Editorial: A rod for the Government's own back

The country's new home-grown Supreme Court is plainly feeling its oats. In its second case, the application of Algerian refugee Ahmed Zaoui for a conditional release from prison, the court has overturned a decision of the Court of Appeal just as its did in its first, the Donna Awatere Huata case. Two strikes out of two against the Court of Appeal.

It is hard to know what this says about the calibre of the court from which the five supreme judges were so recently drawn. Perhaps it says Lower Courts might be inclined to conservatism in cases that are likely to be taken higher. But in the Zaoui case, the supreme bench has not only allowed him an unconventional bail hearing, it has taken the highly irregular step of deciding to hear the actual application itself.

Conventionally questions of bail are not considered except as a subsidiary issue to a criminal charge but Mr Zaoui, of course, has not been charged with a crime. He has been detained without trial for nearly two years under the national security provisions of the Immigration Act. In deciding to extend normal civil liberties to this case the court has probably gone further than Parliament intended when it strengthened the Immigration Act against terrorist infiltration.

Justice Paterson in the High Court, who first heard Zaoui's application, believed the Act did not permit him to grant bail, as did Justice McGrath in the Court of Appeal. The Supreme Court has overruled them. The High Court has an "inherent jurisdiction", it decided, to release on bail anyone detained under any act of Parliament unless the act expressly says otherwise. That power, say the judges, "is an ancient common law jurisdiction exercised by the superior courts of England" and became part of New Zealand law in 1840. "The power inheres in the court itself," the judgment continues, "as an independent common law jurisdiction."

This is the sort of language that makes governments nervous. The court is not declaring itself above or indifferent to Parliament but it is indicating that wherever legislation leaves room for interpretative dispute, it may put principles of common law on a par with Parliament's presumed legislative intention. Justices Paterson and McGrath, for example, had no doubt on reading the legislation that Parliament intended people detained under the national security provisions would have no right to apply for release on any conditions. But the Supreme Court has decided release of such people "is not wholly precluded under the act".

It is also prepared to invoke international law, such as the Refugee Convention, which New Zealand has adopted, to question acts of Parliament. The Refugee Convention insists that refugees do not have their movement restricted unnecessarily. The Government says national security makes Zaoui's confinement necessary. The Supreme Court says the reasons have to be given and tested in a court and it believes courts can make orders to protect sensitive information.

It finds the national security section of the Immigration Act seriously deficient, having regard to refugee's rights under the convention, because the section makes no allowance for a review of a detention no matter how long the person is in custody. It believes the act was intended to deal quickly with people detained as a suspected security risk. When someone has languished in custody for as long as Mr Zaoui detention can become arbitrary and an application for conditional release must be considered.

This is a Supreme Court that threatens to live up to its title. The Government that blithely established an indigenous court of final appeal begins to realise it has created a rod for its back. That will be no bad thing, though the power of judges might not be popular. The court that invokes sources of authority independent of the will of the electorate must exercise care. Ultimately the public must have confidence in the court's wisdom and justice, mindful that Parliament can always have the last word.