstances change. That is also consistent with the apparent intention of Parliament to create a discretion as to place of detention rather than a conditional release regime in Part 4A. I conclude that to this limited extent the District Court has the power to vary the warrant.
[55] If presented with the alternatives of prison and some other place for detention under Part 4A’s provisions, the District Court would exercise its discretion having regard to the nature of the available facilities. The security risk certificate and summary, if any, must be accepted on their face, and national security concerns given due weight along with any means proposed for managing the risks identified in a different place of detention. In those circumstances, the Crown should indicate its views on the appropriate place of detention having regard to the security risks, and that indication must be given significant weight in the absence of an ability to assess the relevant classified information.
[56] However, under s114O, it is the Executive which has the power to determine by the mechanism of statutory regulation whether detention at other premises will be permitted, not the Courts. On that point I uphold Ms Gwyn’s submission, would allow the Crown’s cross-appeal, and find that the warrant of commitment was lawful and valid. There is no basis for challenging Mr Zaoui’s detention on the basis of invalidity of the warrant. Accordingly, I also find, consistently with the High Court Judge, that there is no power for the District Court, or the High Court standing in the shoes of the District Court, to alter the warrant or alter Mr Zaoui’s form of detention on the basis of any defect in the original warrant.
Is detention under Part 4A mandatory?
[57] I now consider the availability of conditional release under Part 4A and the inherent jurisdiction of the Court.
[58] On the ordinary meaning of the language of Part 4A, the detention regime commences immediately following the Minister’s initial decision effectively to rely upon the security risk certificate made by the Director. The person who is subject of the certificate is then notified of the Minister’s decision and of their right to have the certificate reviewed. Concurrently, the person is arrested without warrant, detained in custody by the police, and brought before a District Court Judge. The Judge must then issue a warrant of commitment of the person concerned in a form prescribed by regulations. Detention under the warrant continues, until the process of challenge to the certificate is concluded or the High Court orders the person’s release on a habeas corpus application. The statute, thus read, makes no express provision in Part 4A for bail or other conditional release other than during the process through an order made on a habeas corpus application.
[59] The first question arising on the appellant’s argument is whether the words in s114O(3) “if for any other reason the person is to be released,” in the wider context of the 1987 Act, indicate that there is a discretion to release a person from detention under Part 4A.
[60] Part 3 of the 1987 Act provides for deportation of persons who threaten national security or who are suspected terrorists. Under s72, the Minister of Immigration may certify a person to be a threat to national security, following which a deportation order can be made by Order in Council. The Minister can also order deportation of suspected terrorists (s73). In each case the person is taken into custody under s78 and brought before a District Court Judge who, as an alternative to committing the person to detention, has a discretionary power to order release under s79 if satisfied that release would not be contrary to the public interest. Any such release, which is of course pending deportation, must be made subject to conditions of residence and reporting to the police and to any other conditions that the Judge thinks fit (s79(2)(b)(ii) and (4)).
[61] Mr Harrison’s point is that Part 3 provides a power for a Judge to release persons conditionally pending their deportation who have been determined by the government to be a threat to national security or suspected terrorists. It must follow, he says, that under the scheme of the Act neither national security interests, nor the efficacy of the certificate review process, are undermined by treating Part 4A as enabling conditional release in a particular deserving case.
[62] It is clear that the drafters of the 1999 amendment resorted to the provisions in Part 3 of the 1987 Act concerning detention, in providing for the security risk certificate and detention regimes under Part 4A. Both parts deal with the same subject matter. The relevant deportation security criteria under s114C(4), which form the basis for certificates under Part 4A, can form the basis for deportation decisions under ss72 and 73 in Part 3. Nevertheless, the provisions in s79 enabling conditional release from detention in the discretion of a District Court Judge were not included in Part 4A. Furthermore, because detention under s114O will ordinarily last until deportation or release, save for a very brief period or perhaps in exceptional cases, detention under s78, which triggers s79, will not be available to persons covered by Part 4A.
[63] There is however, one distinction between the two sets of provisions which appears to explain that difference of approach in the two Parts to conditional release. The Part 3 procedure is not one in which information relied on by the Minister (or the Governor-General in Council) has any specific statutory protection from use in judicial processes, as does the classified information used in the certificate processes under Part 4A. There is no statutory restraint on use of official information, relevant to whether the release of the person from detention is consistent with the public interest, that would impede it being placed before the District Court under s79. Under Part 4A, however, the classified information that is central to satisfying the security criteria, and providing the basis for the issue of a security risk certificate, is protected and cannot be used in legal processes. The national security interests with which Part 4A is concerned are at the high end of the spectrum identified in Choudry v Attorney-General [1999] 2 NZLR 582 at 593-4. The Minister is directed not to divulge the contents of any briefing received to any other person and may not be called upon to give evidence in relation to what the Minister knows as a result of the briefing (s114E(2) and (3)). This distinction in the statutory policy of protection of information that is used for the statutory purposes appears to be central to the differing provisions for conditional release from detention under the respective statutory provisions.
[64] In this context a conditional release regime based on exercise of a judicial discretion would have to operate without the applicant, counsel for the applicant or the Judge being informed of the key information which resulted in the making of the certificate, and detention of the person it concerns during the Inspector-General’s process. That would not be a judicial process at all.
[65] Mr Harrison also argues that s114K(4)(c) in Part 4A, contemplates release from custody of a person who is subject of a security certificate but who has the status of a refugee. He says they may obtain release at the end of the process if s129X protects the person from removal or deportation. Section 129X in Part 6A prohibits removal or deportation of a refugee unless that is allowed by Articles 32.1 or 33.2 of the Refugee Convention. Because, however, the security criteria for a certificate cover the requirements for expulsion under Article 33 (see s114C(5) and (6)) it seems that there will be limited scope for the provision to operate where the Part 4A procedure is invoked, as it was in this case, by reference to those criteria. In any event the provision is a residual one applicable where s129X applies and the person cannot because of its terms and the practical situation be deported. It offers no more general assistance in ascertaining the meaning of Part 4A detention provisions.
[66] Mr Harrison finally refers to s128(15) and 128B(12), as provisions which expressly exclude bail, and points out that no such provision is included in Part 4A. But in a long and much amended Act little can be inferred from the absence of such a provision. It would appear, in any event, as Ms Gwyn said, that ss128A and 128AA respectively empower conditional release in some circumstances so that s128’s prohibition on bail is of procedural significance only. That may also be the case for s128B.
[67] Similarly I draw no assistance from the point that s114O(3) refers to “if for any other reason the person is to be released.” That phrase immediately follows the precise specification in s114O(2) of the circumstances in which detention will come to an end. That context does not suggest that subsection (3) was intended to recognise that there was a general power of conditional release from detention under part 4A. Furthermore Part 4A does provide for circumstances in which a person might have to be released into the community while the review process is taking place or after it has concluded. The first is if the Court makes an order under a habeas corpus application. That provision is a logical reference for the phrase, as it appears in the previous subsection. As well the protection of s129X in relation to the rights of a refugee not to be expelled or returned could lead to release despite confirmation of the certificate.
[68] The conclusion I draw from the comparison between Parts 3 and 4A is that Parliament did not provide for conditional release of persons detained under s114O because it was impractical to provide for the exercise of a judicial discretion for that purpose in circumstances in which the parties would necessarily have to be informed of the matters to be reviewed. The crucial information would always be of a classified security kind, which could not be produced at a hearing before the District Court. Such a regime would be unworkable. The decision was accordingly taken not to provide for conditional release at all.
[69] I reach this conclusion with reluctance and note that the outcome in Mr Zaoui’s case is not in conformity with the provisions of the Refugee Convention which look to application of criteria or necessity of detention to protect national security and public order and regular independent review of the continuing need (see Attorney-General v Refugee Council at [100] to [102]). It is surprising that the Inspector-General, as the fully informed certificate review authority, is not able to authorise conditional release, with an appeal against his decision to this Court. Perhaps those responsible for the policy of detention believed that the imposition of a duty to conduct the review with all reasonable speed and diligence would lead to an expedited review process with only short periods of detention. If so that supposition was sadly astray.
[70] Nevertheless, the statutory context of Part 3, and the contrast between them, puts beyond doubt that the position is that expressed on the ordinary meaning of the Part 4A provisions. Parliament did not intend that persons detained under the Part 4A scheme could be released prior to the events specified in s114O(2). Within the scheme of the Act no other meaning is reasonably available.
Inherent jurisdiction to grant bail
[71] In R v Lee [2001] 3 NZLR 858 a Full Court of the High Court held that the High Court had an inherent jurisdiction to grant bail which could be granted in any circumstances where the justice of the case so demands, even in respect of matters which are regulated by statute, provided that the exercise is in accordance with the relevant legislation. This conclusion was approved by this Court in R v Payne [2003] 3 NZLR 638. Both Lee and Payne involved the criminal jurisdiction of the Courts in an area which was not covered by the Bail Act. In principle, however, there is no reason why the inherent jurisdiction of the High Court to grant bail should not be available, subject to the same restriction, of its exercise in any case being compatible with the relevant legislation, where a person is detained under a civil statutory power. I see no basis in principle for imposing in New Zealand a further requirement that a bail application under the inherent jurisdiction, in a civil proceeding, must be ancillary to some other form of High Court proceeding as stipulated in England by Sir John Donaldson MR in R v Secretary of State for the Home Department ex parte Turkoglu [1988] 1 QB 398, 400-401.
[72] The next question is whether the exercise of the inherent jurisdiction by the High Court, in the present case, would be contrary to the statutory scheme. Section 114O(2) directs that the duration of the detention of the person named in the warrant is “until” one of the stipulated events occurs. There is no provision for conditional release. I have concluded in this judgment that the reason why, exceptionally in the 1987 Act, no power of release on conditions of a person detained is included in Part 4A is part of its purpose of maintaining the secrecy of the classified information that is used in the security risk certificate process. That secrecy could not be maintained if the information were made available to a Court and parties for the purposes of a judicial determination of whether a person the subject of a certificate should be released. The Act does not permit the question to be approached as one of public interest immunity (as to which see Choudry supra). The detained person would become entitled to that information which would be contrary to the protection envisaged in Part 4A.
[73] Part of Parliament’s purpose in 1999 was that the process should be conducted with all speed and diligence, partly, no doubt, so that detention of the person would be for the briefest possible period. But there is nothing in the statute to indicate that in cases where that did not eventuate the legislative policy concerning detention could be bypassed. It is particularly unlikely that the legislature wished delays resulting from legitimate testing of the process by the person detained to give rise to exercise of powers of conditional release when that is plainly excluded from the special procedures under Part 4A.
[74] The present case indicates the position. The Director has provided a Statement to Mr Zaoui summarising the allegations and the reasoning that have resulted in the Security Risk Certificate. The Director has said of his reasoning:
It is based both on the publicly known security related European decisions and convictions and related unclassified information and on classified security information which cannot be divulged.
The statement then discusses the elements of definition (c) in the New Zealand Security Intelligence Service Act 1969 which reads as follows:
(c)The protection of New Zealand from activities within or relating to New Zealand that-
(i) Are influenced by any foreign organisation or any foreign person;
and
(ii) Are clandestine or deceptive, or threaten the safety of any person;
and
(iii)Impact adversely on New Zealand’s international well-being or
economic well-being;
And in respect of definition (c) the Director says:
The activities of which he was convicted in Belgium and France were clandestine or deceptive or threatened the safety of persons. The Swiss government believed that his activity in Switzerland “may lead to acts of violence, and even attacks, in Switzerland”. Activities of this kind in New Zealand, by Mr Zaoui or by others attracted to New Zealand by his presence here, could threaten the safety of New Zealanders.
[75] Mr Zaoui takes issue with the findings of the judicial authorities in Belgium and France and has succeeded in the Refugee Status Appeals Authority in establishing his position. But the ability of a court to exercise a judicial discretion in the grant of bail requires some understanding by the Judge of underlying matters raised by the certificate. That is simply not available under the restrictions other than in terms of the review process, including a possible appeal. For the Court to enter into the inquiry would invoke a collateral challenge to the certificate which would be inconsistent with that legislative scheme.
[76] Accordingly I conclude that the High Court is unable to exercise its jurisdiction to grant Mr Zaoui bail under its inherent jurisdiction.
Habeas Corpus orders
[77] As indicated, s114O(2) provides that the authority to detain a person who is the subject of a security risk certificate is terminated on the occurrence of any one of three stipulated events. The first and second concern the completion of the statutory processes in relation to the security risk certificate, which result in either release or deportation. The third terminating event occurs under s114O(2)(c) if the detaining authority is:
Ordered by the High Court or a Judge of the High Court, on an application for a writ of habeas corpus, to release the person.
[78] This provision gives effect to the protection given under s23(1)(c) of the Bill of Rights which relevantly provides:
Everyone who is arrested or is detained under any enactment-
…
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
[79] Since enactment of the Bill of Rights in 1990 and Part 4A of the 1987 Act, in 1999 Parliament has enacted the Habeas Corpus Act 2001 which stipulates procedural requirements for the Courts in dealing with applications for a writ of habeas corpus to challenge the legality of a person’s detention (ss6 and 7 Habeas Corpus Act 2001). Features of this procedure include a requirement of priority. Applications must be given precedence over all other matters before the High Court (s9). The position is the same in this Court with appeals against High Court decisions (s17). Interim orders for release from detention, pending final determination of an application, may be made, and appropriate conditions imposed (s11). The onus of establishing that a detention is lawful lies throughout on the respondent. Where that onus is not satisfied the applicant is entitled to an order for release.
[80] While the 2001 Act provides a modern procedural framework for the Court and the parties, the substance of habeas corpus as a constitutional means of securing immediate release from an unlawful detention is unchanged by the 2001 Act. It was described in D Clark and G McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) in this way:
The writ exists to examine the legality of the applicant’s detention in custody or the custody of the detainee from whom the applicant has initiated the proceedings. The concept of custody has been confined historically to close custody though, as we shall see, there has always been one major exception to this notion. There are also indications that a more liberal view of custody for habeas corpus purposes may be emerging. The requirement is that applicants must be in custody at the time of the hearing because, if they have been released before the hearing of the case, habeas does not lie. In sum it must be shown that there is a detention, that it is illegal and that it is not voluntary (pg 65 to 66).
[81] And subsequent to the 2001 Act coming into force, a Full Court of this Court in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 similarly said that:
Traditionally the writ has been used only where it is sought to release someone entirely from (unlawful) custody. (para [61]).
[82] The Court in Bennett also emphasised that the scope of habeas corpus was “not to be shackled by precedent” saying that the writ will “adapt and enlarge as new circumstances require” (Para [60]). Nevertheless, I am satisfied that in providing that an order, made on a habeas corpus application, could be the basis for release of a person detained under Part 4A’s provisions, Parliament had in mind situations in which the detaining authority could not show there was a legal justification for the detention concerned. That situation might arise in the habeas corpus proceeding itself or in a habeas corpus proceeding brought following a successful judicial review proceeding under the Judicature Amendment Act 1972 in which it was established there was a lack of authority to detain the person the subject of the certificate. The appropriate procedure may depend on whether the illegality can be demonstrated in a summary process (Bennett at para [59] to [74] and Manuel v Superintendent, Hawkes Bay Regional Prison CA67/04 15 June 2004 at paras [49] to [51]).
[271] For these reasons I would leave open the possibility of a grant of bail by the High Court in its inherent jurisdiction if the circumstances of the case warrant it.
[272] It may be that a situation justifying the invoking of the inherent jurisdiction to grant bail as I have outlined it above would equally justify the granting of habeas corpus bail as described in the judgment of Hammond J. I have not focussed my attention on that possibility and express no view on it.
Solicitors:
McLeod & Associates, Auckland for Appellant
Crown Law Office, Wellington
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