Editorial: Security risk law seriously flawed

At any time, the Government needs to act quickly and assertively when national security is threatened. In the post-September 11 world, there is even more reason for exercising the utmost caution. Qualms about this approach can be few and far between. Increasingly, however, there are reasons for nagging doubt about the framework that has underpinned the handling of Ahmed Zaoui, the Algerian who claimed refugee status when he arrived here last December.

Essentially, the Government's application of the immigration law has left Mr Zaoui, his legal representatives and the public in the dark over a host of issues. Questions abounded about Mr Zaoui when he arrived in Auckland on a false passport; clearly, he warranted detention as a suspected terrorist.

But it has never been explained why it was necessary, until Thursday, to keep him in solitary confinement at maximum security Paremoremo Prison, a policy which, according to a psychologist, led to mental problems.

Likewise, the Refugee Status Appeal Authority was not fully in the picture when it decided there was nothing to implicate Mr Zaoui in terrorist activities and granted him refugee status. Under the terms of the Immigration Act, it was denied access to what is presumably crucial classified Security Intelligence Service information.

Now a similar situation pertains to the issuing of a national security risk certificate on the basis of that secret information. The Inspector-General of Security and Intelligence, who is reviewing the validity of that certificate, has ruled that the allegations of the SIS will not be disclosed. In effect, Justice Laurie Greig has confirmed that people who have a security risk certificate issued against them have no right to know why.

While in Opposition, the Minister of Immigration objected to this dictate of the 1999 Immigration Amendment Act. The merit of Lianne Dalziel's concern is now apparent. As Mr Zaoui's lawyer suggests, his client must effectively contest the certificate with his hands tied behind his back.

There need be no great flight of fancy to see this as a breach of natural justice. Section 23 of the Bill of Rights Act states that "everyone who is arrested or who is detained under any enactment shall be informed at the time of their arrest or detention of the reason for it". The same act also provides that "everyone has the right not to be subjected to ... disproportionately severe treatment or punishment".

Justice Greig, however, has ruled that human rights cannot be taken into consideration in his review of the security risk certificate. Unsurprisingly, Mr Zaoui's lawyers say they will contest that ruling in the High Court. They say it breaches not only the Bill of Rights Act but international conventions to which New Zealand has signed up.

The public, of course, are as much in the dark as Mr Zaoui and his lawyers. It might be that the Government has handled his case in precisely the right way. It might well be that it has good reasons for its actions. But all we know is that Mr Zaoui has been held under extraordinarily harsh conditions, and that his case is proceeding in a manner that, seemingly, provides the potential for a denial of justice.

It is unsatisfactory that we know so little. It is unreasonable to have to settle for Government hints that Mr Zaoui is more than he purports to be. If national security must always be paramount, other interests should not be swept aside entirely. There must be a better way to serve the nation's security purposes, the public's right to know and the interests of justice.

The framework for issuing security risk certificates - Mr Zaoui is the first recipient - has been shown to have serious flaws. Doubts about these shortcomings will linger unless mechanisms are found to justify publicly use of a law that in other circumstances would be labelled draconian.