Susan Bathgate: Zaoui fate can't be decided in a courtroom

COMMENT

Catherine Field's revelations in the Herald about the evidence gathered by Continental judges and security services on Ahmed Zaoui highlight some interesting differences in role between Continental and New Zealand courts on issues of national security.

Continental systems of justice depend on investigations headed by judges. Here, judges have no role in the gathering of evidence but preside over the process of determining whether evidence gathered establishes a legal case. On matters of security risk, however, they have a limited role.

Oversight of the SIS investigation into Mr Mr Zaoui is required to be made by the Inspector-General of Security and Intelligence (until lately former High Court Justice Laurie Greig).

The courts can review the inspector-general's exercise of his powers but only on matters of process, not substance.

It is for this reason that the High Court judgments that have ruled in favour of Mr Mr Zaoui might contain more promise than can ultimately be delivered. The three decisions given so far have been greeted enthusiastically by Mr Zaoui's supporters as portents of eventual success.

But the Immigration Act requires that the decision of substance - whether Mr Zaoui poses sufficient security risk to justify his removal - be made by the Minister of Immigration, not the Judiciary.

The judges have, however, been able to define and refine the means by which the inspector-general should assess the information collected by the SIS.

The process he is required to undertake must include disclosure to Mr Zaoui of a summary of the allegations that formed the basis of the SIS certificate of risk and a consideration of relevant international human rights covenants.

The High Court also concluded that it, not the Court of Appeal, was the appropriate first port of call for any reviews of the inspector-general's preliminary rulings. Its latest decision disqualified Justice Greig from continuing to review the matter because of an apparent risk of bias on his part in favour of the SIS position and against Mr Zaoui.

This was an intervention that fell into the lap of Mr Zaoui's advisers, following the same kind of inexplicable decision on Justice Greig's part to engage with the media as that made by Lianne Dalziel immediately before her resignation as Minister of Immigration.

The misstep of agreeing to an interview with the Listener was compounded only days later by a series of contacts with a TV journalist, a press aide to the Prime Minister, the Herald and the Director of the SIS (Richard Woods).

It was in Justice Greig's apparent willingness to do Mr Woods' bidding by attempting to correct a misleading impression that arose from his contact with the TV reporter which was in large part responsible for his undoing. Mr Woods' contact with Justice Greig invited a passive response. Alternatively, a response of which Lady Bracknell would be proud.

It was the putting right that suggested to the court an anxiety to have the SIS portrayed in a more favourable light. This was regarded as compromising the appearance of neutrality and impartiality that the office of inspector-general should be seen to uphold.

The court was also concerned about a comment made to the Listener that could be interpreted as antagonistic to Mr Zaoui and his prospects for staying here. There was another problem, too, with a comment that suggested Justice Greig had been less than frank with Mr Zaoui's advisers.

The difficulty for Mr Zaoui with this turn of events lies with Justice Greig's replacement. The retired High Court Judge who either draws the short straw or is willing to take on the role must be acceptable to both major parties in Parliament. No liberals need apply.

He (there are no women with the necessary qualifications apart from the Governor-General) will likely insist on a number of conditions, the first of which will be the administrative and peer support apparently unavailable to Justice Greig.

There will be an elaborate and scrupulous attention to the appearance of impartiality and fairness, with no access whatsoever to his private views about security risks and refugees.

Worse for Mr Zaoui's advisers will be the seclusion from public view of the process of review.

All this should have the effect of reducing, if not eliminating, sources of complaint, reasons for delay and the accidents which have been a feature of the case to date.

Once the courts have dealt with the Government appeal on the issue - whether human-rights considerations must form part of the review - the way will be clear for the decision to be made.

This will not necessarily signal the end of the involvement of the courts in the matter but again they will be restricted to issues of process. Ensuring the correctness of the process is, however, no guarantee of the ultimate outcome.

* Susan Bathgate is a Wellington lawyer.

Herald Feature: Ahmed Zaoui, parliamentarian in prison

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