Supreme Court Cases
Supreme Court,
Wellington
SC CIV 13/2004; [2005] 1 NZLR 577
10 and 11 November 2004; 25 November 2004
Elias CJ, Gault,
Keith, Blanchard and Eichelbaum JJ
Article 31 -
necessary - bail - whether national security can provide basis for a
blanket
exclusion of entitlement to bail - Refugee Convention 1951 Article 31
Detention - access to
bail - whether High Court has jurisdiction to grant bail on direct
application not ancillary to some other process before the Court
Immigration Act 1987 - detention - whether High Court has jurisdiction to grant bail on direct application not ancillary to some other process before the Court
Immigration Act 1987 -
relevance of grant of refugee status - bail - jurisdiction to grant
bail on direct
application not ancillary to some other process before the Court -
Immigration Act 1987, ss 114D, 114H, 114I, 114O, 128, 128B, 140(5), 150
Treaties -
interpretation of domestic legislation to be consistent with
international obligations - Article 31 - bail
Held:
1 The High
Court does have jurisdiction to grant bail on a direct application
which is not ancillary to some other process already before that
court. Unless excluded by statute, the inherent jurisdiction of
the High Court to grant bail may be directly invoked whenever someone
is detained under any enactment pending trial, sentence, appeal,
determination of legal status, or (in immigration cases) removal or
deportation from New Zealand. The jurisdiction can be exercised
whether or not the High Court is seized of proceedings challenging the
lawfulness of the detention. Detention must be by authority of
law. The exercise by inferior courts or officials of a statutory
authority to detain falls within the supervisory responsibilities of
the High Court. The High Court's inherent substantive
jurisdiction to grant bail can be invoked (where not modified by
statute) by summary application, by judicial review or by the procedure
of habeas corpus (see paras [30] - [32], [37], [41] & [43]).
R v Spilsbury (1898) 2 QB 615
applied; R v Secretary of State for
the Home Department; Ex parte Turkoglu [1988] 1 QB 398 (CA) and R (Sezek) v Secretary of State for the
Home Department [2002] 1 WLR 348 (CA) not followed.
2 The
inherent jurisdiction by its very nature, protects the basic liberty of
the individual to be free from detention, even if on a conditional
basis. For such jurisdiction to be taken away, clear statutory
wording is required. The presumption that legislation should if
possible be interpreted consistently with New Zealand's obligations
under international law is engaged here. Article 31(2) of the
Refugee Convention requires Contracting States not to apply to the
movement of certain refugees restrictions other than those which are
necessary. That provision plainly contemplates that individuals
who are detained should be entitled to challenge their detention.
While national security reasons could be one reason for detention, such
reasons have to be tested in the particular case. Security cannot
provide a basis for a blanket exclusion of such cases. Strong
statutory language is required to defeat that entitlement (see para
[44]).
3 Part 4A of
the Immigration Act 1987 does not contain the necessary implication
that in all circumstances the inherent jurisdiction of the High Court
to grant bail is excluded. When the processes for dealing with
persons who are subject to security risk certificates proceed with the
dispatch contemplated by the Act, bail is not expected to become an
issue. When it does, the matter of security will be of major
importance and the formulation of conditions will need to take that
into account. In that respect there is some guidance in the
provisions in other Parts of the Act directed to conditional release in
various circumstances (see paras [53] & [69]).
4 A District
Court, or the High Court on removal of an application into that court,
may vary a warrant of commitment issued under s 114O of the Immigration
Act 1987 to direct that the detention be in premises other than a penal
institution (see para [99]).
Appeal allowed.
Other cases mentioned
in judgment
Bugdaycay v Secretary of State for the Home Department [1987]
AC 514 (HL)
Choudry v Attorney-General
[1999] 2 NZLR 582 (CA)
Choudry v Attorney-General [1999] 3 NZLR 399 (CA)
Combined State Unions v State
Services Co-ordinating Committee [1982] 1 NZLR 742 (CA)
Department of Social Welfare v Stewart [1990] 1 NZLR 697 (Wylie
J)
Howard v Bodington (1877) 2
PD 203
In re Kray [1965] Ch 736
In re Nottingham Corporation [1897] 2 QB 502
Khawaja v Secretary of State for the
Home Department [1984] AC 74 (HL)
R v Gage 3 Vin Abridg 518
R v Lee [2001] 3 NZLR 858
R v Secretary of State for Home
Department, ex parte Swati [1986] 1 All ER 717 (CA)
Sellers v Maritime Safety Inspector
[1999] 2 NZLR 44 (CA)
Tobin v Minister for Correctional
Services (1980) 24 SASR 389
Counsel
R E Harrison QC and D Manning for the
appellant
T Arnold QC, Solicitor-General, C R Gwyn and T M Luey for the respondents
R M Hesketh and S A Bell for the intervener
[Editorial note: The assumption in this case by
the Supreme Court of jurisdiction to grant bail has been criticised as per incuriam because the Supreme
Court does not possess inherent jurisdiction. See Philip A Joseph,
"Constitutional Law" [2006] NZ Law Review 123, 149.]
JUDGMENT OF THE COURT
A The High Court has jurisdiction to grant bail to a person detained under Part 4A of the Immigration Act 1987.
B A District Court, or the High Court on removal of an application into that Court, may vary a warrant of commitment issued under s114O of the Immigration Act 1987 to direct that the detention be in premises other than a penal institution.
C The applications before the Court for bail and variation of the warrant of committal are adjourned until 10am on Thursday 9 December with the following directions:
i The respondents may file any further material they wish the Court to consider which is relevant to the questions of bail or the premises in which any detention should continue, in variation of the warrant of committal, by 3pm on Wednesday 1 December.
ii The parties are to file and
exchange written submissions by 3pm on 6 December.
Introduction
Facts
The High Court
judgment
The Court of Appeal
judgment
Issues
The inherent
jurisdiction to grant
bail
Does Part 4A preclude
the exercise of inherent jurisdiction to grant
bail?
Is there power to
transfer Mr Zaoui from detention in a penal
institution to some other place of detention?
Conclusions and
directions
Appendix:
Immigration Act 1987 Part 4A : Special procedures in cases involving
security concerns
Introduction
[1] Ahmed Zaoui is
detained in the Auckland Central Remand Prison under
a warrant issued by a District Court Judge under s114O in Part 4A of
the
Immigration
Act 1987 (the Act) which mandates special procedures in cases involving
security concerns.1 He has been found to be a refugee
in terms of the Refugee
Convention.2
But, before that finding was made, the Director of Security3
had
provided the Minister of Immigration with a security risk certificate
under Part 4A.
Mr Zaoui has
sought a review of that certificate but a decision on it is awaiting
the outcome of other proceedings subsequently brought by him.
[2] In those circumstances, which
have led to lengthy delays, Mr Zaoui
has made an application to the High Court for a grant of bail and,
alternatively, an application
for an order of habeas corpus releasing him from custody. If
unsuccessful in obtaining release from custody by either of those
means, he seeks to
have the warrant of commitment varied so that he can be transferred to
the
Mangere Refugee Resettlement Centre (the Mangere Centre).
[3] That Centre is not a penal
institution. The prescribed form of
warrant of commitment under s114O appears to contemplate only detention
in a penal institution as nominated by the District Court Judge.4
[4] Having been unsuccessful with any of his applications in both the High Court and the Court of Appeal, Mr Zaoui now appeals to this Court by leave given on 14 October 2004.
[5] It has seemed to us preferable to deal in the first instance with the jurisdictional arguments.
Facts
[6] Mr Zaoui, an
Algerian national, arrived in New Zealand on 4
December 2002 without a valid passport. He claimed refugee status. That
claim
prevented his removal from New Zealand.5 At first, on
6 December, a warrant of
commitment was issued under s128(7) of the Act. Mr Zaoui was placed in
maximum
security at Auckland Prison, Paremoremo. On 30 January 2003 a refugee
status
officer declined his application for refugee status. He immediately
appealed against
that decision to the Refugee Status Appeal Authority.
[7] Before the appeal could be heard, on 20 March 2003 the Director of Security provided a security risk certificate to the Minister of Immigration under s114D of the Act and the Minister made a preliminary decision to rely upon it. Mr Zaoui was served with notice of that decision in accordance with s114G(2)(d). He then sought, from the Inspector-General of Intelligence and Security,6 a review of the Director’s certificate under s114I.
[8] On 28 March 2003 the District
Court at Manukau issued a warrant of commitment under s114O(1)(b).
Section 114O, which is central to this
appeal, provides:
[9] In a decision made on 1 August 2003 the Refugee Status Appeal Authority found that Mr Zaoui was a refugee within the meaning of Article 1A(2) of the Refugee Convention and granted him refugee status.
[10] The Inspector-General issued an interlocutory decision on 15 October 2003 concerning the manner in which he proposed to conduct his review of the security risk certificate. This led Mr Zaoui to bring an application for judicial review of that interlocutory decision. His application succeeded in part in the High Court. The Crown was unsuccessful in an appeal to the Court of Appeal and is currently seeking leave for a further appeal of that matter to this Court.
[11] Mr Zaoui has also succeeded in a second judicial review proceeding in which the High Court found that the former Inspector-General should have recused himself from carrying out the review of the security risk certificate on the ground of apparent bias. A new Inspector-General has been appointed but the review has been unable to be progressed because of the appeals in the first judicial review proceeding.
[12] In the meantime, on 16 October 2003, Mr Zaoui had been transferred to the Auckland Central Remand Prison where he remains. On 11 March 2004 he commenced a proceeding in the District Court at Manukau seeking recall and/or amendment of the warrant of commitment issued under s114O(1)(b). On 7 May 2004 he sought from the High Court an order for his release on bail or an order of habeas corpus. The District Court proceeding was then transferred to the High Court and all matters were heard together by Paterson J on 1 and 2 July 2004.
The
High Court judgment
[13] Paterson J
delivered a reserved judgment on 16 July 2004.7 He
found that any residual inherent jurisdiction for the High Court to
grant bail in
civil matters was excluded in the particular case by the statutory
scheme in Part 4A. He
said that the purpose of the procedure under Part 4A was to resolve
effectively and
quickly whether the detained person should be removed or deported or
should be
allowed to stay in New Zealand. It was not in harmony with s114O that
there be an
inherent right to grant bail. The New Zealand Bill of Rights Act 1990
did not
require a different interpretation even if one was available. The Judge
also
considered that there was no High Court proceeding in respect of which
bail could be
granted as ancillary relief, as English authority required.
[14] The Judge concluded that Mr Zaoui’s rights had not been breached. His conditions of detention did not constitute disproportionately severe treatment or punishment in terms of s9 of the Bill of Rights. Attempts were being made to accommodate his needs. There was no suggestion that the detention regime was intended to humiliate him. Nor was there an arbitrary detention because of the long delays which had occurred. They were not deliberate, being caused by legitimate efforts to clarify the legal process for the Inspector-General’s review. Mr Zaoui’s continued detention was a reasonable limitation on his liberty in a free and democratic society. Rights concerning criminal process, in so far as they applied by analogy, were also not breached.
[15] Paterson J was prepared to hold that s114O did not restrict detention to penal institutions. Other possible places of detention included special facilities such as military barracks or mental hospitals. He found that the prescribed form of warrant of commitment was ultra vires because in referring only to detention in a penal institution it unlawfully narrowed the statutory scheme. The Judge severed that requirement from the warrant. He declined, however, to order a change in Mr Zaoui’s place of detention as in his view detention in prison was inevitable in the circumstances as the Mangere Centre was unsuitable for the detention of a person subject to a security risk certificate.
[16] Paterson J also decided that the jurisdiction of the District Court did not include a power to vary the warrant. The District Court was functus officio having exercised its statutory power. It could not revisit its decision in the absence of the invalidity of the warrant.
The
Court of Appeal judgment
[17] The members of the
Court of Appeal were divided in their views and delivered separate
judgments. On the question whether conditional
release was available under Part 4A or on an exercise of the Court’s
inherent
jurisdiction, McGrath J observed that, when it was introduced by
amendment in 1999,
the drafters had resorted to the provisions of Part 3, which concerns
deportation of
persons threatening national security and of suspected terrorists. Both
parts
dealt with the same subject matter. The criteria which form a basis for
certificates
under Part 4A can form the basis for deportation decisions under Part
3. However, the
provisions of s79 enabling conditional release from detention were not
included in
Part 4A. The Judge noted a distinction between the two sets of
provisions in
that the information relied on by the Minister under Part 3 has no
statutory
protection from use in judicial processes, as is given by the issue of
a security risk
certificate. This distinction in the statutory policy of protection of
information
appeared to McGrath J to be central to the differing provisions
concerning release from
detention. The conclusion he drew from the comparison of Parts 3 and 4A
was that
Parliament did not provide for conditional release for persons detained
under s114O
because it was impractical to provide for the exercise of a judicial
discretion for
that purpose in circumstances in which the parties would necessarily
have to be
informed of the matters to be reviewed. The crucial information would
always be of a
classified
security kind which could not be produced at a hearing before the
District Court. Such a regime would be unworkable.
[18] McGrath J said that he reached this conclusion with reluctance. He remarked that the outcome was not in conformity with the Refugee Convention. And, although he was of the view that the High Court does possess an inherent jurisdiction to grant bail without any requirement that in a civil proceeding it must be ancillary to some other proceeding, he considered this could not occur in cases under Part 4A when powers of conditional release had been plainly excluded. For the Court to enter into an enquiry about the matters underlying a security risk certificate would invoke a collateral challenge to the certificate and would be inconsistent with the statutory scheme.
[19] The other judge in the majority, O’Regan J, agreed that the High Court had an inherent jurisdiction to grant bail whenever the justice of the case so demanded and not merely as ancillary to another proceeding. Furthermore, he considered that bail could be granted under the Act. He referred to ss128 and 128B (in Part 6) which provided that a person detained under that Part must not be granted bail but could be released upon statutory conditions. He asked why the legislature would feel it necessary to provide that bail was not available under those sections if the High Court’s inherent jurisdiction would not otherwise apply.
[20] Turning to Part 4A, O’Regan J
accepted that the inability of the
Court to have access to classified information which was the basis for
the security
risk certificate might make the exercise of the bail jurisdiction
difficult. In cases
where the Part 4A process proceeded in a quick and effective way, as
Parliament intended,
it was highly unlikely that the issue of bail would arise or that it
would be
appropriate to grant bail. O’Regan J was of the view that bail could
still be granted
in exceptional circumstances, but this was not such a case, although he
left open the
possibility if the review process were not able to be brought to a
reasonably swift
conclusion.
[21] On the habeas corpus application, McGrath J noted that s114O(2)(c) expressly requires a detention under Part 4A to terminate when, on an application for a writ of habeas corpus, the High Court or a Judge orders the detaining authority to release the person. That provision gave effect to s23(1(c) of the Bill of Rights. McGrath J said that Parliament had in mind situations in which the detaining authority could not show there was a legal justification for the detention. The reference to habeas corpus did not in his view provide a general power for the High Court to order conditional release of a person lawfully detained.
[22] McGrath J said that the initial detention of Mr Zaoui under Part 4A had not been arbitrary given the national security concerns. The real question was whether administrative detention for lengthy periods was justified in that context. It would be arbitrary if the purpose of detention could not be fulfilled – in the event it became impossible to deport Mr Zaoui for an indefinite period of time. Should that eventuate, the Court would grant habeas corpus and order his release on appropriate conditions. At the present point in the process of the Inspector-General’s review it was possible deportation could still be achieved. Nor was McGrath J persuaded that there was an arbitrary detention because of the prolonged period of delay caused by challenges to the review process or because of the conditions of the detention. There had also been no breach of s9 of the Bill of Rights. O’Regan J agreed that there had been no such breaches.
[23] Hammond J’s dissenting judgment dealt only with the habeas corpus application. He would have granted it. He considered that Mr Zaoui was now arbitrarily detained and should be released on bail. Section 22 of the Bill of Rights protected persons from a detention under the Act which, although lawful at the outset, as in the present case, became unreasonable by virtue of indefinite or prolonged duration or disproportionate consequences. Here the statutory system and associated processes had miscarried; in Hammond J’s view there had been systemic delay. The nearly two years of incarceration had become oppressive and “quite disproportionate to the things which are said about him”.
[24] On the application for the warrant of commitment to be varied and directed to the Mangere Centre, McGrath J considered that the respondents were correct in conceding that s114O does not require the detention to be in a penal institution. But he was of the opinion that the Executive was not obliged to provide for a number of detention options when prescribing the form of warrant. Under s114O it was the Executive which had the power to determine whether detention at other premises would be permitted, not the courts. The cross-appeal against Paterson J’s judgment on this point should be allowed. He also said that if the Executive were to promulgate a regulation to permit detention in the Mangere Centre, the District Court could give effect to it by varying the warrant, which was permitted by s16 of the Interpretation Act 1999. The views of O’Regan J on this application were essentially the same as those of McGrath J.
Issues
[25] The issues addressed in the present judgment are:
The inherent
jurisdiction to grant bail
[26] The respondents
contend that the non-statutory jurisdiction of the
High Court to grant bail is an ancillary power which does not give rise
to a
substantive remedy. They submit that it can be exercised only in
relation to a proceeding
already before the Court.
[27] That proposition was accepted
by Paterson J in the High Court.8 He
did not consider it necessary to decide a submission on behalf of the
respondents that the
non-statutory jurisdiction of the High Court to grant bail was confined
to criminal cases, but held that bail was not available in the present
case because
there was no
substantive proceeding before the High Court. In reaching this
conclusion Paterson J found persuasive the views of Sir John Donaldson
MR in R v Secretary of
State for
the Home Department, ex parte Turkoglu
that
On that basis, an application for bail could be entertained by the High Court only if it had before it an application for judicial review, or an appeal (including a bail appeal), or if it was otherwise seized of proceedings to which questions of interim custody were properly ancillary.
[28] In the Court of Appeal, McGrath
J10 and O’Regan J11 rejected the
contentions of the respondents that the inherent jurisdiction of the
High Court to
grant bail was limited to bail in criminal cases, citing the decision
of the High
Court in R v Lee that the
inherent jurisdiction may be invoked “whenever the justice of the
case so demands”.12 The point is not pressed again on
further appeal to this
Court. We agree that the inherent jurisdiction to grant bail is not
confined to cases
of detention of
those charged with criminal offences. That appears from the history of
the inherent jurisdiction to grant bail referred to below.13
And the explicit
exclusion of bail under
ss128 and 128B of the Act can only be a reference to exclusion of the
inherent jurisdiction: there is no statutory jurisdiction to grant bail
under
the Immigration Act and the Bail Act 2000 is concerned only with those
charged with
criminal offences.
[29] The Solicitor-General
repeats in this Court the argument that the
jurisdiction is merely ancillary to other proceedings before the Court.
Since the
High Court was not seized of any substantive application or appeal in
relation to
which questions of bail are ancillary, he submits that it lacked
jurisdiction to grant
bail as a “stand alone” remedy. The same contention was rejected in the
Court of Appeal
by McGrath J and O’Regan J. (Hammond J did not deal with the inherent
jurisdiction, because he considered that the jurisdiction to grant bail
arose through
the writ of habeas corpus ad
subjiciendum.)
[30] We consider that the High Court does have a jurisdiction to grant bail on a direct application which is not ancillary to some other process already before that Court. We do not share the doubts expressed in R v Secretary of State for the Home Department, ex parte Turkoglu and repeated in R (Sezek) v Secretary of State for Home Department14 as to whether the jurisdiction can be invoked by the High Court in vacuo, when the High Court is not already seized of a challenge to the detention. In neither case was there extensive consideration of authority or the history of the inherent jurisdiction to grant bail. And in neither case was the court considering the supervisory jurisdiction of the superior courts.
[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted bail in its original inherent jurisdiction after bail had been declined by a District Court.
[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as “stand alone” or in vacuo.
[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction.
[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840.15 The powers of the English superior courts have devolved in New Zealand on the High Court.16 The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as “inherent” or “implied”).17
[35] Some confusion may arise because the term “inherent jurisdiction” is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction.18
[36] Both the substantive and procedural inherent jurisdiction can be displaced by legislation. Thus, the procedural mechanisms adopted by the courts to bring bail applications before them may be affected by legislation, as for example through the changes to the exercise of the supervisory jurisdiction over inferior courts brought about by the Judicature Amendment Act 1972.
[37] Similarly, the inherent substantive jurisdiction of the High Court to grant bail can be excluded by statute, provided the statutory purpose is plain. It was made clear in R v Spilsbury by Lord Russell CJ19 and Kennedy J20 that there is a presumption against erosion of what Kennedy J called “the ancient and important jurisdiction of this Court to admit to bail”. In that case the defendant had failed in his challenge to an order for his return to Tangier under the Fugitive Offenders Act 1881 (UK). The Act contained no power to grant bail pending the fugitive’s return. Lord Russell CJ held that the inherent jurisdiction to grant bail could be invoked:
Now arises a question of some difficulty. Failing the application to set aside the order for the return of the defendant, he asks that he may be admitted to bail until the time when he is to be returned. So far as I know this is the first occasion on which this question has arisen for decision. It is necessary to consider first how the question is to be viewed. Was Mr Sutton right in saying that the defendant was bound to shew that power is given to admit to bail under the Fugitive Offenders Act, 1881, or, in other words, is the onus of shewing that the power to admit to bail exists cast on the defendant? I think not. This Court has, independently of statute, by the common law, jurisdiction to admit to bail. Therefore the case ought to be looked at in this way: does the Act of Parliament, either expressly or by necessary implication, deprive the Court of that power? The law relating to this subject is well stated in 1 Chitty’s Criminal Law, 2nd ed. p97, as follows: “The Court of King’s Bench, or any judge thereof in vacation, not being restrained or affected by the statute 3 Edw. 1, c.15(1) in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatever.”21
[38] Despite admitting “some
difficulty … in working out the procedure”, Lord Russell CJ came to the
conclusion that the provisions of the
statute were consistent with recognition of the power to bail in the
inherent
jurisdiction pending return:
[39] Habeas corpus was originally a procedural mechanism of the common law adopted by the courts to bring someone before a superior court of common law or equity so that the court could exercise jurisdiction, both civil and criminal, over the person. It became the main method by which someone in detention could be brought before the court to enable the validity of the detention to be assessed. Following the Habeas Corpus Act 1679, which reformed procedure in criminal cases, habeas corpus became the principal way in which those arrested for offences could apply for bail.23
[40] The reason for using habeas corpus in this way was to secure the right either to be tried according to law (including in accordance with the requirements for prompt trial in the 1679 Act) or release, including on terms as to bail.24 But where bail was granted, the jurisdiction being exercised included the inherent common law power to grant bail.25
[41] In the 19th century the courts
permitted summary chambers
applications for bail, which saved the expense of bringing the prisoner
before the court
under habeas corpus.26 In In re Kray,27
Lord Gardiner LC approved as still valid the
views expressed by Hale that “[t]he Court of King’s Bench may virtute officii
bail any person brought before them …upon an original indictment
before them in
the county where they sit, or upon an indictment removed by certiorari,
or upon a
prisoner removed by habeas corpus”.28 To that list
must be added the more modern
summary application which has largely obviated the need to have
recourse to
procedure by habeas corpus. The High Court’s inherent substantive
jurisdiction to
grant bail can still be invoked today (where not modified by statute)
by different
processes: on summary application, by judicial review, or by the
procedure of habeas
corpus, if necessary.29
[42] Where the jurisdiction is not excluded, it may be doubted that recourse to it is properly to be characterised as “exceptional”, as suggested by O’Regan J,30 particularly where there is no statutory power to release on conditions under the legislation providing power of detention.31 Whether bail should be granted in a particular case is a decision which must be taken in context, including the context of the scheme and purpose of the legislative power to detain. It may be in a particular case of detention prior to deportation that the likelihood of speedy removal will count against the grant of bail as a matter of discretion. We are not at present concerned with the exercise of the power, but with its availability.
[43] We conclude therefore that the inherent jurisdiction of the High Court to grant bail is not restricted to cases where it is ancillary to other proceedings before the High Court. It is an original common law substantive jurisdiction which continues unless abrogated by statute. It is therefore necessary to deal with the contention of the respondents that the jurisdiction is inconsistent with detention under Part 4A of the Act.
Does Part 4A preclude the exercise of inherent jurisdiction to grant bail?
[44] The inherent jurisdiction by
its very nature, protects the basic
liberty of the individual to be free from detention, even if on a
conditional basis.
For such a jurisdiction to be taken away, clear statutory wording is
required.32
Further, as McGrath J recognises, the presumption that legislation
should if
possible be interpreted consistently with New Zealand’s obligations
under
international law is engaged here.33 Article 31(2) of
the Refugee Convention requires
Contracting States not to apply to the movement of certain refugees
restrictions other
than those which are necessary. That provision – the application of
which the
Solicitor-General did
not question – plainly contemplates that individuals who are detained
should be entitled to challenge their detention. The Solicitor-General
said that
national security reasons could be one reason for detention. No doubt
that is so, but
such reasons have to be tested in the particular case. Security cannot
provide a
basis for a blanket exclusion of such cases. Again, strong statutory
language is required
to defeat that entitlement.
[45] The scheme of the
relevant provisions has been set out in the
judgments of Paterson J and in the Court of Appeal, by McGrath J. Their
setting in
the Act must be considered. Part 4A was introduced into the Act by
amendment in
1999. The Act, in separate parts, provides procedures for dealing with
categories
of persons in respect of whom there are issues concerning entitlements
to enter or
remain in New Zealand.
[46] The powers of detention under the Act relate to the possibility that the person detained or considered for detention may be removed from New Zealand once the necessary procedures have been followed.
[47] Those subject to that possibility differ greatly : they may, for instance, be long term lawful residents or they may have been refused entry at the border since they had no entitlement at all to enter. The reasons for removal may also differ greatly, from that simple lack of entitlement (possibly of people who have no connection at all with New Zealand) to being considered a threat to national security or having committed serious offences within a prescribed period of obtaining residence. The decision makers and the form of the proceedings, too, may differ greatly depending on the rights and interests in issue; further, those rights and interests may be in sharp competition, as with the right of a very long term resident to continue to live here against the protection by the State of national security.
[48] The categories of individuals
can be listed in this way (some will
fall under more than one heading):
[49] It is against that background and by reference to particular features of the detention provisions for each group that we consider the ways in which Part 4A deals with detention. It is not easy to discern any pattern in the approach in the different Parts to places of detention, how that is to be determined, and by whom. Under Part 3 conditional release may be ordered as an alternative to detention in custody at the time of initial consideration,48 whereas in other instances it may be ordered only on subsequent review of a warrant of commitment. In the case of a convicted criminal, a police officer may impose conditions for remaining in the community pending deportation.49 Where bail is expressly excluded there is, in one case, an express provision for conditional release which is of similar effect,50 whereas, in the other, the availability of conditional release is left (at best) to be inferred from a requirement that the “question of that person’s continued custody” is to be considered at short intervals.51
[50] Three matters are significant.
The first is that the express
exclusion of bail in ss128 and 128B recognises that bail would
otherwise be possible. The
second is that
release on conditions, even for persons considered to be threats to
national security or suspected terrorists, is contemplated under Part 3
subject to a case
by case assessment of the public interest.52 The
third is that, apart from
short periods of detention, only under Part 4A is there no express
provision for regular
reviews of detention.
[51] In the drafting of Part 4A, the wording for some of the sections has plainly been adopted from provisions in other Parts of the Act. Yet while those other Parts have more complete provisions, Part 4A has omissions. For example, there is no express direction as to the premises in which a person the subject of a warrant of commitment may be detained, and by whom that is to be determined. There is no express provision for review of the detention, no matter how long it may continue and in what circumstances. That would be a significant omission when persons enjoying refugee status are affected, having regard to their Convention right to be detained only to the extent that is necessary.53
[52] Where statutory provisions appear less than comprehensive the courts must do their best to give them workable meaning. Inferences from other provisions can assist where they lead in one direction. That is not the position here. And it is of prime importance that any powers of detention be approached in light of the fundamental right, long recognised under the common law, of liberty for all persons subject only to such limits as are imposed by law.
[53] Consideration of the provisions of Part 4A should therefore proceed on the basis that there is a jurisdiction to grant bail in a suitable case unless that is clearly excluded, expressly or by necessary implication. In Part 4A it is not expressly excluded, as it is in ss128(15) and 128B(12).
[54] Paterson J was of the view that
bail is precluded by implication
from the provisions of Part 4A. He said that he was
[55] McGrath J reached the same conclusion “with reluctance” but O’Regan J disagreed. Hammond J did not deal with this point.
[56] The matters relied upon as
strongly precluding the possibility of
bail have been carefully reviewed in the judgments of the courts below.
First, it
is said that the scheme of Part 4A contemplates speedy processes for
the assessment and
removal of persons who pose security risks. That is a stated object of
Part 4A.55
Where a security risk certificate is to be reviewed (which must be
sought
within five days), the Inspector-General must proceed with “all
reasonable speed and
diligence”.56 After a certificate has been confirmed
on review (the determination of
which must be notified (“as soon as possible”), the Minister must make
a final
decision whether to rely on the certificate within three days. If it is
relied upon a
deportation order is to be made “immediately”.57
[57] On a preliminary decision by the Minister to rely on a
security
risk certificate the person to whom it relates must as soon as
practicable be arrested
and placed in custody.58 The person is to be brought
before a District Court Judge
who “must” issue a warrant of commitment for the detention of the
person “until”
execution of a removal or deportation order, release under s114O(3) or
an order is
made by the High Court on an application for habeas corpus.
[58] Section 114O(3) is important
because it gives guidance as to where
a person is to be detained and the circumstances in which he or she
might be
released. Detention is to be in a prison or “other premises”. Release
is provided
for if the person succeeds on review of the security risk certificate
“or if for
any other reason the person is to be released”. Other reasons appear in
s114L which
provides that if either the security risk certificate or the Minister’s
reliance on it
is withdrawn, the person is to be released from custody immediately.
Further express
provisions for release apply upon a decision by the Inspector-General
that the
certificate was not properly made,59 upon failure by
the Minister to make a final decision
within the three days allowed and, even though the security risk
certificate is
confirmed, if deportation is prevented by s129X. These are said, by the
respondents,
to be the only “other reasons” intended. It was therefore argued that,
because
Part 4A contains no provisions for conditional release or continuing
supervision of the detention, persons to whom the provisions apply are
to be detained in
custody in prison or “other premises” under the management of the
person to whom
warrants of commitment are issued until the statutory processes are
complete, or
give rise to illegality attracting habeas corpus. Bail, although not
expressly
excluded, would be impractical because of the inability of the court to
assess its
appropriateness without access to the classified security information
on which the security
risk certificate is based. It was submitted that no inference should be
drawn from the
express exclusion of bail in Part 6 of the Act as the references there
are of
procedural significance only since conditional release is provided for
the
circumstances concerned.
[59] Do these provisions necessarily preclude the exercise of the High Court’s inherent jurisdiction to grant bail in all circumstances? This case illustrates circumstances that may arise. The processes might not be completed in the short time frame apparently contemplated. Those affected may have particular rights as refugees.
[60] As already indicated, release
into the community with or without
conditions is not wholly precluded under the Act. Those threatening
national
security or suspected terrorists may be granted conditional release
pending
deportation under Part 3. A person who is the subject of a security
risk certificate but
who cannot be deported60 is released without
conditions. Even under s128B, where bail
is expressly excluded, the detention must be reviewed by a Judge after
28 days.
[61] As we have already
observed,61 the express prohibition of bail in
s128B is significant. It is applicable in situations somewhat analogous
to those
covered by Part 4A (suspected terrorist pending clarification). That
prohibition
cannot be dismissed as merely procedural – no express statutory
alternative of
conditional release is provided for. It was in the Act when Part 4A was
introduced,
yet no similar express prohibition was included in Part 4A.
[62] McGrath J based his conclusion
that Part 4A did not provide for
conditional release essentially on what he referred to as the
impracticality of
informing the parties of the matters to be reviewed:
[63] We do not accept that argument
for two reasons, the first relating
to the Act itself and the second to the general law and practice of the
courts
relating to security
sensitive information.
[64] So far as the first reason is concerned, the practical problems to which McGrath J refers could equally arise in respect of the same information under Part 3 (national security and suspected terrorists). Despite that, Parliament has provided for conditional release of those who are held under that Part. The overlap between the parts was indeed made explicit by Parliament in 1999 in the definitions of “relevant security criteria” which it included in s114C(4) in Part 4A. They refer directly to the tests in ss72 and 73(1) in Part 3. Further, that Part recognises that in an appeal brought in respect of suspected terrorists questions of information security may arise and accordingly it empowers the court to make appropriate orders to protect sensitive information.63
[65] Secondly, the Courts are increasingly familiar with such issues and no longer apply blanket rules but make assessments in the particular case, as appears for instance from Choudry v Attorney-General64 and the cases from Australia, Canada, New Zealand, the United Kingdom and the United States discussed in that decision.
[66] The practical difficulty in determining whether in a particular case bail should be granted obviously would be very real where there is a security risk certificate based on classified security information. We do not see that, however, as dictating a conclusion that the jurisdiction to grant bail must be inconsistent with detention ordered on the basis of a security risk certificate. The Solicitor-General submitted that to embark upon a consideration of bail would be to fly in the face of the statutory conclusiveness of the certificate.65 But that statutory conclusiveness relates to a different question. There is no necessary incompatibility in a person being regarded as a danger to the security of New Zealand within the statutory security criteria if allowed to remain in this country, on the one hand, and the release of that person under conditions fixed and supervised by the courts for a limited period whilst the statutory processes are completed, on the other. The considerations would not necessarily be the same.
[67] The provision in s114O(2) directed to release from detention by order of the High Court on an application for habeas corpus draws no distinction between an order for outright release and an order granting bail. If construed as encompassing an order granting bail, it recognises the jurisdiction directly. But even if it is construed as contemplating only outright release on such an application, it is not to be inferred that bail on that or any other form of application is precluded.
[68] We see no need to confine the words in s114O(3) “or if for any other reason the person is to be released” to the reasons expressly set out in other provisions of Part 4A. Nor do the provisions expressly requiring release in certain circumstances necessarily require mandatory detention until those circumstances arise. The references to release in the specified circumstances are quite capable of being read as applying in the event that the person has not otherwise been released.
[69] Accordingly, we are not
convinced that Part 4A contains the
necessary implication that in all circumstances the inherent
jurisdiction of the
High Court to grant bail is excluded. Of course, when the processes for
dealing with
persons who are subject to security risk certificates proceed with the
dispatch
contemplated by the Act, bail is not expected to become an issue. When
it does, the matter
of security will be of major importance and the formulation of
conditions will need
to take that into account. In that respect there is some guidance in
the provisions
in other Parts of the Act directed to conditional release in various
circumstances.
[70] Mr Zaoui has made it clear that he is not seeking unconditional release and that his preferred outcome is bail. Given that, and the conclusion that the High Court has inherent jurisdiction to grant bail, it is unnecessary at this stage to consider the alternative argument for Mr Zaoui that his detention has become arbitrary in terms of s22 of the Bill of Rights. It is not suggested that the initial detention was arbitrary. The principal basis upon which arbitrariness is put is the length of time that has elapsed since the warrant of commitment was made. The time Mr Zaoui has spent in custody can be taken into account in considering whether bail should be granted. Any grant of bail will alleviate the present circumstances relied on as making his continued detention arbitrary.
Is there power to
transfer Mr Zaoui from
detention in a penal
institution to some other
place of detention?
[71] In this part of our
reasons we consider whether the High Court and
the District Court have jurisdiction or power to order Mr Zaoui’s
transfer
from detention in a penal institution to some other place of detention.
[72] In the High Court, Paterson J decided that there was such a power but declined to exercise it because he considered that the Mangere Centre would not be an appropriate place to which to transfer a person subject to a security risk certificate unless the Centre’s structure and security requirements were modified.
[73] In the Court of Appeal, McGrath and O’Regan JJ held that the prescribed form of the warrant of commitment had lawfully restricted the premises where a person could be detained under s114O of the Act to penal institutions.
[74] We have already set out s114O
but for convenience reproduce the
parts most relevant to the present issue:
[75] The
Immigration Regulations 1999 prescribe the following form:66
[76] It will be seen that the Act
contemplates, first, the warrant
being addressed to persons other than the Superintendent of a penal
institution (otherwise
subs(2) would
simply have referred to such an official); second, detention in a
“prison or … other premises” (subs(3)). But the form, at least on first
reading, is
limited to detention in a “penal institution”.67
Since the Solicitor-General accepted that the
reference to “other premises” plainly means that the power conferred by
s114O
extends to premises other than penal institutions, provided they meet
the
requirements for detention under the Act, it is convenient to turn at
once to his
submissions.
[77] Although in form the issue now under consideration relates to the possibility of transferring Mr Zaoui to different premises, the Solicitor-General’s case was that not only was there no power to order such a transfer, but also that the original commitment of a person in Mr Zaoui’s situation could be to a penal institution only. His submissions had three limbs: first, the scheme of Part 4A was inconsistent with any implied power to order a transfer; second, the legislature had left the authorisation of the premises to the Executive, by means of the form of the warrant which was to be prescribed, and the prescribed form authorised penal institutions alone; and, third, the last conclusion was reinforced by the absence of the necessary supportive powers for those detaining persons in premises other than penal institutions.
[78] Under the first heading, the Solicitor-General argued that the whole structure of Part 4A contemplated a person would be held in a penal institution until the security risk certificate process was completed. But, as the Solicitor-General accepted, the legislation reveals an underlying assumption that the process would be completed reasonably promptly. As noted,68 it is not difficult to find indications pointing in that direction. Accepting that implication, nevertheless it could be envisaged there might be instances, not necessarily as dramatic as the present, where for whatever reasons the review process was not completed in a timely way. Even where the review was proceeding with all reasonable speed, there might be circumstances relating to the particular detainee, such as the effects of detention in a penal institution upon the individual, which required consideration of a transfer if the legislation permits. We are unconvinced by the case for implying a legislative intent that the detainee is to remain in a penal institution throughout. If the issue is approached as one of implication, we do not find any sufficient basis for reading s114O as excluding the ability to order a different form of detention.
[79] In considering the Solicitor-General’s second argument (that by the provision for a prescribed form, Parliament has delegated to the Executive the power to identify the premises available for detention) we think it helpful to examine how the Act as a whole deals with two features regulating places of detention: the nature of the premises where detainees may be held, and the mode of identifying the places of detention.
[80] As to the nature of the
premises, under two Parts of the Act
detention is limited to penal institutions: national security and
terrorist cases
under Part 3 and criminal offender cases under Part 4. By contrast the
remaining Parts,
including Part 4A, empower the Judge or Registrar to order detention in
other
premises: Part 2 does so in the case of persons in New Zealand
unlawfully, and Part 6
does so in the case of those who have been refused entry and are being
held for
return. It is difficult to discern any pattern in an unnecessarily
complex Act which
has grown over the past 40 years from 23 pages to over 200 pages
without ever
being systematically consolidated. But, given these distinctions, it
may be
inferred that in Part 4A, in defining the scope of the places where
detention is
permissible, Parliament deliberately took a broad rather than a narrow
approach.
[81] Turning to the approval and
identification of places of detention,
the Act deals with this in differing ways. First, in all cases
Parliament
identifies the range of places of detention. Second, in all instances
the Judge or Registrar
addresses the particular warrant to the person in charge of the
specified premises.
Third, with one exception, Parliament has not conferred express power
on the Executive
to approve in a general way the premises identified as appropriate for
detention.
Nor has it conferred express power on the Governor-General in Council
or on any
official to exclude premises from the range of those identified in the
legislation.
In the one Part where Parliament conferred power to approve premises
(Part 6), it did
so explicitly.
[82] While the Act is a patchwork and it would be unsafe to
place much
reliance on supposed patterns it can at least be said that, where
Parliament has
delegated the
power to approve premises for purposes of detention, it has done so
expressly.
[83] The power to make regulations
is in s150 of the Act which we set
out to the extent relevant:
[84] The final head of power, in
para (m), is subsidiary; that appears
from its residual nature, the origins and purpose of that standard
provision,69
and the other 16 tightly delimited heads of power set out in s150. In
any event, a
regulation limiting the scope of one of the Act's provisions would not
give “full effect”
to the provisions of the Act. Nor on the face of it can a form with
that narrowing effect
be said to be for “the purposes of this Act”, in terms of para (a).
Paterson J in the
High Court held that the form forbids what the Act expressly permits.
He was however
willing to declare that the italicised words “specified penal
institution”,
appearing in the form of the warrant, should be severed; the warrant as
so amended he held to
be valid.
[85] In the Court of Appeal McGrath J, contrasting other provisions where either Parliament determined the place of detention, or empowered the decision maker in relation to the warrant (District Court Judge or Registrar) to do so, asked whether the Executive is entitled to make that choice for all cases arising under Part 4A through the regulation making power, rather than invariably providing options for the Judge to exercise in the particular case. The contrast with Part 3, also concerned with threats to national security, he saw as clearly significant. While Part 3 provided for detention in penal institutions alone, it offered an alternative (as he saw it, unavailable in Part 4A) of release on conditions. McGrath J said that, in effect, the question of an alternative to detention for those whose certificates are being reviewed had been left to be dealt with by regulation. While the form could have provided for a place or places of detention other than a penal institution, the Executive was not obliged to provide a number of different detention options when prescribing the form of a warrant for the purposes of s114O.
[86] We are unable to agree. First, s150 empowers the Executive to prescribe forms (here, warrants of commitment) for the purposes of the Act; it does not confer any power to exclude types of premises of detention provided for in the Act. Next, as McGrath J's discussion accepts, the appropriateness of a particular place of detention will often depend on the conditions and circumstances of the individual: he says that “there are [now] circumstances [relating to Mr Zaoui] indicating the desirability of a consideration of the appropriateness of [detention in a penal institution] in the particular circumstances of this case.” That, he said, could be addressed by the Executive promulgating a regulation permitting a wider choice. But, as he also accepted, that assessment of the particular circumstances is for the District Court Judge and not for the Executive. Such an assessment plainly falls within the power of the Judge under s114O to issue the warrant, but neither that section nor s150 confers a general power on the Executive (through regulations or chief executive action) to exclude specified premises for the purpose of detention, or to add specific premises or categories of premises. In this respect s114O may be contrasted with s128B(7) in Part 6, conferring on specified chief executives the power to approve premises.
[87] Except with the antecedent authority of Parliament, subordinate legislation cannot repeal or interfere with the operation of a statute.70 As noted earlier,71 the form may be read as limiting the ability afforded to the issuing Judge to select the appropriate premises among those the Act has made available for the detention of persons subject to Part 4A. Since we have found no power, express or implied, for the Executive to limit the scope of the legislation in this way, we need to examine the consequence for the prescribed form. The appropriate approach is to prefer a construction fulfilling the legislative purpose, rather than one contrary to it (and therefore leading to invalidity).
[88] Plainly, the form is designed
to facilitate the Judge’s exercise
of the power conferred by s114O to issue a warrant of commitment to a
prison or
other premises.
In concluding that the form provided for detention in a penal
institution only, McGrath J drew attention to the fact that it was
addressed to the
Superintendent of a penal institution to be specified, and directed the
police to deliver
the subject of the warrant to that institution. The manner in which the
form is addressed
aside, however, the wording of the body of the form is inconsistent
with the
proposition that a Superintendent of a penal institution is the only
permissible
detainer. The form leaves a blank space requiring the Judge to name the
person who is to
receive the detainee, the word “Superintendent” being among the
italicised
instructions regarding the information to be inserted in the blank
spaces. Were the
intention that the only possible detainer be a Superintendent, the word
Superintendent
would have appeared in the body of the form; a blank space allowing the
insertion
of alternatives would have been unnecessary.
[89] The blank spaces are to be
filled in by the Judge issuing the
particular warrant. Taking, for example, the issue of a warrant for
detention at
the Mangere Centre, this would involve the replacement of
“Superintendent” by the
title of the person in charge of the Centre, the inclusion of the name
of the Centre
in the appropriate blank spaces (twice), and the inclusion of the
appropriate
title in the final blank space. Such minor adjustments to provisions of
the form would not
contradict the overall thrust of either the form itself or the
legislation
generally. On the contrary, such adjustments would be in conformity
with the purpose of
s114O in conferring the power of commitment in broad terms and of s150
in giving
the power to make regulations for the purposes of the Act. We are of
opinion that
in the respects discussed the specified form can fairly be regarded as
directory within the classic test stated by Lord Penzance in Howard v Bodington:
[90] We conclude that, if appropriate on the facts of a particular case, it is permissible for a District Court Judge to make adjustments to the form of the kind just discussed.
[91] Thus we cannot accept either part of the Solicitor-General’s second limb. The legislature has not left the authorisation of the premises to the Executive by means of the form of warrant which was to be prescribed. The prescribed form is not to be interpreted as authorising detention in penal institutions alone; it may be varied to permit detention in other premises authorised under s114O. Since Parliament has made choices available regarding the nature of the place of detention and its location, on its face the legislation has left it to the Judge, as the person designated to issue the warrant, to make the choice. It would be a most unusual legislative device to limit that power by the indirect route of a form-making power delegated to the Executive. The more natural and obvious construction, and our preferred conclusion, is that the Judge is empowered to make those decisions.
[92] The Solicitor-General’s third
argument for reading s114O narrowly
and as not extending to premises beyond penal institutions was the lack
of the
necessary supportive powers for those who detain persons in such
premises.
Disagreeing with McGrath J’s reasoning that the problem could be
resolved if the
Executive amended the prescribed form, he said:
[93] We see at least two difficulties with that argument. First, it would excise from s114O the Judge’s power to order detention in premises other than penal institutions. Second, there are other instances in the Act where Parliament has conferred the power to direct detention in premises other than penal institutions, yet specific supportive powers are absent. That is so in respect of persons unlawfully in New Zealand, under Part 2; the empowering sections73 relate only to the period leading up to and the time of arrest, not to the period of detention. That also appears to be the case with persons detained in premises other than penal institutions under s128B: while they are detained under that section, the wider powers conferred by s140A are not available since they have not come under the regime of s128.74
[94] Persons held in premises other
than penal institutions under the
statutory powers authorising the issue of a warrant of commitment are
subject to
the terms of that warrant authorising their detention. The prescribed
forms of
warrant “direct” the person in charge of the premises to “detain” the
person who is the
subject of the warrant for the appropriate period or until certain
steps are taken.75
Plainly that authority and direction must carry with them powers of
control over
those detained. In those cases, as with Part 4A, the source of the
powers of the
detainer is the warrant together with s140(5), added in 1999, which
provides:
[95] Obviously enough the premises to which the individual is committed for detention must be appropriate for detaining that individual and the person in charge of the premises must be in a practical position to meet the obligations of detention and to take the “reasonable measures” contemplated by s140(5) of the Act. Any Judge issuing a warrant for other premises would have to be satisfied about those matters.
[96] The final question is whether the power to issue the warrant, having already been exercised, may be exercised again. We have no doubt that it may be. By its very nature this is the kind of power that may be exercised from time to time, in response to changing circumstances.76
[97] The application to vary the
warrant, originally made to the
District Court, was removed into the High Court. The purpose appears to
have been to
allow variation to be considered along with the applications made
directly to
the High Court for the release of Mr Zaoui. The matter before the
District
Court was removed to the High Court under s43(6) of the District Courts
Act 1947:
[98] The general terms of that provision plainly contemplate that the High Court will have all the powers that a District Court would have had to deal with the application.
[99] Accordingly we conclude the
High Court has the power to act under
s114O on the application removed to it. That power includes the power
to
order the detention of Mr Zaoui in premises considered appropriate by
the Judge,
whether they are a penal institution or not. We emphasise the need for
that Judge to
make a careful assessment of whether the proposed premises are fit for
the
purpose.
Conclusions
and directions
[100] We have concluded
that the High Court has jurisdiction both to
grant bail and to vary the warrant committing Mr Zaoui to detention in
a penal
institution. We make declarations accordingly. In the ordinary course,
we would have
remitted the matter to the High Court for consideration of the
jurisdiction to grant
bail and the power to vary the warrant in the light of any further
material or
submissions put forward. Because Mr Zaoui has been in custody for more
than 23 months,
however, we consider that it would be oppressive to let the process be
drawn out
any more and that further delay should not be countenanced. In the
circumstances we
are prepared to exercise the original jurisdiction of the High Court
before
remitting the matter to that Court for any continuing supervision.
[101] This is a case where national
security issues arise. It is also a
case about the liberty of someone who has refugee status in New Zealand
and who is
entitled to the
benefit of the Refugee Convention requirement that only such
restrictions upon his liberty as are necessary should be imposed upon
him. The applications
fall to be considered against the background of concern for liberty
recognised by
the Bill of Rights Act and the common law. Accordingly the case raises
significant
matters of public interest which require careful balance.
[102] The respondents should have an opportunity to provide any additional material they wish to place before the Court relevant to the exercise of the jurisdiction to grant bail or vary the terms of the warrant of commitment. The material so far supplied has not been directed to the issues of bail and custody. They are not necessarily the same as the considerations upon which a security risk certificate can be justified. Both parties should also be given the opportunity to address the Court further as to whether either jurisdiction should be invoked and, if so, what orders and conditions are appropriate.
[103] The respondents may provide
any further materials they wish the
Court to consider which are relevant to bail or the premises in which
any
detention should continue, in variation of the warrant of committal, by
3pm on Wednesday 1 December. Written submissions by the parties are to
be filed and
exchanged by 3pm on Monday 6 December. The Court will reconvene at 10am
on Thursday 9 December to hear further argument on whether the
jurisdiction to
grant bail or vary the warrant should be exercised and, if so in either
case, on what
terms.
Solicitors for the
appellant: McLeod & Associates (Auckland)
Solicitors for the
respondents: Crown Law Office (Wellington)
114A Object of Part—The object of this Part is to—
(a) Recognise that the New Zealand Security Intelligence Service holds classified security information that is relevant to the administration of this Act; and
(b) Recognise that
such classified security information should continue to be protected in
any use of it under this Act or in any proceedings which relate to
such use; and
(c) Recognise that
the public interest requires nevertheless that such information be used
for the purposes of this Act, but equally that fairness requires some
protection for the rights of any individual affected by it; and
(d) Establish that
the balance between the public interest and the individual's rights is
best achieved by allowing an independent person of high judicial
standing to
consider the information and approve its proposed use; and
(e) Recognise that
the significance of the information in question in a security sense is
such that its approved use should mean that no further avenues are
available to
the individual under this Act and that removal or deportation, as the
case may require, can normally proceed immediately; and thus
(f) 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.
114B Definitions—(1) In this Part, unless
the context otherwise requires,—
Certificate, or security risk certificate, means a
certificate made under section 114D:
Classified security information
means information about the threat to security, public order, or public
interest posed by an identifiable individual which is held by
the New Zealand Security Intelligence Service, being information which,
in the opinion of the Director, cannot be divulged to the individual in
question or to other
persons because both—
(a) The information—
(ii) Is about particular
operations that have been undertaken, or are being or are proposed to
be undertaken, in pursuance of any of the functions of the
Service or of another intelligence and security agency (as defined in
section 2 of the Intelligence and Security Committee Act 1996); or
(iii) Has been provided to the New
Zealand Security Intelligence Service by the government of any other
country or by an agency of such a
government, and is information that cannot be disclosed by the Service
because the government or agency by which that information has been
provided will not consent to the disclosure; and
(b) Disclosure of the information would be likely—
Director, or Director of Security, means the Director of Security within the meaning of the New Zealand Security Intelligence Service Act 1969:
Inspector-General means the
Inspector-General of Intelligence and Security established and
appointed under the Inspector-General of Intelligence and Security
Act 1996, and, in any case where the Inspector-General is not
available, within a time that will ensure that any review is completed
with all reasonable speed, to
review a decision of the Director of Security, includes a person
appointed under subsection (2) to act as Inspector-General:
Relevant security criterion, or security criterion, has the meaning given by section 114C.
(2) The
Governor-General, on the recommendation of the Prime Minister following
consultation with the Leader of the Opposition, may appoint a person
who has
previously held office as a Judge of the High Court of New Zealand to
act as Inspector-General in any case where the Inspector-General is not
available,
within a time that will ensure that any review is completed with all
reasonable speed, to review a decision of the Director of Security
under this Part.
(3) The fact that a
person appointed under subsection (2) exercises or performs any
function or power of the Inspector-General under this Part is conclusive
evidence of the authority of the person to do so, and no person may in
any proceedings question whether the occasion requiring or authorising
the person to
exercise or perform the function or power has arisen or has ceased.
114C Relevant security criteria—
(1) For the purposes of this Part, relevant security criterion
means any of the following, as the case may require:
(a) A relevant
entry security criterion within the meaning of
subsection (2), where a decision is to be taken as to whether—
(b) A relevant
removal security criterion within the meaning of
subsection (3), where a decision is to be taken as to whether—
(c) A relevant
deportation security criterion within the meaning of
subsection (4), where a decision is to be taken as to whether—
(d) A relevant
refugee removal security criterion within the meaning of subsection
(5), where a decision is to be taken as to whether a person
in New Zealand who is a refugee status claimant or refugee—
(e) A relevant
refugee deportation security criterion within the
meaning of subsection (6), where a decision is to be taken as to
whether a person
in New Zealand who is a refugee status claimant or refugee—
(2) The relevant entry security criteria are as follows:
(a) Any of the criteria set out in section 7(1)(e), (f), (g)(i), and (h) (which relate to terrorism and danger to security or public order):
(b) That the person constitutes a threat to national security in terms of section 72:
(c) Any of the criteria set out in section 73(1) (which relates to suspected terrorists)
(3) The relevant removal security criteria are any of the criteria set out in section 7(1)(e), (f), (g)(i), and (h) (which relate to terrorism and danger to security or public order).
(4) The relevant deportation security criteria are as follows:
(a) That the person constitutes a threat to national security in terms of section 72:
(b) Any of the criteria set out in section 73(1) (which relates to suspected terrorists).
(5) The relevant
refugee removal security criteria are a combination of
any 1 or more of the criteria listed in subsection (3) as relevant
removal
security criteria, taken together with either or both of the following
criteria:
(a) That there are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention:
(b) That the person is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime, in terms of Article 33.2 of the Refugee Convention.
(6) The relevant refugee deportation security criteria are a combination of any 1 or more of the criteria listed in subsection (4) as relevant deportation security criteria, taken together with either or both of the following criteria:
(a) That there are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention:
(b) That the person is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime, in terms of Article 33.2 of the Refugee Convention.
(7) More than 1 relevant security criterion may be applicable at the same time to a particular person, but nothing in this section requires more than 1 relevant security criterion to be applied under this Part in any particular case (except to the extent that subsections (5) and (6) require a combination of criteria in relation to refugees and refugee status claimants).
114D Director of Security may provide Minister with security risk certificate—
(1) If the Director of Security holds classified security information that the Director is satisfied—
(a) Relates to an identifiable individual who is not a New Zealand citizen and about whom decisions are to be, or can be, made under this Act; and
(b) Is credible, having regard to the source or sources of the information and its nature, and is relevant to the relevant security criterion; and
(c) Would mean, when applying a relevant security criterion to the situation of that person in light of that information, that the person meets the criterion,— the Director may provide a security risk certificate to the Minister to that effect.
(2) A certificate must be in writing and must clearly identify the relevant security criterion or criteria that it relates to.
(3) In making a decision under subsection (1) the Director may take into account any relevant information that does not itself meet the definition of classified security information.
(4) For the purposes of applying this section and this Part, any reference to the belief or opinion of the Minister in the wording of a particular security criterion is to be read as including an alternative reference to the belief or opinion of the Director.
114E Minister may require oral briefing
from Director on contents of certificate—
(1) On receipt of a security risk certificate the Minister may
call for
an oral briefing from the Director on the contents of the certificate.
(2) The content of the oral briefing is to be determined by the Director, and may not be recorded by the Minister or on the Minister's behalf.
(3) The Minister must not divulge the contents of the briefing to any other person, and may not be called to give evidence in any court or tribunal in relation to anything coming to the Minister's knowledge as a result of the briefing.
114F Effect of certificate—
(1) 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 section 114I, and the
Minister may
rely on the certificate when making a decision under this Part whether
or not
the Minister receives an oral briefing under section 114E.
(2) Where the Minister does rely on a certificate,—
(a) The Minister is not obliged to give reasons for any decision made in reliance on the certificate, and section 23 of the Official Information Act 1982 does not apply; and
(b) The Minister may not be compelled in any proceedings to provide those reasons or any information relating to them or to any briefing under section 114E, other than the information contained in the certificate itself.
114G Effect where Minister makes
preliminary decision to rely on
certificate—
(1) If the Minister makes a preliminary decision to rely on a
security
risk certificate in relation to an individual, the Minister must give a
notice to that
effect to the chief executive of the Department of Labour.
(2) The effect of the giving of a notice under subsection (1) in the case of a person who is not in New Zealand is—
(a) To require the processing of any application or other matter in relation to the named individual by a visa officer or immigration officer that is currently under way to be suspended, despite any other requirement of this Act; and
(b) To require the chief executive to immediately ensure that the processing is in fact stopped; and
(c) To require any matter under this Act in relation to the named individual that is proceeding in an Authority, the Board, the Tribunal, the District Court, or the High Court to be suspended, notwithstanding anything in this Act or any other enactment or rule of law; and
(d) To require the chief executive to send to the person a copy of the notice and to notify the person of the matters specified in subparagraphs (i) to (v) of subsection (4)(d).
(3) The effect of the giving of a notice under subsection (1) in the case of a person who is in New Zealand is—
(a) To require the
processing of any application or other matter in
relation to the named individual by an immigration officer that is
currently
underway to be suspended, notwithstanding any other requirement of this
Act; and
(b) To require any matter under this Act in relation to the named individual that is proceeding in an Authority (other than the Refugee Status Appeals Authority), the Board, the Tribunal, the District Court, or the High Court to be suspended, notwithstanding anything in this Act or any other enactment or rule of law; and
(c) To require the detention of the named individual by a member of the Police under subsection (5).
(4) On receipt of a notice under subsection (1) in respect of a person who is in New Zealand, the chief executive must—
(a) Immediately ensure that the processing of any application or other matter in relation to the named individual by an immigration officer that is currently underway is stopped; and
(b) Not accept for processing any application or other matter in relation to the named individual (other than applications or matters relating to refugee status); and
(c) If appropriate, immediately advise an Authority, the Board, the Tribunal, the District Court, or the High Court, in the prescribed manner, that any proceedings or matter under this Act in relation to the named individual are to be stopped in accordance with subsection (2); and
(d) Arrange for a
member of the Police to as soon as is practicable
personally serve on the person concerned a copy of the notice, along
with written information stating—
(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.
114H Rights of person in respect of whom
security risk certificate
given and relied on—
(1) A person on whom a Ministerial notice is served under
section
114G(4)(d) or who receives notification under section 114G(2)(d) may,
under section
114I, seek a review by the Inspector-General of Intelligence and
Security of
the decision of the Director of Security to make the security risk
certificate.
(2) A person who seeks a review under section 114I may—
(a) Be represented, whether by counsel or otherwise, in his or her dealings with the Inspector-General; and
(b) Have access, to the extent provided by the Privacy Act 1993, to any information about the person other than the classified security information; and
(c) Make written submissions to the Inspector-General about the matter, whether or not the person also wishes to be heard under section 19(4) of the Inspector-General of Intelligence and Security Act 1996 (as applied by section 114I(6) of this Act).
(3) No action may be taken to remove or deport the person on whom a notice served under section 114G(4)(d) remains in force unless and until section 114K applies in respect of the person.
(4) No review proceedings may be brought in any court in respect of the certificate or the Director's decision to make the certificate.
114I Review of certificate—
(1) A person on whom a Ministerial notice is served under
section
114G(4)(d) may, within 5 days of its service, apply in the prescribed
manner for a
review of the decision to make the security risk certificate upon which
the notice is
based.
(2) A person to whom a Ministerial notice is notified under section 114G(2)(d) may, within 28 days of the notification, apply in the prescribed manner for a review of the decision to make the security risk certificate upon which the notice is based.
(3) The review is to be conducted by the Inspector-General of Intelligence and Security with all reasonable speed and diligence.
(4) The function of the Inspector-General on a review is to determine whether—
(a) The information that led to the making of the certificate included information that was properly regarded as classified security information; and
(b) That
information is credible, having regard to the source or
sources of the information and its nature, and is relevant to any
security criterion;
and
(c) When a relevant
security criterion is applied to the person in
light of that information, the person in question is properly covered
by that
criterion—
and thus whether the certificate was properly made or not.
(5) In carrying out
a review, the Inspector-General may take into
account any relevant information that does not itself meet the
definition of
classified security information.
(6) For the purposes of a review under this section—
(a) The
Inspector-General has all the powers conferred on him or her by
the Inspector-General of Intelligence and Security Act 1996; and
(b) Sections 13, 19 (except subsections (1)(b) and (2)), 20, 21, 22, 23, 24, 26, 28, and 29 of that Act, with any necessary modifications, apply to the review; and
(c) The chief executive of the Department of Labour must provide the Inspector-General with any file relating to the appellant, and any other relevant information, that is held by the chief executive.
(7) For the purposes of a review under this section, the chief executive of the Department of Labour must, as soon as practicable after finding out that the review is lodged, notify to the Inspector-General the name and contact details of an officer of the Department of Labour who may accept service on behalf of the chief executive of notices and matters relating to the review.
114J Result of review—
(1) If on a review under section 114I the Inspector-General
decides
that the security risk certificate was properly made, the consequences
set out in section
114K apply following notification of the decision to the person who
sought
the review.
(2) If the Inspector-General decides that the certificate was not properly made, the person who sought the review must be released from custody immediately, and normal immigration processes must resume in accordance with section 114L following notification of the decision to the person who sought the review.
(3) As soon as possible after reaching a decision on the review, the Inspector-General must notify the decision—
(a) To the person who sought the review, by way of personal service in the case of a person in New Zealand; and
(b) To the Minister; and
(c) By personal service to the chief executive of the Department of Labour or to such other officer of the Department of Labour as the chief executive has notified to the Director-General [sic ? Inspector-General] under section 114I(7) as a person who can accept service on behalf of the chief executive; and
(d) To the Director of Security.
(4) The decision of the Inspector-General must be accompanied by reasons, except to the extent that the giving of reasons would itself be likely to prejudice the interests that this Part seeks to protect in relation to the classified security information.
(5) The Inspector-General may make recommendations in relation to the payment of costs or expenses of the person who has sought the review.
114K Effect of confirmation of certificate,
or failure to seek review—
Where—
(a) A security risk
certificate has been confirmed under section
114J(1); or
(b) The certificate
is confirmed to the extent that no review has been
applied for under section 114I within 5 days (or 28 days, in the case
of a person
who is not in New Zealand) after the serving of a Ministerial notice
under
section 114G(2)(d) or (4)(d),—
(2) In making a final decision under subsection (1) the Minister may seek information from other sources and may consider matters other than the contents of the certificate.
(3) On receipt of a direction from the Minister under subsection (1) to rely on the confirmed certificate, the chief executive must ensure that—
(a) Where the person's case was before the Tribunal, an Authority, the Board, the District Court, or High Court before the certificate was made, the relevant body is immediately notified in the prescribed manner of the Inspector-General's determination or the failure to seek review, so that it can dismiss the matter in reliance on this section; or
(b) In any other case, an appropriate decision is made in reliance on the relevant security criterion as soon as practicable.
(4) In either event, the chief executive must ensure that—
(a) Any visa or permit that the person still holds is cancelled or revoked, without further authority than this section, and in such case the cancellation or revocation takes effect immediately and without any right of appeal or review; and
(b) If a removal order or deportation order is not already in existence, an appropriate person who may make such an order makes the relevant order immediately without further authority than this section, and the person is removed or deported, unless protected from removal or deportation under section 114Q or section 129X; and
(c) In the case of a person who is protected from removal or deportation by section 129X, the person is released from custody and is given an appropriate temporary permit.
(5) On receipt of the appropriate notification under subsection (3)(a) by the Tribunal, Authority, Board, District Court, or High Court considering the matter, the proceedings in question immediately lapse, and are to be treated as having been dismissed.
(6) Where this section applies, the person who is the subject of the certificate has no further right of appeal or review under this Act.
(7) The Minister is not obliged to give reasons for his or her decision to give a direction under this section, and section 23 of the Official Information Act 1982 does not apply in respect of the decision.
114L Resumption of normal immigration
processes where certificate not confirmed
on review, or certificate or Ministerial notice withdrawn—
(1) This section applies in respect of a person named in a
Ministerial
notice given under section 114G if—
(a) The Inspector-General has given notice under section 114J that the certificate was not properly made; or
(b) The certificate is withdrawn under section 114M; or
(c) The Ministerial notice is withdrawn under section 114N, or the Minister decides under that section that the relevant security criterion should not be applied to the person in question, or decides under section 114N to revoke his or her decision to rely on the confirmed certificate; or
(d) The Minister fails to make a final decision in respect of the certificate within the period of 3 working days referred to in section 114K(1).
(2) Where this section applies, the chief executive must ensure that—
(a) The person is released from custody immediately; and
(b) Any immigration processing or appeal that was stopped in reliance on section 114G immediately recommences; and
(c) The person is advised, if any application or other matter had not been accepted for processing in reliance on section 114G(4)(b), that the application or matter will now be accepted for processing; and
(d) Where the person's case was before the Tribunal, an Authority, the Board, the District Court, or High Court before the certificate was made, the relevant body is immediately notified in the prescribed manner of the failure to confirm the certificate or the withdrawal of the certificate or Ministerial notice or other relevant Ministerial decision, so that it can resume consideration of the matter that was before it.
(3) Where any
proceedings have lapsed under section 114K(5) by reason of notification
under section 114K(3)(a) of the Minister's decision to
rely on a confirmed security risk certificate,—
(a) Those proceedings will nevertheless be treated as not having lapsed if notification of a revocation of that decision is received by the relevant Tribunal, Authority, the Board, or Court under subsection (2)(d) of this section; and
(b) Those
proceedings continue accordingly from the time of
notification of the revocation, with any time limits relating to the
proceedings extended
by the period of any lapse under section 114K(5).
(4) Where any immigration processing or appeal recommences under subsection (2)(b), or commences as a result of advice given under subsection (2)(c), the officer or body concerned is not to take into account the fact that the provisions of this Part had been applied to the person.
114M Withdrawal of security risk
certificate by Director—
(1) Nothing in this Part prevents the Director from withdrawing
a
certificate in relation to any person at any time by notifying the
Minister
accordingly.
(2) If the Minister has already relied on the certificate, the Minister must immediately inform the chief executive of the Department of Labour of the withdrawal.
(3) If the Director withdraws a certificate, section 114L then applies.
114N Minister may withdraw notice, or
decline to use certificate—
(1) Nothing in this Part prevents the Minister from—
(a) Withdrawing a notice given under section 114G at any time by notifying the chief executive of the Department of Labour accordingly; or
(b) Where a security risk certificate has been confirmed by the Inspector-General, deciding nevertheless that the relevant security criterion should not be applied to the person in question, and notifying the chief executive accordingly; or
(c) Revoking a decision under section 114K to rely on the confirmed certificate, and notifying the chief executive accordingly.
(2) On any notification to the chief executive under subsection (1), section 114L then applies.
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.
114P Appeal on point of law from decision
of Inspector-General—
(1) If the person named in a security risk certificate that is
confirmed by the Inspector-General under section 114J is dissatisfied
with the decision
of the Inspector-General as being erroneous in point of law, the person
may,
with the leave of the Court of Appeal, appeal to the Court of Appeal.
(2) Any such appeal must be brought—
(a) In the case of a person who is in New Zealand at the time of notification, within 3 working days of being notified of the Inspector-General's decision under section 114J(3)(a):
(b) In the case of a person who is not in New Zealand at the time of notification, within 28 days of being notified of the Inspector-General's decision.
(3) The Court of Appeal may, at any time on or before determining the appeal, or determining whether or not to grant leave to appeal, give such directions and make such orders as it thinks appropriate in the circumstances of the case.
(4) Subject to this section and this Part, section 66 of the Judicature Act 1908, and any rules of Court, apply with any necessary modifications to an appeal under this section as if it were an appeal from a determination of the High Court.
114Q Prohibition on removal or deportation
of refugee status claimant—
Despite anything in this Part, no person who is a refugee status
claimant may be removed or deported from New Zealand until the refugee
status of that
person has been finally determined under Part 6A.
114R Minister to report annually on cases
under this Part—
(1) The Minister must prepare in respect of each calendar year a
report
(including, if appropriate, a nil report) setting out—
(a) The number of cases in which the Minister makes a preliminary decision under section 114G to rely on a security risk certificate, and the relevant security criteria applicable to each such case; and
(b) The number of cases where a review of a security risk certificate is sought, and the number of cases in which a certificate is confirmed and the number of cases in which the Inspector-General finds that the certificate was not properly made; and
(c) The number of cases in which a security risk certificate is finally relied on and directions given under section 114K; and
(d) The number of cases in which section 114L applies, and the reasons in each case; and
(e) The number of people removed or deported from New Zealand in reliance on a security risk certificate.
(2) The Minister
must present a copy of the report to the House of
Representatives not later than 20 sitting days after the end of the
calendar year to
which the report relates.