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Harrison, Rodney --- "Fundamentals freedoms and the "War on Terrorism"" [2005] NZYbkNZJur 8; (2005) 8.1 Yearbook of New Zealand Jurisprudence 141

Last Updated: 16 April 2015

Fundamental Freedoms and the "War on



In opening the 2005 International Bar Association Conference', the Governor-General of New Zealand, Dame Silvia Cartwright, referred to New Zealand's proud tradition of promoting and protecting human rights. It is the theme of this paper that, post 11 September 2001, this tradition has been seriously diminished.

No doubt by design, the title of the session at which this paper was presented, "Law or War", was provocative rather than profound, but this paper nevertheless attempts to address it. It begs various questions, including "whose law?" and "what war?". As a New Zealand human rights lawyer I propose to focus largely but not entirely on the New Zealand domestic situation post 9/11, in the hope that this approach may enlighten a wider audience. I have already signalled my understanding of the "what war?" question, by referring in the title of this paper to the so-called "war on terrorism".


Testifying before the Senate Judiciary Committee two months after 9/11, United States Attorney-General John Ashcroft had this to say to those who would criticise the Bush administration's actions in the wake of that atrocity:

To those who pit Americans against immigrants, and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my

Dr. Rodney Harrison QC, Barrister, Auckland, NZ

A version of this paper was first presented at Taw and Security Seminar' at the University of Waikato in August 2004. This revised version was presented at the joint business crime/criminal law working session, law or War' session of the 2004 International Bar Association Conference, Auckland on Tuesday 26 October 2004.

142 Yearbook of New Zealand Jurisprudence Vol 8.1

message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil. Our efforts have been crafted carefully to avoid infringing on constitutional rights while saving American lives.

Now, three years on, it may well be Mr Ashcroft's fervid hyperbole, rather than any attempt to invoke "phantoms of lost liberty", which most scares "peace-loving people". Yet many western-style democracies such as New Zealand, while not daring to accuse critics outright of aiding terrorists, nevertheless continue to toe the United States line, unrepentantly sacrificing fundamental freedoms in the name of the "war on terrorism".

I take comfort from being in some excellent company' in expressing serious disquiet that a declaration of war on a strategy — terrorism — should be invoked in support of measures, including pre-emptive invasion of other countries, which have not been utilised in real wars. By "real wars", I mean those formally declared by one country on another.

Of course, in today's distorted world, declaring war on a strategy enables you to do all manner of things, both to your own citizens and to those of other countries, which you would not be able to do in a "real war".

For example, you can take prisoners in the "war on terrorism", label them "enemy combatants", and by that sleight of hand refuse them recognition as "prisoners of war". Prisoners of the "war on terrorism", not being "prisoners of war", do not receive the protection of the Geneva Conventions; nor, it is now clear, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (Note: not just "against torture".)

2 For example, English Law Lord Johan Steyn, in his twenty-seventh F.A. Mann lecture "Guantanamo Bay: The Legal Black Hole", delivered on 25 November 2003 (available at inews/2033/noviguantanamo.htm).

2005 Fundamental Freedoms and the "War on Terrorism" 143

This, it is said, enables you to take battlefield captives in countries you have invaded, or indeed other "suspected terrorists" wherever you may find them; interrogate them endlessly; abuse and even torture them physically and psychologically; and hold them indefinitely and without trial. They require, after all, to be held for the greater good until hostilities are over — except that the "war on terrorism" is a never-ending battle against the forces of evil.

No doubt such disdain for fundamental principles of international law is inevitable, when the United States President's own legal counsel (one Alberto R. Gonzales) is prepared to dismiss the Geneva Conventions as "quaint".3 But, as various commentators have pointed out, what message does this send as to the appropriate treatment of United States soldiers in their turn captured in the "war on terrorism"?

On the other hand, the complaint that captured "enemy combatants" in the "war on terrorism" are being refused the protection of the Geneva Conventions is arguably beside the point, as not even non-combatant civilians captured in Iraq receive the protection of the Convention against Torture - far less actual combatants.'


It is becoming increasingly clear that, in the aftermath of 9/11, the

Bush administration made a conscious decision to apply international law selectively. On the one hand, alleged terrorists would be tried by military commissions set up by the Administration, purportedly pursuant to the laws of war. On the other hand, this would occur without according to those subjected to the process either "the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants". For detailed discussion of the secret policy development process within the White House, see the article by Tim Golden, "After Tenor, A Secret Rewriting of Military Law", New York Times, 24 October 2004.


Although the Bush Administration has previously claimed that the

Geneva Conventions were being applied comprehensively to prisoners taken in the conflict in Iraq, it now appears that this is not the case, particularly as regards non-Iraqis captured in Iraq: see New York Times, 26 October 2004, "U.S. Action Bars Right of Some Captured in Iraq" and also the Human Rights Watch Briefing Paper referred to in footnote 7 below.
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Moreover, even if accorded "prisoner of war" status and nominally extended the benefit of the Convention against Torture, your right not to be tortured is unlikely to be much comfort, if your interrogators are following American legal guidelines, disclosed in early 2004, on what is and is not torture. For, according to these guidelines, the physical and mental pain and suffering inflicted on you will not constitute "torture", if it is not classified as "severe"; or if your not-torturer lacks "the express purpose of inflicting pain or suffering" on you, or alternatively "has a good faith belief his actions will not result in prolonged mental harm".5

Against the backdrop of that "legal" perspective, we continue to learn of the torture and other ill-treatment of detainees at Guantanamo Bay, Abu Ghraib and other American-run detention facilities.' And we know that it has been a huge legal battle, even to begin to establish that the Bush administration is in any way answerable in the United States courts, for its actions towards detainees in the name of the "war on terrorism", at Guantanamo Bay and indeed on United States soil.'

Knowing this, it is surely an outrage, as yet largely unheralded, that only now are we beginning to learn for sure of the existence of (at least one) ultra-secret "ghost" prison, run by the Central Intelligence Agency in Jordan, said to be for the detention of senior Islamist terrorists captured in the "war on terrorism".8 If torture of detainees is officially

5 The document is at

  1. For a recent report on further disclosures of methods of torture used on Guantanamo Bay detainees, see the New York Times article, "Broad use of harsh tactics is described at Cuba Base", 17 October 2004. For earlier detailed discussion, see for example "The Road to Abu Ghraib", Human Rights Watch Report June 2004 (available at
  2. See Hamdi v Rumsfeld, Supreme Court of the United States, 28 June 2004; Rasul v Bush, Supreme Court of the United States, 28 June 2004.
  3. See New Zealand Herald, 15 October 2004; "The United States' `Disappeared' — the CIA's Long-Term 'Ghost Detainees, Human

2005 Fundamental Freedoms and the "War on Terrorism" 145

authorised or condoned on United States soil and in other places under United States control, what hope can there possibly be for civilised treatment of detainees deliberately placed outside the reach of United States law, and indeed, beyond the law of nations, including even the "law of war"?

I would contend that these practices are an outright abuse not only of "law" but equally of "war". They spring from a world view which is no less fundamentalist (and equally, racist) than the terrorist perspective. Indeed, one of the more subtle dangers of waging a "war on terrorism" is that it admits of no shades other than black and white, and brooks no inquiry as to historical cause and effect. In the words of neo-conservative commentator Richard Pearl:

Any attempt to discuss the roots of terrorism is simply an attempt to justify it. It simply needs to be fought and destroyed.

By contrast, columnist Johann Hari, writing in the Independent, makes the following telling points:9

Chechen jihadists murdered more than 300 children in Beslan. They are "terrorists". Since 1991, Russian troups have murdered more than 40,000 Chechen. They are not "terrorists"; they are "our allies".

The term "terrorism" simply means "violence we don't support". ...

The term "terrorism" — as used by the press and politicians today - invites us all to participate in a strange, wilful ignorance of cause and effect. How can this be a serious response to our problems?

When there are violent attacks, we need to understand why they are happening. If we do not, we are left flaying about in a historical void — and powerless to prevent further attacks....

It is nonsense to describe the battle we have been engaged in since September 11 as a "War on Terror".

Rights Watch briefing paper, October 2004 (available at

  1. Johann Hari, War on Terror' is way off course", The Independent,
    22 September 2004 (available at

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This misnomer has allowed any tin-pot dictatorship to target its own unhelpful minorities as "terrorists".

None of this is to suggest that we should in any way condone the use of violence to achieve political (or any other) ends. In the context of the present session, however, the danger lies in an unthinking acceptance of, and according of credibility to, flawed political slogans such as the "war on terrorism" as a justification sufficient in itself for the wholesale abrogation of basic human rights, whether of our own citizens or noncitizens — indeed, even as regards those suspected or accused of terrorist acts. It strikes me as a supreme irony that, of all of the many and varied inhabitants of Iraq subjected to the United States invasion, it is the head torturer, Saddam Hussein, who seems most likely to be accorded Geneva and Torture Convention rights, and a trial in accordance with international human rights standards.


Until 9/11, an understanding of nuances and subtleties such as these had been a feature of New Zealand's foreign policy for decades. New Zealand had learned well the lessons of its participation, at the behest of the United States, in the Vietnam war. And significantly, post 9/11, New Zealand has not been the subject of a terrorist attack, nor even likely threat of terrorist attack.10

In the wake of 9/11, however, none of these shared understandings has seemed any longer to matter to New Zealand's politicians. Despite the realities and remoteness of our situation, George Bush's "war on terrorism" has been indiscriminately invoked to justify a wholesale erosion of

10 New Zealanders regard it as highly ironic that the only two significant foreign incursions which New Zealand has faced — visiting white-collar criminals aside — are the July 1985 "Rainbow Warrior" affair, when French secret service agents committed the terrorist act of blowing up a Greenpeace vessel in Auckland Harbour (killing a crew member); and the covert attempts by agents of the Israeli secret service, Mossad, in March 2004 to secure the issuing of a New Zealand passport by fraudulent means. In each case, the source of the external threat proved to be a so-called "friendly country".

2005 Fundamental Freedoms and the "War on Terrorism" 147

previously existing rights and freedoms. While the political rhetoric is somewhat less overheated than that of Attorney-General Ashcroft, nonetheless the spectre of the "war on terrorism" has repeatedly been used — indeed, by a centre-left government — to silence and to deflect political opposition and popular concern about measures which would otherwise have been rightly rejected as unnecessary and extreme.

Thus in New Zealand post-9/11, we have seen legislative package after legislative package, each further eroding basic freedoms, being pushed through Parliament. There have been very few voices raised in opposition — an honourable exception being certain Green Party Members of Parliament. We now regularly get omnibus Parliamentary Bills, amending a wide range of legislation and increasing the powers of a variety of officials: Police, the security intelligence services, immigration officers, Customs officers, Ministers of the Crown. The powers being conferred are frequently much broader than, and sometimes even unconnected with, any conceivable goal of fighting terrorism.

There is not the time available to deal with the content of these measures, but the roll-call of names may invoke something: the Terrorism (Bombings and Financing) Bill; the Trans-National Organised Crime Bill; the Tele-Communications (Interception Capability) Bill; the Counter-Terrorism Bill; and (the latest, discussed below) the Identity (Citizenship and Travel Documents) Bill."

It is important to stress that the overall effect of the resulting legislation has not merely been to create many more criminal offences, in particular offences criminalizing the exercise of freedom of association. Significant potential civil disabilities and state powers of interference with property rights have also been created. Perhaps even more insidiously, the creation of offences revolving around an ever-broadening

ll For a detailed treatment of all but the last of these, see the December

2003 report by (American) John E Smith, a visiting Ian Axford Fellow, "New Zealand's Anti-Terrorism Campaign: Balancing Civil Liberties, National Security, and International Responsibilities" (unpublished).

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range of ill-defined "terrorism" offences, when coupled with increased powers of official surveillance to detect and prevent such offences, has immeasurably increased state powers of surveillance and diminished personal privacy.

It needs to be emphasised that New Zealand has not merely been implementing United Nations treaties and Security Council resolutions. Had the legislative reaction been limited to ensuring our compliance with international obligations imposed on New Zealand, there could have been few grounds for objection. But our so-called anti-terrorism legislation has from the outset gone beyond what the United Nations has required of us. At the same time, Parliament has chosen to ignore the warnings from that same quarter as to the need for balanced measures, lest we legislate away the very freedoms we are fighting to uphold. The following recent words of the UN Secretary-General are apt:

Our responses to terrorism as well as our efforts to thwart it and prevent it should uphold the human rights that terrorists aim to destroy. Human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism — not privileges to be sacrificed at a time of tension.

A further serious concern is the permanent nature of the legislative changes eroding fundamental freedoms which have been made and are continuing to be made. With the partial exception of the Terrorism Suppression Act,' all of the measures passed to date and also the Identity (Citizenship and Travel Documents) Bill next referred to have no "sunset clause" requiring Parliament to re-enact or revisit the provisions at the end of a specified time, so as to explicitly address the question whether their existence can still be

12 The Terrorism Suppression Act, s 70 provides for a Parliamentary Select Committee review of certain of its provisions, to be the subject of report before 1 December 2005. This is not a true "sunset clause", in that it places no onus on Parliament to take affirmative steps to prevent the law ceasing to operate. In the United States, even the much-criticised USA Patriot Act has a four year "sunset clause" for its significant provisions, requiring affirmative re-enactment by Congress and the President.

2005 Fundamental Freedoms and the "War on Terrorism" 149

justified. It seems extraordinary that a country so remote from the terrorist threats faced by other countries such as the United Kingdom and America should proceed on this open-ended basis, when many countries far more directly threatened do not.

Why has all this been happening here? In the public arena, there has been relatively little expression of concern about these developments, far less active debate. I believe this is because people are still waking up to the fact that the "war on terrorism" is in truth a confidence trick, perpetrated by means of fabricated threats of hostile capacity (such as Iraq's "weapons of mass destruction") and seriously flawed security intelligence. Even though all this should be blindingly obvious, the "war on terrorism" has readily become our bogeyman, scaring many New Zealanders into submission, so that we have ceased to be governed by our values, and bowed to fears instilled by others.

Coming on top of the succession of earlier blunderbuss Bills, all invoking the "war on terrorism" and New Zealand's national security interests as a justification for unnecessarily extreme measures, we now have the Identity (Citizenship and Travel Documents) Bill, which is currently before Parliament.

This Bill if enacted will amend both our citizenship legislation and our passports legislation. I am particularly alarmed about the intended changes to the passports legislation. The Bill proposes to confer power on the Minister of Internal Affairs to refuse to issue and to cancel New Zealand passports and other "New Zealand travel documents" on specified national security grounds. As regards the issue and cancellation of a New Zealand passport, this is an unprecedented and fundamental abrogation of the previously-existing right of New Zealand citizens to obtain and to continue to hold a passport, and thus of their freedom of movement, guaranteed by section 18 of the New Zealand Bill of Rights.

The national security grounds on which the Minister may refuse to issue or may cancel a passport or other travel

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document are identically worded. In each case, the action may be taken if the Minister believes on reasonable grounds that

(a) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,

a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or

the proliferation of weapons of mass destruction; or

any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and

the danger to the security of New Zealand cannot be effectively averted by other means; and

the refusal to issue a passport will prevent or effectively impede the ability of the person to carry out the intended action.

Now you might say, that list sounds sufficiently dire to warrant the introduction of this measure. We certainly don't want people going around proliferating "weapons of mass destruction", do we? (That said, the expression "weapons of mass destruction" is itself of uncertain ambit. Perhaps the intention is that, as with the Americans in Iraq, it is a case of "you will know one when (and if) you see one".)

But the real difficulty, as always, lies in the margin of appreciation conferred by the less striking words. Thus for example the powers may be invoked if the Minister believes the person concerned intends to engage in or facilitate a "terrorist act". That term is as defined in s 5 of the Terrorism Suppression Act. The list of "terrorist acts" includes some ideologically, politically or religiously motivated actions which should plainly be forbidden; but yet others that are much more borderline — such as acts intended to cause "major economic loss" in order to "unduly compel or to force a Government or an international organisation to do or abstain from doing any act". What is "major", and what is "undue compulsion", for example? There is therefore a danger that certain more radical forms of protest, perhaps

2005 Fundamental Freedoms and the "War on Terrorism" 151

criminal in other respects, could be elevated for political reasons to the status of a "terrorist act", and then used to prevent New Zealanders from engaging in overseas travel.

These concerns are seriously compounded when regard is had to other provisions of the Bill. Thus when it comes to appeals to the High Court against a Ministerial refusal to issue, or cancellation of, a passport or other travel document, there is special provision introduced by proposed sections 29AA and 29AB in relation to "classified security information".

Those of us involved in the Ahmed Zaoui case, discussed below, are very familiar with the use and misuse of the "classified security information" label. It is bad enough when the labelling exercise is at the hands of our secret squirrels, the New Zealand Security Intelligence Service. However, proposed section 29AA(5) extends the category of "classified security information" to information held by the Police. The definition of "classified security information" is also widened in other troubling respects.

If "classified security information" has been relied on or is to be presented to the Court on an appeal against the refusal to issue or cancellation of a travel document, the person affected has no right to be present and thus to challenge the information - although he or she may be entitled to a watered—down summary. However, a summary is no substitute for the ability directly to challenge the actual information relied on, by cross-examination of witnesses or detailed critique of content or the reliability of sources, whose identity otherwise will remain undisclosed.

A not dissimilar regime already exists under the Terrorism Suppression Act in relation to Court challenges to designation of "terrorist entities" and "associated entities". It is very troubling to see the continuing proliferation of the concept, completely antithetical to natural justice, of excluding litigants from access to crucial information on the basis of a bureaucratic judgment as to its perceived national security content.

Is it excessively unrealistic or reactionary to contend that, if the state proposes to remove the legal entitlements of a

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person present within our borders — and all the more so, a New Zealand citizen — the information on which that action is to be based must be fully disclosed, and the case proved by admissible evidence to the necessary standard? That would seem to be the view of the New Zealand government, if the "war on terrorism" can be invoked as the raison d'etre for taking action.

For those who seek to oppose or limit the ongoing erosion of fundamental rights, a major difficulty post 9/11 is that the driving force behind the steady onslaught of legislation and indeed executive measures has long ceased to be our Government's perception of the national interest. I have referred already to United Nations Treaties and Security Council resolutions, but it is readily apparent that there are other forces at work internationally.

What this external pressure means, it seems to me, is that appeals to reason, to moderation, and to traditional New Zealand values no longer seem to work. If you have the United States and its supporters pressing behind the scenes for extreme and unnecessary legislative measures in this country, the reasoned criticisms and indeed public protests traditionally used to oppose such measures appear ineffective. The spectre of the "war on terrorism" is readily invoked to justify the measures, even those which have the most tenuous connection with fighting terror.

In times such as these, the role of our Courts as guardians of human rights and fundamental values becomes increasingly important. Indeed, today we see the Courts of many western nations, our own included, having in extreme cases no other alternative than to lock horns with the executive (and in some cases, the legislature), in repeated and often intensely-fought battles over measures which excessively infringe human rights in the name of advancing national or international security. We see these battles being fought in the United States Supreme Court, in the superior courts of the United Kingdom, Australia and Canada, and indeed now in the New Zealand Courts.

2005 Fundamental Freedoms and the "War on Terrorism" 153


This conveniently takes us to New Zealand's very own post-9/11 cause celebre, the case of Algerian Ahmed Zaoui. On an appropriately much smaller scale, but with many similar ramifications, the Zaoui case is New Zealand's equivalent to the U.S. Guantanamo Bay litigation. In purely factual terms, the Guantanamo Bay comparison is not always apt. Ahmed Zaoui has been much better treated. He is not an "enemy combatant", nor a terrorist, nor even a suspected terrorist. Significantly, he has already been granted recognised refugee status, by the New Zealand judicial body empowered to make such designations.

Ahmed Zaoui is a former university lecturer in comparative religion and local Imam (or preacher) who was elected to the Algerian Parliament in 1990, in Algeria's first attempt at democratic elections since independence. When it became apparent that Mr Zaoui's political party, the Front Islamique du Salut, would take power in a landslide victory, the Algerian military effected a bloody and violent coup which it followed up with widespread torture and political killings. Ahmed Zaoui, along with many other supporters of his political party, was subjected to torture and eventually fled to Europe where he was later joined by his wife and family.'

By a series of complex twists and turns, Ahmed Zaoui arrived in New Zealand on 4 December 2002, and sought refugee status. In the intervening period between his flight from Algeria and his arrival in New Zealand, he had received several death sentences in his absence from the Algerian military regime; had been convicted (also in absentia) of criminal association in France; and had been convicted in Belgium on appeal (after an acquittal by the trial court) of criminal association - with whom remains unclear - and passport-related offences, for which he received a suspended sentence.

13 For a more detailed account of these and subsequent events, including

a copy of the comprehensive Refugee Status Appeals Authority decision granting Ahmed Zaoui refugee status, access any of;;

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On 20 March 2003, the Director of New Zealand's Security Intelligence Service issued New Zealand's first-ever "security risk certificate" against Ahmed Zaoui, pursuant to provisions of the Immigration Act 1987 which had been enacted in 1999. The central assertion is that on the basis of classified security information Ahmed Zaoui constitutes a "danger to the security of New Zealand", such that he should be deported from New Zealand notwithstanding his recognised refugee status and the likely consequences for him if deported and later returned (or "refouled") to Algeria. I have been extremely privileged to act as leading counsel for Ahmed Zaoui since that time.

Ahmed Zaoui was immediately detained and imprisoned upon his arrival in New Zealand, but since the issue of the security risk certificate his detention has been pursuant to the dedicated provisions of the Immigration Act. Mr Zaoui has challenged the certificate, pursuant to a process known as an "Inspector-General's review". That process and the developing circumstances of Mr Zaoui's ongoing detention, now fast approaching two years, have given rise to a significant amount of litigation, much of which has parallels in other common law jurisdictions such as the United States, England and Canada. Three separate judicial review proceedings have been initiated by Mr Zaoui. A fourth proceeding was initiated by Television New Zealand, seeking, ultimately with success, to overturn a Corrections Department ban on access to Mr Zaoui in prison for the purposes of conducting a television interview with him.

The first judicial review proceeding initiated by Ahmed Zaoui sought to challenge preliminary rulings by the then Inspector-General, that he was not entitled to a summary of the classified security information used against him or of the Director's threat assessment on which the security risk certificate was based, and furthermore that he was not entitled to have his human rights taken into account and balanced against New Zealand's interests when the Inspector-General was deciding whether or not to uphold the certificate. The Crown sought to uphold these rulings in the High Court, and for good measure also argued that Mr Zaoui was entirely

2005 Fundamental Freedoms and the "War on Terrorism" 155

precluded from seeking judicial review of the Inspector-General's preliminary rulings.

The Crown lost in the High Court on all counts. The Crown then appealed to the New Zealand Court of Appeal, further delaying the progress of the Inspector-General's review and considerably extending the length of Mr Zaoui's ongoing detention. While no appeal was pursued against the ruling that Mr Zaoui was entitled to an adequate summary, the Crown on appeal continued to contend that Mr Zaoui's human rights (in particular, his rights as a recognised refugee) were irrelevant to the Inspector-General's review, and that he was not entitled to access to the courts of law for the purpose of reviewing the Inspector-General's rulings.

On 1 October 2004, the Court of Appeal delivered judgment' rejecting the Crown grounds of appeal and upholding a cross-appeal by Mr Zaoui, who had contended that the High Court judgment did not go far enough on the human rights front. The effect of the judgment is adequately summarised by setting out the formal declarations made by the Court.' These are as follows:

Whether there are reasonable grounds for regarding the person as a danger to the security of New Zealand must be decided in terms of art 33.2 of the Refugee Convention. This follows from the explicit reference to the Refugee Convention in s 114C(6)(a) and requires the Inspector-General to consider whether there are reasonable grounds for regarding Mr Zaoui as a danger to the security of New Zealand in light of New Zealand's obligations under that Convention.

The security criteria in s 114C(6)(a) will be met only if there are objectively reasonable grounds based on credible evidence that Mr Zaoui constitutes a danger to the security of New Zealand of such seriousness that it would justify sending

14 Attorney-General v Zaoui and others, CA 20/04, 1 October 2004, Anderson P, Glazebrook and William Young JJ.

15 The declarations are those of the majority, Anderson P and Glazebrook J. William Young J was only prepared to associated himself fully with the first proposition, considering it premature to express a definite conclusion on the remaining matters.

156 Yearbook of New Zealand Jurisprudence Vol 8.1

a person back to persecution. The threshold is high and must involve a danger of substantial threatened harm to the security of New Zealand.

There must be a real connection between Mr Zaoui himself and the prospective or current danger to national security with an appreciable alleviation of that danger capable of being achieved through his deportation.

The Crown has now applied for leave to appeal to the Supreme Court of New Zealand against this ruling. 6 If leave is granted, the likely result will be to further delay the completion of the security risk certificate review and to increase the potential period of his detention until at least the middle of next year.

The second Zaoui proceeding was much more of a one-off and can be shortly dealt with. Owing to certain unfortunate remarks and actions on the part of the former Inspector-General subsequent to his preliminary legal rulings which were the subject of the first judicial review, including giving an interview commenting on the Zaoui case to a weekly magazine, proceedings were successfully brought asserting the Inspector-General's legal disqualification from further involvement in the review on the grounds of apparent bias." The former Inspector-General then resigned, and, after a delay of some ten weeks, a new Inspector-General was appointed to conduct the review and perform the Inspector-General's other statutory duties.

Ahmed Zaoui's third set of proceedings, issued in May this year, seeks to secure his outright release from prison, on bail or under habeas corpus, or alternatively his transfer from prison into less restrictive custody. (After being detained in solitary confinement in a maximum security prison for the first ten months of his time in New Zealand, Mr Zaoui was shifted to a remand prison, where he is effectively treated as a

16 For a discussion of the Supreme Court's ruling see Dr. Claire Breen's contribution to this volume


See Zaoui v Greig and others, High Court, Auckland Registry, CIV-2004-404-317, Salmon and Harrison JJ, 31 March 2004.

2005 Fundamental Freedoms and the "War on Terrorism" 157

remand criminal prisoner.) Ahmed Zaoui claims inter alia that he is entitled to release on bail in the Court's inherent jurisdiction, or alternatively under writ of habeas corpus on the grounds that his detention has become indefinite and thus arbitrary, in breach of section 22 of the New Zealand Bill of Rights. An Auckland Roman Catholic Community of Dominican priests who have befriended Ahmed Zaoui have offered to have him stay with them if granted bail.

These claims were unsuccessful in the High Court. On appeal to the Court of Appeal,' McGrath J held that a grant of bail was precluded as inconsistent with the statutory detention regime; O'Regan J held that a grant of bail was not precluded by the statutory regime but that bail would be granted only in exceptional circumstances and Mr Zaoui's were not exceptional; and Hammond J would have granted habeas corpus upon conditions on the grounds that Mr Zaoui's detention had become arbitrary.

On 14 October 2004, the Supreme Court granted Mr Zaoui leave to appeal the Court of Appeal decision, in relation to both outright release and transfer. The appeal will be argued early next month. As none of the four Judges who have dealt with the legal issues to date has agreed on the legal principles to be applied, it will be interesting to see what our new Supreme Court of Appeal makes of this, the second case to be heard by it since New Zealand abolished appeals to the Privy Council.

While I am no doubt open to accusations of impartiality, I have the greatest difficulty in understanding how the government's approach to the Zaoui case can possibly square with New Zealand's claimed serious commitment to the rule of law and to the upholding of human rights. In the course of the Zaoui litigation, the Crown has:

Opposed the provision to Mr Zaoui of an adequate declassified summary of the classified security information held about him and of the Director of Security's reasons for


Zaoui v Attorney-General and others, CA 166/04, 17 September 2004, McGrath, Hammond and O'Regan JJ.

158 Yearbook of New Zealand Jurisprudence Vol 8.1

concluding that he is a danger to the security of New Zealand, despite the Bill of Rights guarantee of the fundamental importance of natural justice, an absolutely critical aspect of which is the right to know what one is accused of.

Continuously rejected the very idea that Mr Zaoui's human rights, and in particular his rights under the Refugee Convention, should be taken into account in the security risk certificate review - even though the governing statute itself expressly provides that the applicable criterion to determine whether Mr Zaoui is a danger to the security of New Zealand" is to operate "in terms of Article 33.2 of the Refugee Convention".19

Strenuously opposed, in the context of both the first judicial review proceeding and the latest detention proceedings, the ventilating of Mr Zaoui's claims on their legal merits, asserting that all judicial review of the Inspector-General's preliminary rulings, and any court proceedings said to involve "collateral attack" on the issuing of the security risk certificate, are precluded. This position has been taken notwithstanding the fundamental constitutional importance of judicial review, bail and habeas corpus, and in the face of section 27(2) of the New Zealand Bill of Rights, which reads:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by the determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

Argued, in the context of the detention proceedings, that the statutory scheme pursuant to which Mr Zaoui is being detained precludes any review of, or relief on any grounds from, an ongoing detention which has to a large extent been brought about either as a consequence of legal proceedings properly and successfully brought by Mr Zaoui or (thus far) unsuccessful Crown appeals, this notwithstanding section 22 of the New Zealand Bill of Rights, which states:

19 The provision in question is section 114C(6) of the Immigration Act


Everyone has the right not to be arbitrarily arrested or


A summary of the classified security information and the Director of Security's threat assessment has now been provided to Mr Zaoui. The sky does not appear to have fallen in. Space does not permit an outline of its content here.' But it can in my view confidently be stated that the test applied by the Director of Security when issuing the security risk certificate, of "adverse impact on New Zealand's reputation and thus on New Zealand's international well-being", said to be likely if Mr Zaoui is permitted to remain here, falls far short of satisfying the three-point substantive test now laid down by the Court of Appeal, set out above. One suspects that it is the dawning realisation that the security risk certificate has been issued and maintained against Ahmed Zaoui on an entirely wrong legal basis which prompts the Crown's announced attempt to appeal the Court of Appeal decision further.

Despite ongoing controversy and mounting public concern, no attempt at resolution of the Zaoui case independently of the ongoing and protracted legal processes, even in the face of Mr Zaoui's successful legal outcomes - including an emphatic vindication of him and his commitment to peaceful change and democratic reform in his Algerian homeland by the Refugee Status Appeals Authority - has to date moved the government. The reasons for this are extremely difficult to fathom.

The most charitable interpretation is that, in the current climate, and perhaps by way of lip-service to the "war on terrorism", the mere incantation by our security services of the formula "danger to the security of New Zealand" in relation to Ahmed Zaoui has been enough to render the government, from the Prime Minister on down, deaf to entreaty, far less reason. Our leaders simply will not debate the merits of Ahmed Zaoui's case. They refuse to respond to

20 There is a summary of the summary in the judgment of Glazebrook J

in Attorney-General v Zaoui, CA 20/04, judgment 1 October 2004 at [851.

160 Yearbook of New Zealand Jurisprudence Vol 8.1

reasoned criticism of the flawed reasoning of the Director of Security now disclosed as underlying the security risk certificate issued against him. The Prime Minister and Cabinet Ministers, when directly approached, hide behind their lawyers, saying "talk to Crown Law". Crown Law (who also happen to act for the Director of Security) then says, "follow the security risk certificate review process". In response Mr Zaoui says, "what security risk certificate review process? In reality there has been none in train since November 2003, when the former Inspector-General gave his first, seriously flawed rulings."

Our Labour government seems to have taken it all so personally: how dare a controversial figure from a Muslim country come half way around the world, after passing through all those other countries, and successfully claim refugee status; then successfully assert his rights in the courts of law?

In a way, and all too ironically, Ahmed Zaoui has become the government's "Tampa".2' Many New Zealanders observed with fascinated horror the revealed forces of extreme xenophobia, and petulance over thwarted isolationist impulses, that led Australia to create its Nauru gulag for the "Tampa" boat people. These same forces now seem to move our government to go round knocking on other countries' doors, not only to provoke, through diplomatic channels, those countries' official outrage at the willingness of a New Zealand judicial body (the Refugee Status Appeals Authority) to reach its own independent conclusions when granting Ahmed Zaoui refugee status; but also (more worryingly) to

21 For details, see eg Amnesty International Australia Fact Sheet 07 "MV Tampa and the Pacific Solution", available at; Francine Feld, "The Tampa Case: Seeking Refuge in Domestic Law", [2002] Australian Journal of Human Rights 11 (available on the Australian Legal Information Institute website:; Jane Stratton and Siobhan McCann, "Staring into the Abyss — Confronting the Absence of Decency in Australian Refugee Law and Policy Development" [2002] Australian Journal of Human Rights 10 (available ibid).

see if any other country can be induced to take him off our hands.

In case anyone thinks this is just Ahmed Zaoui's counsel sounding off, I provide the following quotations from a very recent newspaper editorial:'

The government has shown breathtaking arrogance and an amazing contempt for civil liberties in the case of Ahmed Zaoui. You would think that a supposedly liberal administration, proud of its enlightened attitudes, would by now have started to feel some embarrassment

What is going on here? The handling of the Zaoui case by officials has been botched from the start, and rightly drew an unprecedentedly harsh rebuke from the Refugee Status Appeals Authority. The spooks have bungled, and the government is trying to protect them. But this does not explain the sheer wanton excess of its behaviour.

The suspicion remains that it is trying to do something more abject: to prove itself staunch in the war against terror, perhaps or perhaps just to do the CIA's bidding. Whatever it is — and it remains mysterious — the government does not seem to realise just how much harm it is doing itself. ...[T]he government, by its actions has betrayed the most sacred principles for which [its intellectual, academic, liberal wing] stood: respect for human rights; intellectual honesty; human decency.

Well, then, is it indeed to be a choice between "War or Law"? In truth, these are not mutually incompatible alternatives, and those of us who live under Western style democracy are not being required to choose, in any event. But for many others today, in Afghanistan and Iraq for example, the luxury of that choice has never existed. For myself, if ever forced to choose, I am with Sir Thomas More in the following exchange from Robert Bolt's play, "A Man for All Seasons":

Roper: So now you'd give the Devil the benefit of law!

22 Sunday Star-Times, 17 October 2004, "Zaoui Case Just Embarrassing".

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More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — Man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

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