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IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV2004-404-2309

BETWEEN AHMED ZAOUI
Plaintiff

AND ATTORNEY-GENERAL
Defendant

Hearing: 1 and 2 July 2004

Appearances:
R E Harrison QC and D Manning for the Plaintiff

C R Gwyn for the Defendant

R M Hesketh and S Bell for the Human Rights Commission as Intervener

Judgment: 16 July 2004

RESERVED JUDGMENT OF PATERSON J

Solicitors:

McLeod & Associates, Auckland
Crown Law Office, Wellington
Office of Human Rights Proceedings, P O Box 6751, Wellesley St, Auckland

Table of contents

Paragraph No.

Introduction [1]

Chronology [4]

The issues [6]

Evidential objections [7]

Part IVA of the Act

Interpretation [9]

Regulations ultra vires [32]

The Bill of Rights [39]

Inherent jurisdiction to grant bail [55]

Remedial jurisdiction [63]

Powers of District Court [64]

Transfer under inherent jurisdiction of this Court [68]

Habeas Corpus [70]

Evidential objections revisited [75]

Human Rights Commission’s submissions [76]

Result [85]

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Introduction

[1] Mr Zaoui, who entered New Zealand without travel documents, is the subject of a security risk certificate (the certificate) provided under s114D Immigration Act 1997 (the Act). As such, he has been detained under the provisions of s114O of the Act. The issue in this proceeding is whether this Court has a supervisory jurisdiction to intervene in this detention, and if so, whether it should so intervene. The Crown’s position is that this Court has no such jurisdiction once a warrant of commitment lawfully issues. Mr Zaoui’s response is that this simply cannot be the case.

[2] Mr Zaoui, who is currently detained at the Auckland Central Remand Prison (the remand prison), seeks orders:

For his immediate release, specifically his release on bail; and/or

In the alternative, transferring him to a more appropriate place of detention; and/or

Declaring his detention, or aspects thereof, breaches his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Such a declaration is sought even if it is determined that Mr Zaoui’s continued detention in the remand prison is lawful.

[3] There are before the Court for determination:

An application for Mr Zaoui to be released on bail pursuant to the Court’s inherent jurisdiction, and/or its remedial jurisdiction;

Alternatively, an application for habeas corpus;

Alternatively, an application to the District Court (which has been removed to this Court) to vary the warrant of commitment (the warrant) to enable Mr Zaoui to be transferred from the remand prison to the Mangere Refugee Detention Centre (the Mangere Centre). This application is made pursuant to the District Court’s inherent powers and/or its remedial jurisdiction;

Alternatively, an application for an order varying the warrant and/or Mr Zaoui’s place of detention from the remand prison to the Mangere Centre, pursuant to this Court’s inherent jurisdiction and/or remedial jurisdiction;

An application for judicial review of the decision of the Manukau District Court to issue the warrant by specifying “Auckland Prison” as the only identified permissible place of detention. This claim also seeks declaratory relief as to the correct interpretation of s114O of the Act;

An application for declaratory orders that Mr Zaoui’s current detention and/or conditions of detention breach his rights under the Bill of Rights in a number of respects. A declaration of inconsistency is sought if it is held that Mr Zaoui’s continued detention is lawful.

The issue in respect of most of the applications depends on the interpretation of provisions of Part IVA of the Act. However, the Bill of Rights based claims are advanced, partly independently, and partly as supporting the other claims and as assisting in the correct interpretation of provisions of the Act.

Chronology

[4] It will be necessary to deal in more detail with some of the factual events. Nevertheless, a chronology of events to date is relevant and is:

4/12/02 Mr Zaoui, an Algerian national, arrived at Auckland International Airport on a false passport. He sought refugee status. He has been in detention since that time.

6/12/02 The Manukau District Court issued the initial warrant of commitment pursuant to s128 of the Act. From the time of his arrival until he was transferred to the Auckland Prison, Mr Zaoui was held at the Papakura Police Station.

12/12/02 Mr Zaoui transferred to the Auckland Prison and placed in D block.

30/1/03 Mr Zaoui’s application for refugee status declined by a Refugee Status Officer.

12/12/02 to 28/3/03 Weekly applications made by New Zealand Immigration Service (NZIS) for extensions of the original warrant of commitment.

20/3/03 The Director of Security (the Director), pursuant to s114D of the Act, made and provided to the Minister of Immigration (the Minister) the certificate. The certificate provided that Mr Zaoui met the following relevant refugee deportation security criteria in s114C(6) of the Act, namely:

(a) the person’s continued presence in New Zealand constitutes a threat to national security in terms of s72 of the Act; and

(b) 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 (as defined in s2 of the Act).

21/3/03 The Minister decided under s114G(1) of the Act to place preliminary reliance on the certificate. Mr Zaoui has applied to review the certificate in accordance with the provisions of s114H of the Act.

28/3/03 Judge Singh in the Manukau District Court issued the warrant pursuant to s114O of the Act. This authorised the ongoing detention of Mr Zaoui in Auckland Prison.

1/8/03 The Refugee Status Appeal Authority (RSAA) allowed Mr Zaoui’s appeal against the decision of the Refugee Status Officer denying Mr Zaoui refugee status.

16/10/03 Mr Zaoui transferred to the remand prison. The transfer followed a report from a psychologist who recommended, because of Mr Zaoui’s psychological condition, that he be transferred out of Auckland Prison. Since then he has been treated as a remand inmate.

19/12/03 Williams J gave judgment in Zaoui v Attorney-General & Anor [2004] 2 NZLR 339. He held that Mr Zaoui was entitled to an adequate summary of the allegations against him and the Director’s reason for considering him a danger to the security of New Zealand; and that Mr Zaoui was entitled to have his rights and status as a recognised refugee taken into account by the Inspector-General of Intelligence and Security (the Inspector-General) in the course of the his review of the certificate. The Crown appealed against this latter ruling (the human rights aspect), and Mr Zaoui cross-appealed on the basis that Williams J’s judgment did not go far enough. The Court of Appeal has heard the appeal on 10 and 11 May last but has not yet delivered its judgment.

27/1/04 The Director provided Mr Zaoui with a “Summary of Allegations and Reasoning” for making the certificate.

2/2/04 The Minister, after considering requests that Mr Zaoui be transferred out of the remand prison, advised that the transfer of Mr Zaoui to the Mangere Centre could not take place as that centre was not a suitable place for his custody.

4/2/04 The Minister of Corrections refused a request to exercise his discretion under s21 of the Penal Institutions Act 1954 and to temporarily release Mr Zaoui to the care of a local Catholic community.

31/3/04 Salmon and Harrison JJ in Zaoui v Greig & anor (Auckland HC, CIV2004-404-000317, 31 March 2004) upheld a claim that the then Inspector-General should not hear Mr Zaoui’s application to review the certificate. The Inspector-General resigned that day and has been replaced but, as yet, no steps have been taken by the new Inspector-General to determine the date of the review of the certificate.

[5] It is apparent that it will be at least several months before there is a resolution of Mr Zaoui’s review of the certificate by the Inspector-General. It seems likely that the Inspector-General will not be able to undertake his review until the Court of Appeal gives its decision on the appeal from Williams J’s judgment. Mr Zaoui’s position is that most of the delay has been caused by legal or other error on the part of the former Inspector-General, and the resulting Crown appeal against the judgment of Williams J. The total delays and the likely ongoing future delays before the current legal processes are completed are relied on as a very significant aspect of Mr Zaoui’s claim that his detention is now arbitrary.

The issues

[6] The issues which I am required to determine may be summarised as follows:

a)

The correct interpretation of Part IVA of the Act and, in particular, whether it is a requirement that detention under s114O of the Act requires that the detainee be held in a prison;

b) Was the warrant invalidly issued to the extent that it provided for detention of Mr Zaoui in “Auckland Prison?”

c) Does this Court have an inherent jurisdiction to grant bail to a person detained under s114O of the Act?

d) Does this Court have a remedial jurisdiction to grant bail to a person detained under s114O of this Act?

e) Does the District Court have either of the powers referred to in (c) and (d) above or the power to vary the warrant so as to direct that Mr Zaoui be held at the Mangere Centre?

f) Does Mr Zaoui’s present detention breach his rights under the Bill of Rights, and if so, should a declaration of inconsistency be made?

g) If, as a result of any of the findings on the above issues, this Court have power to grant bail or vary the terms of Mr Zaoui’s detention, should Mr Zaoui be either released on bail or transferred to the Mangere Centre?

h) Should a writ of habeas corpus issue?

Evidential objections

[7] Ms Gwyn, for the Crown, objected to the relevance and admissibility of parts of Mr Zaoui’s pleadings and evidence. The bases of the objection were that considerable portions of Mr Zaoui’s pleadings, the evidence called in support, and his counsel’s submissions seek to impeach the basis for the making of the certificate by the Director; allege failures by the Director and the Inspector-General in relation to the Director’s summary given in accordance with the judgment of Williams J; allege delays in the Inspector-General’s process of review of the certificate; and allege failure to review the certificate in light of information subsequent to the making of the certificate. In the Crown’s submission these matters are not relevant to the present applications.

[8] These objections will be referred to later in this judgment.

Part IVA of the Act

Interpretation
[9] The particular declaration which Mr Zaoui seeks in his judicial review proceeding is:

There is and at all material times was no legal requirement that Mr Zaoui be detained in a penal institution when ordered to be detained pursuant to s114O of the Act, it being permissible in law that he be detained in premises other than a prison.

[10] Part IVA of the Act came into force on 1 April 1999. Mr Zaoui is the first person to be detained under the provisions of Part IVA. That Part provides that if the Director holds classified security information that the Director is satisfied complies with certain requirements, the Director may provide a security risk certificate to the Minister to that effect. Under s114F, the:

existence of a security risk certificate is evidence of sufficient grounds for the conclusion or matter certified, subject only to a decision of the Inspector-General on a review conducted under s114I and the Minister may rely on the certificate when making a decision under this Part …

[11] Section 114G enables the Minister to make a preliminary decision to rely on the certificate, which is what happened in Mr Zaoui’s case. Mr Zaoui had a right, under s114H of the Act, to seek a review of the certificate from the Inspector-General. He exercised this right and, as already noted, this review has not yet been completed, and its commencement is being delayed awaiting the Court of Appeal decision. The Director has the power to withdraw the certificate at any time (s114M). If the certificate is confirmed on the Inspector-General’s review, the Minister is not required to act upon it. Section 114N provides, among other matters, that the Minister may nevertheless decide “that the relevant security criterion should not be applied to the person in question…”.

[12] The particular statutory provisions which were applied to Mr Zaoui are contained in ss114G and 114O. Under s114G, certain procedures follow once the Minister makes a preliminary decision to rely on a certificate. The Minister is required to give a notice to that effect to the chief executive of the Department of Labour. The chief executive is then required to arrange for a member of the police, as soon as is practicable, to personally serve on the person a copy of that notice. Subsections 114G(5) and (6) state:

(5) Where a member of the Police serves a notice on a person under subsection (4), that member or any other member of the Police must arrest the person without warrant and place the person in custody.

(6) A person arrested under subsection (5) must be brought before a District Court Judge as soon as possible, and may in no case be detained for more than 48 hours unless, within that period, a Judge issues a warrant of commitment under section 114O for the continued detention of the person in custody.

[13] The correct interpretation of s114O is central to the declaration sought by Mr Zaoui. That section states:

114O Warrant of commitment in security cases

(1) Where a person detained under section 114G(5) is brought before a District Court Judge to seek a warrant of commitment, the following provisions apply:

(a) If satisfied on the balance of probabilities that the person is not the person named in the notice under section 114G, the Judge must order that the person be released from custody immediately:

(b) Except in a case to which paragraph (a) applies, the Judge must issue a warrant of commitment in the prescribed form for the detention of the person.

(2) Every warrant of commitment issued under this section authorises the person to whom it is addressed to detain the person named in it until—

(a) Required by a member of the Police to deliver up the person in accordance with the provisions of this Act relating to the execution of a removal order or a deportation order; or

(b) Notified under subsection (3) that the person should be released; or

(c) 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.

(3) If a person who is subject to a warrant of commitment under this section is successful in a review by the Inspector-General under section 114I, or if for any other reason the person is to be released, an immigration officer or a member of the Police must immediately notify in writing the Superintendent of the prison or person in charge of the other premises in which the person is detained that the person should be released. (emphasis added)

[14] Regulation 40(4) of the Immigration Regulations 1999 provides that a warrant of commitment issued by a District Court Judge under s114O(1)(b) of the Act must be in Form 9 in Schedule 2. The prescribed form of the warrant is:

Form 9—Warrant Of Commitment

Reg. 40(4)

WARRANT OF COMMITMENT

Section 114O(1)(b), Immigration Act 1987

To every member of the Police (or To .……................. member of the Police) (full name)

and to the Superintendent of ............................……………………..
(Specified penal institution)
……………………………................. (in this warrant called the subject),

(Name)

a citizen of …………………………………………
[Country if known]

was detained pursuant to section 114G(5) of the Immigration Act 1987, and is to be detained for more than 48 hours.

I DIRECT YOU, the said member(s) of the Police, to deliver the subject to

...........................……………and you the said ……………………………….

(Specified penal institution) [Superintendent]

to receive the subject into your custody and detain the subject until required by a member of the Police to deliver up the person in accordance with the provisions of the Immigration Act 1987 relating to the execution of a removal order or a deportation order, or unless earlier notified in writing by an immigration officer or member of the Police that the subject should be released in accordance with section 114O(3) of the Immigration Act 1987.

Signature: ....................……………………………….. Date: .....................

District Court Judge

District Court at ..........................………………..

(Place)

[15] The chronology which appears at paragraph 4 above shows that the Director issued his certificate under s114D on 20 March 2003. On 21 March 2003, the Minister made her preliminary decision to rely on the certificate in accordance with s114G. Mr Zaoui was brought before the District Court as required by the provisions of s114G(6) on 28 March 2003.

[16] Counsel who appeared for the NZIS at the hearing in the Manukau District Court on 28 March 2003 has in an affidavit described, to the best of his recollection, what happened at the hearing. Prior to the hearing, NZIS provided counsel with a copy of the certificate, details of the preliminary decision of the Minister to rely on the certificate, and a form of warrant of commitment based on Form 9 of the Immigration Regulations 1999. Counsel’s instructions from NZIS were to seek a warrant for Mr Zaoui’s commitment to Auckland Prison under s114O of the Act. This was reflected in the draft form of warrant which NZIS provided. Mr Zaoui was represented at the hearing and there was no discussion about an alternative place of detention other than Auckland Prison. Mr Zaoui’s counsel did not oppose the issue of the warrant of commitment. NZIS’s counsel averred:

Judge Singh was in my observation concerned to fully acquaint himself with the material provided and the relevant statutory provision. His Honour took some time to read through these and familiar himself with the documentation. His Honour then made and signed the warrant of commitment, and the hearing of the matter then concluded, without further discussion of any consequence as between His Honour and counsel appearing.

[17] After 28 March 2003, Mr Zaoui continued to be held in D Block at Auckland Prison. Although termed “non-voluntary segregation” by the Department of Corrections, Mr Zaoui was, in effect, held under conditions akin to solitary confinement. He found this experience a devastating one. On the information provided by Mr Zaoui, it is difficult to understand why the severe and onerous conditions were imposed on him. However, these matters are not directly relevant to what I have to determine. Mr Zaoui’s lawyers made representations and, as a result of those, he was transferred to the remand prison on 16 October 2003.

[18] Mr Harrison QC, counsel for Mr Zaoui, analysed both the provisions of s114O of the Act and other parts of the Act to support his submission that the Act did not require Mr Zaoui to be detained in a penal institution, and that detention was not mandatory. In support of the submission that detention did not have to be in a penal institution, reference was made to s114O(2) which refers to “the person to whom [warrant of commitment] is addressed” and does not specify a Superintendent of a prison. Further, the release provisions contained in s114O(3) refer to both the “Superintendent or person in charge of the other premises in which the person is detained.” These references clearly contemplate detention in other places than a prison. The Crown did not disagree with this submission.

[19] Counsel analysed the other Parts of the Act to illustrate that most of the Parts provided for detention in specific places and gave the person detained the right to apply to be released on conditions. The two parts enacted in 1999, namely, Part IVA and VIA, did not refer to specific places of detention or contain a specific right to apply to be released on conditions. Part II dealing with persons in New Zealand unlawfully, provides for detention in a penal institution or any other premises approved for that purpose by the Judge; Part III dealing with deportation of persons threatening national security and suspected terrorists provides for detention in a penal institution; Part IV dealing with deportation of criminal offenders provides for detention in a penal institution; and Part IV which deals with arrivals and departures provides in one section for detention in a penal institution or some other premises approved for that purpose by the Registrar, while another section provides for detention in premises approved by the Secretary of Labour or a police station, or at the direction of a Judge in a penal institution.

[20] It was submitted that the absence of a specified place of detention in Part IVA was an omission, and was entirely consistent with the broader legislative scheme and the clear drafting pattern of the Act as a whole, and led to the inference that a person detained under Part IVA could be detained in premises other than a penal institution. It followed from this analysis that there was nothing in the Act to prevent the release of Mr Zaoui to the Mangere Centre, and nothing to preclude outright release on bail. This submission was supported by the fact that in the other Parts of the Act detention in specified premises was mandatory. There being no such provision in this case, neither the Manukau District Court nor this Court was precluded from directing that Mr Zaoui be transferred to the Mangere Centre. This was not inconsistent with other provisions in the Act as persons threatening national security and suspected terrorists could, under Part III of the Act, apply to be released on conditions. There was no inconsistency therefore in releasing Mr Zaoui, either on bail or directing that he be transferred to the Mangere Centre.

[21] Further submissions in support of the proposition that detention under Part IVA was not mandatory were that the Part does not adopt a “one size fits all” approach as there are within that Part five separate and distinct varieties of “relevant security criteria,” and accordingly the appropriate form of detention may differ in respect of each class; Mr Zaoui was in New Zealand lawfully because of his refugee status which entitled him to freedom of movement under Article 26 of the Refugee Convention; the words “for any other reason the person is to be released” appearing in s114O(3) indicate that a person can be released on bail; certain provisions of the Bill of Rights assisted in interpreting Part IVA as not providing for mandatory detention; and that the warrant was in this case ultra vires the Act when it provided for detention in a penal institution.

[22] The Crown relied on the other Parts of the Act to submit that the absence of a right to release on conditions under Part IVA was deliberate, as was the absence of a right for the Court to review the detention under the same Part. The absence of these provisions indicated that the detention was an important element in the statutory scheme to detain a person subject to a security risk certificate. In response to the submission that the words “for any other reason the person is to be released” in s114O(3) indicate that a person may be released on bail, the Crown’s position was that those words were necessary because there are other ways under Part IV in which a detained person can be released. Two examples are that the Director may determine to withdraw the certificate (s114M), and the Minister may decide not to act on the certificate even if it is confirmed by the Inspector-General (s114N). Counsels’ submissions on the Bill of Rights interpretation issue and the ultra vires issue will be referred to later.

[23] The scheme of Part IVA is that when the Minister makes a preliminary decision to rely on the security risk certificate, the person subject to the certificate is to be brought before the Court “as soon as possible” (s114G(6)). The District Court Judge, unless satisfied that the person is not the person named in the certificate, “must issue a warrant of commitment in the prescribed form for the detention of the person” (s114O(3)). The scheme therefore is for mandatory arrest and mandatory detention. The warrant authorises the person to whom it is addressed to detain the person named in it until one of the events specified in s114O(2) occurs. Unless a writ of habeas corpus issues, a person who is seeking a review of the decision to issue the security risk certificate is to be detained unless released pursuant to the provisions of s114O(3), or is delivered up for deportation under s114O(2)(a). Although s114O(2) “authorises” the detention, it is my view that the correct interpretation of s114O is that such a person is to be detained unless released “for any other reason” as that term appears in s114O(3).

[24] The fact that there is no provision, similar to provisions of other Parts of the Act, allowing the Court in its discretion to release such a person on conditions, is significant. The two Parts of the Act where there is no such provision, both enacted in 1999, are Part IVA dealing with persons subject to security risk certificates, and Part VIA which deals with arrivals and departures of persons whose eligibility for a permit is not immediately ascertainable. There are obvious reasons to detain, without the right to release on conditions, such persons. In respect of those persons subject to a security risk certificate, the Director has formed a view that their continued presence in New Zealand constitutes a threat to national security. It will not be known whether a person who falls within the provisions of Part VIA is such a risk or not until his or her eligibility for a permit has been ascertained. The incorporation of these two Parts into an Act, which gives in other Parts a right to apply for release on conditions, without including such a right, suggests that the drafting was deliberate and that there was no intention to give a right to apply for a release on conditions to persons who come within the provisions of Parts IVA and VIA. The fact that a person who may be a suspected terrorist has a right to apply for release on conditions under Part III does not alter this view. Part III covers a wide variety of people, many of whom would be eligible for a release on conditions. A suspected terrorist would have to satisfy a District Court Judge that his or her release would not be contrary to the public interest before that person could obtain a release on conditions.

[25] In my view, the Crown is correct in its submission that the insertion of the words “or if for any other reason the person is to be released” in s114O(3) is to cover situations under which a person may be released in accordance with the provisions of the Act. Two of those have already been mentioned, namely, if the certificate is withdrawn by the Director, or if the Minister determines not to act on the certificate. There is a third. Under s129X of the Act, which appears in Part VIA, no person who has been recognised as a refugee in New Zealand may be removed or deported from New Zealand under the Act unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation. The Act defines the Refugee Convention as the United Nations Convention Relating to the Status of Refugees, done at Geneva on the 28th day of July 1951.

[26] Mr Zaoui has refugee status. Thus, even if the certificate is confirmed, he cannot be removed from New Zealand unless the provisions of Article 32.1 or Article 33.2 allow his removal. As noted in paragraph 4 above, one of the relevant security criteria referred to in the certificate was “that there are reasonable grounds for regarding Mr Zaoui as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention.” Article 33.2 applies if “there are reasonable grounds for regarding as a danger to the security of the country in which he is …”. Thus, it is possible that if the certificate is confirmed by the Inspector-General, Mr Zaoui’s refugee status will allow him to remain in New Zealand. However, if the certificate is confirmed, it is also possible, perhaps likely, that Article 33.2 may allow his removal (it being assumed for these purposes that Article 32.1 is not relevant).

[27] I note that Article 26 of the Refugee Convention does not apply. Mr Zaoui is not in New Zealand lawfully unless he holds a permit granted under the Act or is exempt under the Act from the requirement to hold a permit. He does not qualify.

[28] I accept that s114O does not require that the detention be in a penal institution. The reference to “Superintendent of the Prison or person in charge of the other premises in which the person is detained” in s114O(3), the reference in s114O(2) to “the person to whom it is addressed” rather than to a Superintendent of a Prison, and the absence of a specified place of detention in s114O(1)(b) clearly indicate that the legislature did not determine that detention must be in a penal institution. There may well be policy reasons for detaining such persons in premises other than a penal institution. However, in my view, s114O and the scheme of Part IV, when interpreted against the Act as a whole, require that a person subject to a security risk certificate is to be held in detention until released under the provisions of s114O(2) and (3). While the term “detention” is not defined in the Act, it would have its normal dictionary meaning of the act of keeping someone in confinement or under restraint.

[29] The prescribed form of the warrant of commitment requires detention in a “penal institution”. That term is not defined in the Act but would, in my view, have the same meaning as “penal institution” under the Penal Institutions Act 1954. As defined, it is a prison, a corrective training institution or a police jail established under that Act. As a corrective training institution is clearly not available in the circumstances of this case, nor would a police jail be appropriate because of the length of time involved, the only type of penal institution in which Mr Zaoui can be detained is a prison. Under s12(3) of the Penal Institutions Act, references to persons sentenced to imprisonment include references to persons “committed to prison or otherwise liable to be detained in custody except for the purposes of any remand pending or during trial or sentence.” This provision is wide enough to include detention to a penal institution under s114O of the Act. Section 15 of that Act enables a person to be transferred from one penal institution to another by the Department of Corrections.

[30] It was suggested by Mr Pike, on behalf of the Crown, that the reference to persons other than Superintendents of Prisons in s114O may be because a Superintendent of a Prison is not in charge of either a corrective training institution or a police jail. As it is extremely unlikely that detention under s114O would either be in a corrective training institution, or a police jail, I am of the view that s114O does not restrict the detention to a penal institution. There are other possible places of safe detention including military barracks, a purpose built facility for persons subject to a security risk certificate or falling within Part VIA of the Act, and hospitals for special patients under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[31] The interpretation which I give to Part IVA and, in particular, the mandatory requirement to detain without any right to a release on conditions is arrived at after considering the provisions of the Bill of Rights, which will be addressed in more detail later in the judgment. It is my view that, unless the warrant of commitment is ultra vires, or this Court has some over-arching power under either its inherent or remedial jurisdictions, detention under s114O of the Act is mandatory and that detention continues until terminated under the provisions of s114O(2). Further, the phrase “if for any other reason the person is to be released” in s114O(3) does not give a detained person the right to apply for a release on conditions.

Regulations ultra vires

[32] The submission made on behalf of Mr Zaoui was that the regulation prescribing the form of the warrant is ultra vires s114O. This is because the form limits detention to a “specified penal institution” and fails to recognise and provide for the alternative of “other premises in which the person may be detained” as contemplated by s114O(3) of the Act. The Act contemplates a less restrictive form of detention than required in the prescribed form. As such, the warrant in this case was void or invalid and Mr Zaoui should be released from detention.

[33] The Crown response was that there was no obligation upon the Governor-General in Council to provide in the prescribed form of the warrant of commitment an alternative place or places of detention other than a penal institution. Section 114O(1) effectively delegates to the Executive the choice of where a person is to be detained. The Executive has a discretion which it exercised in the Regulations. While the Executive has the power to alter the Regulations to provide other places of detention, there was no requirement that the Governor-General in Council must provide such an alternative in the Regulations and the form of the warrant of commitment. It could not have been the legislature’s intention that the choice of place of detention should be left to a District Court Judge without giving guidance on the appropriate place of detention.

[34] There are two provisions of the Act which are relevant to the ultra vires issue. Under s150(m), regulations may be made to provide “for such other matters as are contemplated by or necessary to give full effect to the provisions of this Act and for its due administration.” Section 114O(1)(b) makes it mandatory in the circumstances of this case for the Judge to “issue a warrant of commitment in the prescribed form for the detention of Mr Zaoui.” Taken on its own, it is arguable that s114O(1)(b) relates only to the form of the warrant, and does not authorise a regulation providing the type of detention. In such a case, the regulation is ultra vires because it forbids that which a statute expressly permits: see Powell v May [1946] 1 KB 330. The Act in this case permits detention in other premises but the form of the warrant, as prescribed, does not give this express right.

[35] On the other hand, it is consistent with the purposes of the Act that the Regulations provide the nature of the detention which they have, in effect, done in this case by stipulating that the detention must be in a penal institution. Because of the security criteria which forms the basis of a security risk certificate, the place of detention is likely to be either a penal institution or a purpose built “security” facility.

[36] On balance I am of the view that a warrant of commitment, which restricts the place of detention to a specified penal institution, does forbid what the statute expressly permits. If the legislature had intended that the Executive would have the power to determine the type of premises for detention purposes, it could and should have expressly stated so in s114O(1)(b) by indicating that the prescribed form would also determine the type of institution in which the person was to be detained. In the circumstances, I am not prepared to imply that this is what s114O(1)(b) means.

[37] A regulation which is vitiated on the grounds of vires may be upheld and enforced if the offending part is severable. In this case, Mr Zaoui’s detention was mandatory and inevitable. On the basis of the information available at the time the Judge issued the warrant, detention in a prison would also, in my view, have been inevitable. Accordingly, the discretionary relief which I grant in this case is to declare that the words “specified penal institution” should be severed from the form of the warrant. I do not amend the warrant in any other respect and hold that the warrant, as amended by this severance, to be valid. This includes the requirement for detention in the Auckland Prison.

[38] In considering this relief, I considered the suitability of making an order that Mr Zaoui be detained at the Mangere Centre. The Mangere Centre is not a penal institution although it is an approved premises for the purposes of subsections 128(6)(a)(i) and (b)(i) of the Act. It is used for detaining persons at a lower level of risk than those subject to a security risk certificate. Despite the persuasive submissions of Mr Harrison, and the evidence which I have considered, I am not persuaded that the Mangere Centre is an appropriate place for detention of a person subject to a security risk certificate. I have come to this conclusion on the evidence, and not because the Minister has advised that it is not suitable for detention in cases where a person is subject to a security risk certificate, although it is obvious that I have come to the same conclusion as the Minister.

The Bill of Rights

[39] It is appropriate at this stage to consider the relevance and effect of certain sections of the Bill of Rights. It was submitted on behalf of Mr Zaoui that certain provisions of the Bill of Rights are an aid to the interpretation of Part IVA of the Act, reinforce or bolster the arguments in support of this Court’s inherent jurisdiction to grant bail, and are themselves a source of a remedial jurisdiction.

[40] The particular rights relied upon were the rights not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment (s9), not to be arbitrarily arrested or detained (s22), when arrested to be charged promptly or to be released (s23(2)), when arrested and not released to be brought as soon as possible before a Court or competent tribunal (s23(3)), to be treated with humanity and with respect for the inherent dignity of the person (s23(5)), and when charged with an offence to be released on reasonable terms and conditions unless there is just cause for continued detention (s24(b)). Some of the provisions are relied upon by analogy because they specifically apply to a person arrested for or charged with an offence.

[41] When considering the provisions of the Bill of Rights, ss4 and 5 of it are relevant. Under s4 this Court should not decline to apply any provision of an enactment by reason only that the provision is inconsistent with any provision of the Bill of Rights, while under s5 of the Bill of Rights the rights and freedoms contained in the 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.”

[42] Before considering each of the provisions relied upon by Mr Zaoui, it is noted that the submission on his behalf is that the Crown was prepared to keep Mr Zaoui in indefinite detention in prison no matter how long the process takes. However, in respect of the arguments based on the Bill of Rights, the focus was on the present and the future. Mr Harrison noted that Mr Zaoui was not raking over past breaches although his detention for ten months in Auckland Prison is a factor to be taken into account when considering whether his detention is now arbitrary. The Crown’s position is that the detention and conditions of detention are a necessary and, in the circumstances, proportionate outcome inherent in the statutory regime and the litigation strategy pursued on behalf of Mr Zaoui. No-one could have contemplated the time delays at the time the Director issued the certificate. In this respect I note that one of the objects of Part IVA, as stated in s114A, is 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.” One of the purposes of the process has not been achieved in this case.

[43] Mr Zaoui is currently detained at the remand prison. The evidence establishes that the detention, particularly in Auckland Prison, has had severe and psychological effects on Mr Zaoui. Dr Zuessman, a senior consultant with the psychological service of the Department of Corrections, gave evidence, both by affidavit and in person at the hearing. He was of the opinion that it is in Mr Zaoui’s best interests, from a psychological viewpoint, that he be released on bail. He noted that Mr Zaoui’s mental state had improved somewhat since the time of the assessment by Dr Taylor at the time Mr Zaoui was held in Paremoremo Prison. Dr Zuessman was unable to comment on whether Mr Zaoui was a security risk.

[44] Evidence was given by the operations manager of the remand prison of the case management plan under which Mr Zaoui is currently held at that prison. Steps had been taken to meet some of Mr Zaoui’s needs, including the provision of extra international calls for a longer duration to his family. He was receiving three 20 minute international calls to his family each week at no cost to himself. He has the ability to call his legal representatives free of charge at any time during the hours of unlock. He has arrangements for his culture and religion.

[45] While it is apparent that Mr Zaoui finds his terms of detention onerous and restrictive, I am not satisfied that he is subject to the “disproportionately severe treatment or punishment” envisaged by s9. As noted in Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510, there is a high threshold test to overcome to establish a breach of s9. The treatment of Mr Zaoui is not “so excessive as to outrage standards of decency”, which is the test applied by the Court of Appeal in Puli’uvea. There is no suggestion that the treatment is intended to humiliate Mr Zaoui, which is normally a requirement for a finding that there has been a breach of s9. There has not, in my view, been a breach of s29 of the Bill of Rights.

[46] Section 22 of the Bill of Rights states that everyone has the right not to be arbitrarily arrested or detained. There was no suggestion that Mr Zaoui was not lawfully detained. The submission on his behalf is that what was a lawful arrest and detention has become an arbitrary detention because of the circumstances and length of his detention. It is accepted law that a detention which was initially lawful, may become arbitrary. Hammond J noted in Manga v Attorney-General [2000] 2 NZLR 65 at p71:

Lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality. (emphasis added)

[47] The question of an arbitrary arrest was considered by the Court of Appeal in Neilsen v Attorney-General [2001] 3 NZLR 433. It was there said at paragraph 34:

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle without following proper procedures.

[48] In this case, the arrest was in accordance with the Act and the procedures followed have been in accordance with that Act. Mr Zaoui may have suffered in part because this was the first security risk certificate issued under Part IVA of the Act. There can be no criticism of his first application for judicial review. His second application, as was the first, was justified by the result obtained. The Crown, in my view, cannot be criticised for appealing from Williams J’s judgment as the point at issue is an important one in relation to the Inspector-General’s obligations. The time delay has been unfortunate. However, there is no suggestion that the Crown has attempted to deliberately delay the matter to prolong the final decision. Applications made by both parties have been made to clarify their legal positions. They have been made in accordance with the procedures contained in Part IVA and, in my view, there cannot be any suggestion that a lawful arrest has become arbitrary. Section 5 of the Bill of Rights has direct application. Mr Zaoui has been subject to the reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[49] The length of time taken to resolve this issue is regrettable. Mr Zaoui’s position has not been effectively and quickly resolved as contemplated by the objects of Part IVA. However, his continued detention has not become arbitrary. It is therefore not a case which, in my view, the Court should indicate that although a statutory provision must be enforced, it is inconsistent with the Bill of Rights in that it constitutes an unreasonable limitation on the relevant right in a free and democratic society: see Moonen v Film and Literature Board of Review [2000] 2 NZLR 9.

[50] Section 23(2) of the Bill of Rights has no direct application because Mr Zaoui has not been charged with an offence. While I accept that it would be reasonable in appropriate circumstances to apply the underlying principle in s23(2) to cases such as Mr Zaoui’s, there has not, in my view, been an infringement of the underlying principle. This is because the procedures contemplated by Part IVA of the Act have been implemented promptly. Due process has been followed.

[51] Mr Harrison placed reliance on s23(5) which provides that a person deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. This provision is similar to Article 10(1) of the International Covenant on Civil and Political Rights. It is recognised that there is an overlap between this subsection and s9. However, s23(5) relates to the more specific conditions of detention. On the evidence, I accept that Crown’s submission that the continuing conditions of Mr Zaoui’s detention make reasonable accommodation for his circumstance, religious, cultural and psychological needs. While it is unfortunate that Mr Zaoui’s case will take approximately two years to determine, and that his continued detention in the circumstances is taking a psychological toll on him, it cannot be said that his treatment breaches the right contained in s23(5).

[52] The final section of the Bill of Rights relied upon by Mr Zaoui is s24(b) which provides that everyone charged with an offence shall be informed promptly and in detail of the nature and cause of the charge and shall be released on reasonable terms and conditions unless there is just cause for continued detention. In my view, even if the provisions of this section are by analogy applied to Mr Zaoui, he cannot rely on them. Section 114O, in my view, provides for his detention without the right to release on conditions. There is in the circumstances a statutory cause for his continued detention. That detention has not become arbitrary. Under s4 of the Bill of Rights, s24 cannot impliedly repeal or revoke or in any way make s114O of the Act invalid or ineffective. Under s5, the continued detention under s114O of the Act is a limit to the right contained in s24(b) which is demonstrably justified in a free and democratic society during the process of considering whether a security risk certificate should be confirmed.

[53] In coming to my conclusions on the alleged breaches of the Bill of Rights, and in particular the breach of the principle underlying s24(b), I have considered the statements made in Choudry v Attorney-General [1999] 2 NZLR 582, which suggest that the Court should be prepared to scrutinise claims that a person is a risk to national security and that all such risks do not call for equal treatment. In that case, Richardson P said at p595:

The foregoing list of statutes and the broad definition of security in the New Zealand Security Intelligence Service Act indicate the wide spectrum of interests that may fall under the “national security” umbrella; these certainly do not all relate to “national security in its strictest sense.” It is obvious that all risks to national security do not call for equal treatment. It is also apparent that different security interests can be identified and distinguished.

In my view, a certificate under Part IVA is dealing with “national security” in its strictest sense. It is at the top end of the spectrum. It is for this reason that I am of the view that s5 of the Bill of Rights has application in respect of s24(b) of the Bill of Rights. It is also one of the reasons why I am not prepared to accept Mr Harrison’s invitation and critically examine the certificate and the summary of reasons given by the Director to assess Mr Zaoui’s security risk.

[54] The foregoing analysis of the provisions of the Bill of Rights leads me to the view that they do not assist me in interpreting the provisions of s114O of the Act, and that there can be no source of remedial jurisdiction of the type referred to in Simpson v Attorney-General (Baigent’s case) [1994] 3 NZLR 667 because there has been no breach of the Bill of Rights provisions. Further, they do not reinforce or bolster the submissions in support of this Court having an inherent jurisdiction to grant bail. The rights in this case, whether specific or general rights, are important. However, s5 of the Bill of Rights allows reasonable limits on those rights and, if the legislature has determined there is no right to release on conditions when a security risk certificate is in force, this is a reasonable limitation to the rights in the Bill of Rights permitted under s5 of the Bill of Rights.

Inherent jurisdiction to grant bail

[55] Mr Harrison submitted that, based on a fundamental English common law right, this Court has an inherent jurisdiction to grant bail. He relied on Gillbanks v Police [1994] 3 NZLR 61, R v Lee [2001] 3 NZLR 885, and R v Payne [2003] 3 NZLR 638. In addition, he referred to several United Kingdom authorities including R v Spilsbury [1898] 2 QB 615, and R v Secretary of State, Ex parte Turkoglu [1988] 1 QB 398. It was submitted on behalf of Mr Zaoui that statements by Donaldson MR in Turkoglu which suggested that the inherent jurisdiction only attached as an ancillary form of relief to other proceedings before the Court could not be correct, but if it were, the application could attach either to the extant District Court order under this Court’s inherent jurisdiction to exercise appropriate supervision over the orders of inferior Courts, or to the Inspector-General’s review.

[56] Finally, it was submitted that the provisions of s114K(4)(c) of the Act supported the view that the Court did have an inherent jurisdiction to grant bail in cases such as this. That provision provides that if the certificate is confirmed in the case of a person who is protected from removal or deportation by s129X, that person is to be released from custody and to be given an appropriate temporary permit. Thus, if the Inspector-General confirms the certificate in this case, Mr Zaoui, if he is protected by s129X, is to be released from custody. As already noted, Mr Zaoui, because of his refugee status, will be allowed to remain in New Zealand under an appropriate temporary permit unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention apply, in which case refoulement can occur.

[57] The Crown’s position is that there is only a vestigial jurisdiction vested in this Court since the codification of the bail provisions in the Bail Act 2000. Further, bail is a concept of criminal law and an integral part of the criminal procedure. There is no authoritative foundation for any jurisdiction in New Zealand to grant bail in non-criminal matters. It was submitted that the cases upon which Mr Zaoui relies are, in the main, criminal cases. Turkoglu, which was an immigration case, cannot be seen as a persuasive authority in this country because bail was permitted under the relevant legislation there being considered, but the inherent jurisdiction was used to impose conditions which were not available under the provisions of the Act. In Poon v Commissioner of Police [2000] NZAR 70, an extradition case, an analogy was drawn with s24(b) of the Bill of Rights, but this was on the basis that an offence had been committed overseas. It is not authority which assists in this case.

[58] The Crown also relied upon Turkoglu and submitted that if there were any inherent jurisdiction, such jurisdiction was ancillary to some other proceeding before the Court and cannot apply in vacuo. There was no proceeding before this Court to which such an ancillary form of relief could attach. Finally, s114O(2)(c) confirms the legislative intent that bail or release on conditions should not be given in cases under Part IVA. The person to whom a warrant of commitment is addressed is authorised to hold that person until deportation, or release under s114O(3) or until ordered by the High Court on an application for writ of habeas corpus. There is no provision for a release for any other reason, and it would therefore be inconsistent for there to be an inherent jurisdiction to grant bail.

[59] Although bail in a criminal proceeding was under consideration in Lee, I respectively adopt para 15 of the judgment which stated:

In our view, this jurisdiction flows from the Bail Act, but if it does not, then clearly it would exist as part of the Court’s inherent jurisdiction. This is because the power to grant bail in respect of matters before the High Court falls within the general principle that the Court may invoke its inherent jurisdiction whenever the justice of the case so demands, even in respect of matters which are regulated by statute provided that exercise is in harmony with the relevant legislation. (emphasis added)

[60] While it is not necessary to determine whether this Court does have a residual inherent jurisdiction to grant bail in civil matters, I am of the view that this Court does not have such a jurisdiction in this case. There are two reasons for this. First, for the reasons already given, I am satisfied that the legislative intent was that a person detained under Part IVA has no right to apply for release on conditions. The purpose of the procedure under Part IVA is to effectively and quickly resolve whether the detained person should be removed or deported, or allowed to stay in New Zealand (s114A(f)). An inherent jurisdiction cannot exist against this specific legislative intent. As was noted in Lee, the inherent jurisdiction must be exercised in harmony with the relevant legislation. It is not in harmony with s114O that there be an inherent right to grant bail.

[61] The Bill of Rights provisions cannot be called in aid. Part IVA deals with persons who may pose a risk to New Zealand national security. The legislation is to be determined against its purpose. In accordance with s5 of the Bill of Rights, the provisions of s114O of the Act are “demonstrably justified in a free and democratic society.” Mr Zaoui’s unfortunate history in this country cannot be used as an interpretation tool to establish an inherent jurisdiction which is not in harmony with s114O.

[62] Secondly, I find the authority of the English Court of Appeal in Turkoglu persuasive. Donaldson MR said at p400:

If I could come back to the general question of jurisdiction, in my judgment bail is to be regarded in civil proceedings – as it is in criminal proceedings – as ancillary to some other proceeding. It is not possible, so far as I know, to apply to any Court for bail in vacuo. It is essentially an ancillary form of relief. The problems which have arisen really all stem from the need to find an underlying substantive proceeding to which bail would be ancillary.

The Master of the Rolls also stated that “you cannot apply to the High Court for bail unless the High Court is seized of some sort of proceeding.” The same consideration was noted in paragraph 15 of Lee quoted in paragraph 59 above. The inherent jurisdiction applies to matters before this Court. In this case there is no proceeding in this Court in respect of which bail can be given as ancillary relief.

Remedial jurisdiction

[63] In light of my view that there has been no infringement of the provisions of the Bill of Rights, it is not necessary to consider whether in the circumstances there is a remedial jurisdiction to grant bail or to vary the warrant. Counsel disagreed as to the extent of the remedies which may be available under the Baigent principle. The significance of Baigent is that the Court of Appeal determined that the purpose and intention of the Bill of Rights is that there be an adequate public law remedy for infringement of those rights. The pre-requisite to a remedy is an infringement of a right. Thus, there cannot, in my view, be any question of a remedial jurisdiction stemming from the Baigent decision in this case.

Powers of District Court

[64] Mr Zaoui seeks an order that this Court, utilising the inherent or implied power of the District Court, vary the warrant of commitment. A District Court does not have the inherent powers of the High Court but does have an ancillary power to enable it to act effectively within its own jurisdiction. As was noted by Richardson P in delivering the judgment of the Court of Appeal in Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 at para 16:

The most important of these inherent powers are the powers of a Court, subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent an abuse of its process.

The powers of the District Court are ancillary and relate to process. They enable the Court to exercise its statutory functions, powers and duties, and to control its processes but do not extend the jurisdiction of the Court. They are not such that would allow the Court to vary the warrant once it has been lawfully issued pursuant to s114O.

[65] A further problem which confronts Mr Zaoui on this point is that, in my view, the District Court is functus officio. In this case, the warrant issued, it is not a nullity, there has been no challenge to it apart from in these proceedings, and there is now no way in which the Court could set aside its own order.

[66] Even if the District Court did have inherent jurisdiction to vary the order and was not functus officio, this would not be an appropriate case to exercise the jurisdiction. It was submitted that bail, or a transfer to the Mangere Centre, was entirely appropriate having regard to the duration, conditions and consequences of Mr Zaoui’s ongoing detention, the absence of risk factors, his refugee status, and the inadequacy of the official reasons for considering him to be a security risk. In normal circumstances, the duration, conditions and consequences of Mr Zaoui’s ongoing detention are matters which would tell towards a release on conditions if there were such a power. His refugee status is also a relevant factor in his favour. However, the RSAA on the one hand and the Director and subsequently the Inspector-General on the other, have different functions. The former’s role is to consider refugee status. The Inspector-General has a different role, namely, whether he or she should confirm a security risk certificate in circumstances where the national security may be at stake.

[67] As I have already indicated, I do not consider that the Court in this proceeding can or should form an assessment of the reasons of the Director in issuing the certificate. The only method of reviewing the certificate and assessing its veracity is the review by the Inspector-General under Part IVA of the Act. Mr Zaoui does not have a right to bring review proceedings in any Court in respect of the certificate or the Director’s decision to make the certificate (s114H(4) of the Act). Nor does he have the right, in my view, to endeavour to go behind the certificate in these proceedings. The presence of the certificate is an important factor which I would have taken into account if I had determined that there was a jurisdiction to release Mr Zaoui on bail. In the circumstances, I could not have inferred that there was an absence of risk factors. These same factors are relevant in considering a transfer to the Mangere Centre. The evidence before the Court suggests that it is a low security centre and I am not satisfied that it would have been an appropriate centre, without modifications to its structure and security requirements, to transfer to it a person subject to a security risk certificate.

Transfer under inherent jurisdiction of this Court

[68] I am also of the view that this Court does not have an inherent jurisdiction to vary the warrant. It does have a jurisdiction to make appropriate orders on a successful judicial review application under the provisions of the Judicature Amendment Act 1972. I have determined that part of the warrant be severed, but I am not prepared to make any other variations to it.

[69] For similar reasons given in paragraph 67, I would not have been prepared to order a transfer of Mr Zaoui to the Mangere Centre. While I accept that in some senses it is a “detention centre”, it is not the type of detention centre to which a person subject to a security risk certificate would normally be sent. Just as there are prisons with different security ratings, there must be places of detention which are both appropriate and inappropriate for the detention of persons subject to security risk certificates.

Habeas Corpus

[70] The application for habeas corpus is made on three grounds:

a)

The warrant of commitment was vitiated by error of law and was and is ultra vires and invalid to the extent that it provided and provides only for the detention of the plaintiff in Auckland Prison;

b) Mr Zaoui’s continuing detention is and continues to be unlawful, as contrary to his rights under all or any of the provisions of the Bill of Rights already referred to;

c) Appearing from the affidavits of the applicant and others filed in this proceeding.

[71] I have determined that the warrant was not ultra vires. If I had determined that it had been, I would have exercised the powers of the Manukau District Court and issued a further warrant detaining Mr Zaoui in the remand prison. I note that s15 of the Penal Institutions Act enables the Department of Corrections to transfer a person from one penal institution to another. It had power within this section to transfer Mr Zaoui to the remand prison. As the Mangere Centre is not a penal institution, it does not have the power to transfer him to that institution. However, presumably if the Department of Corrections was prepared to increase the security at the Mangere Centre, a transfer could be effected by agreement.

[72] Because of my findings on the Bill of Rights allegations, Mr Zaoui cannot obtain a writ of habeas corpus on his second ground.

[73] The third ground relates in the main to issues raised under the Bill of Rights applications and on the application that this Court has and should exercise an inherent jurisdiction to grant bail. The difficulty with this ground is that on my view of the law, Part IVA provides for continued detention until the process under it has been determined. That the process has taken longer than contemplated by the legislation, is not, in my view, a ground to issue a writ of habeas corpus.

[74] It follows from the findings in the previous paragraphs that the application for a writ of habeas corpus cannot succeed.

Evidential Objections Revisited

[75] It will be apparent from the findings which I have made that I agree that some of the evidence adduced on behalf of Mr Zaoui and part of his pleadings were inadmissible. To the extent that they endeavoured to dilute the certificate, or suggest that it should not be relied upon when considering a release on conditions if the Court had power to give such consideration, the evidence was not relevant. This Court in this proceeding cannot consider the validity or otherwise, or the strength or otherwise, of the grounds for issuing the certificate. Those matters are for the Inspector-General. In a similar light was the background to and the contents of the decision of the RSAA.

Human Rights Commission’s submissions

[76] The Human Rights Commission (the Commission), as it was entitled to do, intervened in these proceedings and made detailed and helpful submissions. It did so in accordance with the purpose of the Human Rights Act 1993 “to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights.” The Commission acknowledged the importance of concerns relating to national security but submitted that this should not lead to the abrogation of human rights protections that apply to everybody, irrespective of their status. Mr Hesketh, on the Commission’s behalf, stated that the Commission’s concerns were to ensure that the human rights standards that New Zealand has committed itself to are observed for Mr Zaoui’s sake; the precedent created by such a case; and the implications for New Zealand’s international reputation, if the standards are not adhered to.

[77] A summary of the issues addressed by the Commission is:

a) The Act can be interpreted as permitting the detention of Mr Zaoui in a place other than a penal institution;

b) The fact that Mr Zaoui was detained for a significant period of time in a penal institution with convicted criminals while awaiting determination of his refugee status contravenes the relevant international standards relating to refugees and the interpretation of those standards by international bodies;

c) Case law from other jurisdictions suggest that the length and circumstances of Mr Zaoui’s detention may amount to arbitrary detention and inhumane treatment;

d) Reports by Human Rights bodies on the effect of detention on asylum seekers suggests that for humane reasons, the plaintiff should be removed to a facility other than a prison.

[78] I have already determined that the Act does not limit the places in which a person subject to a security risk certificate may be detained to a penal institution. However, there was substance in a submission made by Mr Pike, for the Crown, that any other place of detention would have to be as secure or more secure than a penal institution. Where national security may be stake, it is appropriate to hold the person in a secure detention until such time as the position has been clarified and the process completed.

[79] The manner of Mr Zaoui’s earlier detention is not a matter on which Mr Harrison dwelt. His concern was the present and the future. The present detention is not, in my view, inhumane although I accept it may be somewhat burdensome to Mr Zaoui. It is a detention permitted by Part IVA of the Act. While the remand prison may not be ideal for such circumstances, I am not persuaded either that I have the power to direct a transfer to the Mangere Centre, or on the evidence that it is an appropriate detention centre for persons subject to a security risk certificate.

[80] I have already covered the allegation that Mr Zaoui’s detention “may amount to arbitrary detention and inhumane treatment.” On the basis of the international cases, I am not satisfied that Mr Zaoui’s present detention is inhumane. The conditions under which he is held are an acceptable balance between the need to hold secure a person subject to a security risk certificate, and the need to treat such person humanely. There are factors inherent in Mr Zaoui’s position which will make the treatment harsher for him than many others. These include language, religion, culinary habits, and the length of the detention. However, for reasons already given, I am not satisfied that a lawful detention was converted at any stage into an arbitrary detention.

[81] I have considered the case law referred to by Mr Hesketh. In A v Australia (1997) 4 BHRC 210 (UN Human Rights Committee), the Human Rights Committee considered the case of a Cambodian whose application for the status of refugee was formally rejected three years after the application was made. The Human Rights Committee noted that arbitrariness was defined as not merely being against the law, “but as including elements of ‘inappropriateness, injustice and lack of predictability’”. (The same phrase used by Hammond J in Manga.) The Committee said at para 9.4:

The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individuals, such as the likelihood of absconding and lack of co-operation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.

[82] In Mr Zaoui’s case, the Crown can provide appropriate justification for the continued detention. It is entitled to detain until the review of the Inspector-General has been completed. Part IVA does not contain any provision for periodical review. Presumably, this was because the legislature did not predict the delays which have occurred in this matter because of the legal process which the parties have taken. However, even if there were a right to review, it is difficult to see that any new decision would be made other than that Mr Zaoui’s detention be in the remand prison. The other overseas authorities referred to by the Commission do not alter my view that the lawful detention has not become arbitrary in this case.

[83] I accept the basic proposition that the effects of detention on asylum seekers suggest that for humane reasons, Mr Zaoui should be removed to a facility other than a prison. The difficulty is that there appears to be no other secure facility at which he can be detained in accordance with the provisions of s114O of the Act. Mr Zaoui may be unfortunate in being the first person to be the subject of a security risk certificate in this country. If there are good reasons for there to be a purpose built facility for such purposes, then that is a matter for Parliament or the Executive and not for the Courts. This Court can only apply the law as it sees it, including the statutory provisions.

[84] While recognising the force of the Commission’s arguments, I am of the view that the issues raised by the Commission are not such as to alter the findings to which I have come.

Result

[85] A summary of my findings on the issues raised in paragraph 6 above is:

a)

Under Part IVA of the Act, a person subject to a security risk certificate is to be mandatorily detained but that detention does not have to be in a prison. That detention continues until the process under Part IVA has been completed;

b) The form of the warrant of commitment was not authorised by the Act. The words “specified penal institution” are severed from the warrant, which is otherwise validated;

c) The Court does not have an inherent jurisdiction to grant bail to a person detained under s114O of the Act;

d) The Court does not have a remedial jurisdiction to grant bail to a person detained under s114O of the Act;

e) The District Court does not have either of the powers referred to in (c) and (d) above, nor the power to vary the warrant of commitment so as to direct that Mr Zaoui be held at the Mangere Centre;

f) Mr Zaoui’s present detention does not breach his rights under the Bill of Rights. There are no grounds for any indication of inconsistency;

g) This Court does not have power to grant bail to Mr Zaoui or vary the terms of his detention. It would not be appropriate on the evidence before the Court to order Mr Zaoui’s transfer to the Mangere Centre even if the Court had power;

h) There are no grounds for a writ of habeas corpus to issue.

[86] It follows from the above findings that apart from the finding on ultra vires, the application for judicial review, the originating applications and the application for a writ of habeas corpus are all unsuccessful.

Signed at pm on 16 July 2004

B J Paterson J

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