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Attempting to Justify the Unjustifiable
New Zealand’s Minister of Immigration, Lianne Dalziel, addresses the Immigration & Refugee Law Seminar, refering to the case of Ahmed Zaoui, 5th Nov:

Finally I thought that I should also mention Part 4A of the Immigration Act 1987, which was passed into law in 1999, and which has been the subject of considerable media scrutiny of late.

This is the first time that a Security Risk Certificate has been issued in accordance with the Act, so it can be expected that there will be some anxiety about how the process will work in practice.

I am disturbed about the extent of the media coverage that has been involved in the individual case and the campaign that is being mounted in the media against the provisions that enable the Director of Security to disclose ‘classified security information’ to the Minister of Immigration. No one should know his name, no one should have seen his photo and no one should have seen him appearing in court. Section 129T is clear and for good reason. Publicity may expose a claimant to risk, whether they are removed from New Zealand or not, and other family members or friends may be exposed to risk. On the other hand, publicity may be generated by the person him/herself in order to shore up a claim for status.


The Minister objects to the level of publicity the case has received, referring to section 129T of the immigration act

I would suggest that much of the interest in the case has resulted from the way in which the Government has handled the case, including the transfer from Papakura Police Station to Paremoremo with full police escort (including a helicopter overhead) and imprisoning Mr. Zaoui in solitary confinement in one of our toughest prisons for 10 months.

Given how Mr. Zaoui’s case has demonstrated the failings and problems inherent in the current system, I am grateful that the process was not hidden away from the NZ public (as the Minister may have preferred).

Part 4A acknowledges that there will be circumstances where classified security information will be relevant for immigration purposes. It also makes it clear that there are competing interests – the public interest and the individual interest.

The individual rights sought to be protected are contained, in a New Zealand context, within the NZ Bill of Rights Act. Under that Act there is provision for all government Bills to be vetted for compliance with the Act. The Bill that introduced Part 4A was vetted for compliance. It met the test.

The Minister of Immigration states that the Immigration Act was “vetted for compliance with the NZ Bill of Rights Act. However, the Bill of Rights Act states:

Section 4 [Other Enactments]
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of this enactment by reason only that the provision is inconsistent with any provision of this Bill of Rights.

Or simply: Any other legislation can override the Bill of Rights. I am not aware of exactly what the “vetting” process involves, but it is clearly not intended to make the legislation respect the rights described in the Bill.

From section 22 of the Bill of Rights reads almost as a list of rights the Mr. Zaoui has been denied:

“Everyone has the right not to be arbitrarily arrested or detained,

“Everyone who is charged with an offence
Shall be informed promptly and in detail of the nature and cause of the charge”

Section 25 [Fair Trial] is particularly relevant:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
(b) The right to be tried without undue delay:
(c) The right to be presumed innocent until proved guilty according to law:
(d) The right not to be compelled to be a witness or to confess guilt:
(e) The right to be present at the trial and to present a defence:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
(h) The right, if convicted of the offence, to appeal according to the law to a higher court against the conviction or against the sentence or against both.

Essentially the ability of ‘an independent person of high standing’, (in this case the Inspector General of Intelligence & Security), to review the Security Risk Certificate, including the classified security information upon which it is based, coupled with an appeal to the Court of Appeal on a point of law, are what protect the individual’s rights.

However the public interest lies in New Zealand’s ability to receive classified security information, and such information must remain confidential for good reason. If New Zealand does not treat the classified security information it receives as confidential, how much intelligence will we receive in the future? How will we be able to issue warnings to our citizens considering travelling abroad? How will we be able to become aware of the connections between people and groups that have implications for our own domestic security?

The Minister of Immigration speaks of it being in the “public interest” for NZ to be able to receive classified security information. She asks how much intelligence we will receive in the future if this information is not treated as confidential. The implication is that people advocating for the fair treatment of Mr. Zaoui, would like the information to be broadcast publicly. This is not true – Although I am curious as to what the information is, there is no reason for me to see it . There is however, every reason for Mr. Zaoui and his lawyers to see it - and no reason that they cannot keep the information confidential.

To follow the Ministers conclusion to it’s logical extent – we could also lock up New Zealand citizens based on overseas intelligence, without revealing any charges – in case revealing them jeopardises our relationship with the intelligence community! It is not a big step to convicting people of local crimes without revealing the charges or sources of accusation, so that undercover officers and informants can continue operating (in the public interest).

The New Zealand Security Intelligence Service does receive information on a strictly confidential basis, and it is vital to New Zealand’s security that it can continue to do so.

If anyone needs a reason for the use of classified security information in this way, we only need to think about September 11 or, for something closer to home, the Bali bombing. The only real counter to terrorism is intelligence. Terrorism is not like conventional war – it is underground, it is long-term in its planning and its participants are not only not afraid to die, they expect to do so in the name of their cause.

The Minister refers to the events of September 11, and the Bali bombing as a justification for using classified security information. These two events were both a horrific failure on the part of the intelligence community. It is unlikely that these events were not detected because Intelligence organisations were unable to keep information classified. In referring to these two terrible tragedies, the Minister is appealing to our fear of the different and the unknown. These events may point to the need for reform of the Intelligence services worldwide, but they do not justify abandoning international Human Rights standards.

I have asserted that in this case the media have been used to mount a case in the ‘court of public opinion’, but that is not an appropriate jurisdiction, because only one side can be presented. For example, during the weekend when the RSAA decision was being edited for public release, (a delay and process that was
agreed by everyone), the Sunday Star Times reported that they had been ‘allowed exclusive access to [the] file through his defence team’. The media couldn’t even question an apparent inconsistency between the RSAA decision and comments attributed to the individual, because they didn’t have the RSAA decision

The Minister refers to media coverage of the case saying that case is being mounted in the court of public opinion. This is a distortion of the work activists are doing. The main thrust of argument is not whether or not if Mr. Zaoui is a security risk, but whether it is acceptable to treat anybody (genuine security risk or not) in the manner in which the Government has treated Mr. Zaoui. Although it is inevitable that discussion of the case will also involve discussing whether or not Mr. Zaoui actually is a security risk, the phrase most repeated is “freedom or fair trial” not “Zaoui is not a security risk”
The website I run is called FreeZaoui.org – but the qualifier “or give him a fair trial” is added.

The public have heard both sides of the discussion on whether it acceptable to treat an individual in this manner. It is the process that causes the most concern – and this leads to questioning whether the process that will determine whether Mr. Zaoui is a security risk is fair, trustworthy, and holds to Human Rights standards.

It is fair to say that some members of the public have become particularly anxious because of the length of time this has all taken. My preliminary decision to rely on the Security Risk Certificate was communicated to the individual in April this year. He appealed immediately to the Inspector-General, however, the matter was, with his consent deferred until after the RSAA decision was made.

I would be among the members of the public who are “anxious’ over the length of time Mr. Zaoui has been detained. However it is the way in which he has been imprisoned that is of most concern. The solitary confinement at Paremoremo, and the fact that he has still not been charged with any offence.

It was, therefore, only when he was approved refugee status that the matter proceeded to be addressed by the Inspector General. I have no objection to this process. However, I have been receiving letters blaming me for the length of time he has been detained.

These letters would probably be sent to her because she is the person in charge of the system that has imprisoned him for this length of time. She cannot distance herself from Mr. Zaoui’s treatment, because as Minister of Immigration, she is responsible for the refugee process. To suggest she is powerless over this process is simply ridiculous.

Yet he is still the subject of a security risk certificate – the only difference is that he now has refugee status. The publicity centres on the latter not the former, and I cannot say why he is subject to the security risk certificate, because that is based on classified security information. I am caught between a rock and a hard place. That is why I have expressed frustration at the legal proceedings that are causing delays.

The Minister expresses frustration at “delays” due to legal action by Mr. Zaoui’s lawyers. The main delay appears to be the wait for the RSAA hearing, which cannot be blamed on Mr. Zaoui’s lawyers. Given that Mr. Zaoui’s life may depend upon the outcome of the process here in NZ, It should be expected that every possible avenue be explored.

Part 4A of the Act did not envisage these delays. The Inspector General is required to conduct the review “with all reasonable speed and diligence”. However there have been lengthy delays. I accept the lawyers have the right to pursue all legal avenues on behalf of their client, afterall it is the first case to test the law that was written in 1999. But he remains the subject of the Security Risk certificate – so I cannot sit back and accept criticism for the decision to detain him, when the matter could have been determined by now. I expressed my frustration during a Radio New Zealand interview a couple of weeks ago, and I want to make it clear that I did not intend to criticise or call in question the integrity of the legal team or their right to take the steps they have. But this is the consequence, which is not one envisaged by the Act, a matter that is reinforced by the fact that if the Inspector General upholds the certificate, I have to make my decision in three days.

Returning to the objectives of the special procedures in cases involving concerns, I believe that Mr Zaoui’s rights are protected by the appeal to the Inspector General who is a retired senior High Court judge and who has access to all the information including the classified security information and will hold a hearing. If he holds that the Security Risk Certificate was not properly made then the individual will be released.

In concluding the Minister states she believes Mr. Zaoui’s rights are protected by his appeal to the Inspector General. Many people and organisations in New Zealand and internationally would disagree - including Amnesty International, one of the most respected and trusted organisations in the world, who have launched a campaign calling for either a freedom or fair trial for Mr. Zaoui

Balanced against his individual rights remains the public interest. I personally believe that I speak for the majority of New Zealanders when I say that in this age of international terrorism, we have a right to know who is entering our country, where they are from and why they are here.


I agree with the Minister that we have a right to “know who is entering our country, where they are from and why they are here.” However, I don’t believe that we have the right to deprive these people of their basic Human Rights, incarcerate them in solitary confinement for 10 months, and then judge them without telling them what they are accused of. The questions can be answered within a proper framework of Human Rights, so it is inexcusable to operate outside of them for any reason – even in this “age of international terrorism”

And if we are to have access to international intelligence to support us in that task and to protect New Zealand’s domestic security, we have to accept that both the source and content of classified security information must be kept confidential.

It is a matter of balance. Whatever decision the Inspector General reaches, and whatever decision I reach, if the matter comes back to me, I am confident that New Zealanders will want to retain a mechanism that enables us to utilise classified security information for immigration purposes, while ensuring that individual rights are protected to the greatest extent possible.


Yes, we do want to “retain a mechanism that enables us to utilise classified security information for immigration purposes” – But we can do so completely within the framework of Human Rights. Basic rights as set down by the United Nations (and elsewhere) are not designed to shield real criminals from justice – but to make sure that a fair process is used to find out if they really are criminals.

It is, as with all immigration matters, a question of balance and overall I believe that the balance is right.

"If we do not believe in freedom of speech for those we despise, we do not believe in it at all." The same is true of Human Rights - To deny even one person of one right, is to undermine the whole framework. We cannot pick and chose which rights apply to who - All Human Rights apply to all people.

see www.freezaoui.org.nz
Posted by: Alex Davidson 2003-11-12
http://www.rantburg.com/poparticle.php?ID=21117