A victory for us all

The Supreme Court judgement on Ahmed Zaoui's eligibility for bail again shows how the government is on the wrong side of civil liberties issues. The government's argument was essentially jurisdictional - that the relevant sections of the Immigration Act did not allow for bail, and so therefore Zaoui must rot in prison regardless of justice. The Supreme Court put paid to that in no uncertain terms, and in the process positioned itself as a defender of civil liberties and human rights against the encroachments of the executive.

The Court's decision relied not on the Bill of Rights Act, but on common law. The power to grant bail (or Habeas Corpus) is "an ancient common law jurisdiction" exercised by the New Zealand courts by virtue of the importation of English common law in 1840, and which "inheres in the Court itself". It can therefore be granted in any matter:

Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention.

(My emphasis).

The rest of the judgement debated the question of whether the appropriate section of the Immigration Act directly excluded the Court from granting bail; the Court concluded that it did not. They also concluded that the Court had the power to alter the conditions of imprisonment, allowing Zaoui to be held in the Mangere Refugee Center rather than a prison.

Whether Ahmed Zaoui is ultimately granted bail will be decided on the facts of his case. What this judgement establishes is that he may be. And that is an important victory not just for Zaoui, but for us all. It reaffirms a vital protection for our civil liberties, and an extremely wide-ranging power to review not just the legality, but the necessity of detention.