New Zealand: Administrative Law: Zaoui v. Attorney General
![handle is hein.journals/commwlb32 and id is 154 raw text is: Judicial Decisions
NEW ZEALAND: ADMINISTRATIVE LAW
Zaoui v Attorney General
SC CIV 13/2004, [2005] 4 LRC 557
10-1I, 25 November 2004
Judiciary - High Court - Inherent jurisdiction of court - Bail - Whether bail
confined to detention on criminal charges - Whether bail available only in
matters already before court - Whether bail excluded by statute by implica-
tion - Relevant considerations - ss 1140(3), 128, 128B of the Immigration Act
1987 - Bail Act 2000.
Administrative law - Delegated legislation - Prescribed forms - Statute
permitting detention in penal institutions and other premises - Prescribed
form allowing only for detention in penal institution - Whether form ultra vires
- Whether form able to be read in conformity with statute - Whether power
capable of being exercised from time to time - ss 1140, 150 of the Immigration
Act 1987.
Administrative law - Ministerial decision - Power to issue warrant -
Whether capable of being exercised from time to time - Application to vary
warrant - Court having power to order the detention in premises considered
appropriate - s 43(6) of the District Courts Act 1947.
An Algerian national, Z, arrived in New Zealand in December 2002 and claimed refugee
status. The Director of Security issued a security risk certificate under s I 14D in Part 4 of
the Immigration Act 1987 and the minister made a preliminary decision to rely on the certif-
icate. Z was detained under a warrant issued under s 1140 of the Immigration Act, which
provided for detention in penal institutions or other premises. The prescribed form of
warrant, however, provided only for detention in a penal institution. When Z applied to the
Inspector General of Intelligence and Security for review of the certificate, the Inspector
General decided to postpone the review until after the appeal that Z had embarked upon
against the initial refusal of refugee status. The Refugee Status Appeals Authority upheld his
claim to refugee status and Z then embarked upon a number of legal challenges to the
process for the review of the security risk certificate.
These events eventually caused the resignation of the Inspector General and the
appointment of a new person. Once he had been in detention for over a year, Z applied to
the High Court for review of the decision to hold him in prison, on the ground that the
warrant was ultra vires the Act as it restricted the places in which detention could be
ordered; for habeas corpus; for bail; for variation of the warrant of commitment and for a
declaration that his detention or conditions of detention were in breach of the New
Zealand Bill of Rights Act 1990.
The High Court found that the warrant of commitment was not ultra vires the Act once
part of the warrant was severed; that the detention was not unlawful; that there was no
jurisdiction to grant bail and that there had been no breach of the Bill of Rights Act. Z appealed
to the Court of Appeal, which found by a majority that the warrant was valid and that bail
was not available, at least in this case. The Court of Appeal unanimously found that the initial
detention had not been arbitrary given the national security concerns that had given rise to
it. Detention could become arbitrary and unlawful if it became indefinite or permanent or](ViewImageLocal?handle=hein.journals/commwlb32&div=16&collection=&method=preview&ext=.png&size=3)
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New Zealand: Administrative Law: Zaoui v. Attorney General
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