Editorial: Court ruling raises bar for the SIS

Opinion

Ahmed Zaoui's indefatigable defence lawyer Deborah Manning seemed uncharacteristically downcast last week at the Supreme Court's ruling in the case of a man regarded by some as a folk hero and by others as a threat to national security.

In the past two and a half years, the Zaoui team have become accustomed to winning the big points in court. But this time it did not go all their way. The Supreme Court rejected their argument that the Inspector-General of Security, Justice Paul Neazor, should take human rights into account when assessing the security risk certificate issued against Mr Zaoui.

Justice Neazor must focus on the secret evidence held by the Security Intelligence Service, the question of human rights is left to the Minister for Immigration.

What worries the Zaoui team is that in the present climate immigration generally and refugees in particular have proved to be potent polarising forces in politics and there is no way of knowing who will be the minister to make the decision, assuming it has to be made after the election.

Although these defence concerns are real enough, they disguise the significance of the court's decision which is effectively another victory for Mr Zaoui. Justice Neazor may not have to consider human rights, but the Supreme Court has set what seems an impossibly high standard to uphold the security certificate: The person in question must be thought on reasonable grounds to pose a serious threat to security; the threat must be based on objectively reasonable grounds and the threatened harm must be substantial.

In other words, the court is making it clear that the threat must be to New Zealand in the present rather than evidence about something that Mr Zaoui might have done elsewhere.

On top of this, the court has provided Mr Zaoui with a further fallback position. Until now it has been understood that the Minister for Immigration will decide his fate within three days of a decision to uphold the certificate. But now it seems there is no pressing time requirement, moreover Mr Zaoui will be entitled to procedural protection meaning, presumably, yet more hearings.

So viewed dispassionately, Mr Zaoui's setback on human rights is more than offset by the fallback position.

However, the Zaoui case has raised a much larger question which urgently needs addressing, namely the glaring deficiencies in the Immigration Act's national security provisions, not least of which is the failure to live up to its promise of dealing quickly with people detained as suspected risks.

The Prime Minister has promised a review once the Zaoui case has run its course but unfortunately the Supreme Court's ruling leaves open the possibility that this may still be some time away.

What makes this especially frustrating is that, in a sense, the Zaoui argument is an artificial one. Although there is considerable emotional force in directing attention at the dreadful fate that might await him in his homeland, on any objective assessment the chances of him being returned to Algeria are slight.

It would fly in the face of every international convention to deport him to a country where he faces the threat of torture or arbitrary deprivation of his life. Until such a threat is removed there is no realistic possibility that a New Zealand Government would send him home.