Security Risk Certificate
Encyclopedia
A Security Risk Certificate is part of a New Zealand
legal process whereby a person suspected of being a security risk can be incarcerated prior to expulsion from the country. The Security Risk Certificate is based on unchallengeable “classified security information” (Immigration Act 1987 s 114B(1)). This is information that, in the opinion of the Director of the New Zealand Security Intelligence Service
“cannot be divulged to the individual in question or to other persons” (s 114B(1)) for various reasons, including those listed below.
(Immigration Act 1987 s 114I(3)). It is the role of the Inspector-General to determine whether the certificate was properly issued. This is not, properly speaking, an appeal or rehearing. In doing so, he or she has privileged access to classified security information, significant powers, and wide discretion as to how to use them (They are acting, however, in a quasi-judicial capacity; Zaoui v Attorney-General, unreported, High Court
, Auckland
, 19 December 2003, Williams J, CIV-2003-404-5872, para 28). The position of the Inspector-General was created in conjunction with the 1996 amendment to the New Zealand Security Intelligence Service Act.
The Inspector-General of Intelligence and Security, a retired High Court judge (Inspector-General of Intelligence and Security Act 1996, s 5(3)), is required to review the Security Risk Certificate, as provided under the Immigration Act (s 114D)
Although the Immigration Act allows both the Inspector-General and the Minister to consider information other than the classified information signified by the Security Risk Certificate, it does not explicitly provide for the fair and transparent procedures required by international human rights standards.
was incarcerated in a maximum security prison in solitary confinement on the strength of a report produced by the threat assessment unit of the Police.
On 20 March 2003 a Security Risk Certificate was issued by the Director of Security under Part 4A of the Immigration Act (Zaoui v Attorney-General, unreported, McGrath, Hammond and O’Regan JJ, Court of Appeal
, 17 September 2004, CA166/04, paragraph 5) that allows for “persons .... who pose a security risk … where necessary [to] be effectively and quickly detained and removed or deported from New Zealand” (s 114A(f)) on the basis of classified security information provided by the New Zealand Security Intelligence Service.
under the Terrorism Suppression Act 2002 (ss 20, 22). Under s 38 a marked departure occurs from New Zealand's open justice and adversarial process in procedures relating to such applications to challenge or to appeal such designation.
The Chief Justice
or nominee, on request by the Attorney-General, if satisfied that it is desirable to do so for the protection of the classified information received or hear the classified security information in the absence of the designated entity, and all barristers and solicitors representing that entity, and all members of the public (s 38(3)(b)). A summary of the information, excluding any summary of information that will itself likely to prejudice the interests set out in s 32(3), is then approved by the Court (s 38(4)(a)). A copy of that would then be given to the entity concerned (s 38(4)(b)).
Section 32(3) is denied if the disclosure would be likely:
While the specific offences of terrorist bombing and financing of terrorism offences do not rely on the designation of entities, the other prohibition offences do, unless the prosecution can rely upon knowledge/recklessness of the group carrying out a terrorist act. The other offence (relating to dealings with terrorists) is also affected by extraterritorial jurisdiction either as to the Actus reus
or to some aspect of connection with the offence or offenders.
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
legal process whereby a person suspected of being a security risk can be incarcerated prior to expulsion from the country. The Security Risk Certificate is based on unchallengeable “classified security information” (Immigration Act 1987 s 114B(1)). This is information that, in the opinion of the Director of the New Zealand Security Intelligence Service
New Zealand Security Intelligence Service
The New Zealand Security Intelligence Service is an intelligence agency of the New Zealand government.-Purpose:As a civilian organisation, the Security Intelligence Service takes no part in the enforcement of security...
“cannot be divulged to the individual in question or to other persons” (s 114B(1)) for various reasons, including those listed below.
Reasons for non-disclosure
Disclosure may, for example:- “lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the New Zealand Security Intelligence Service” (s 114B(1)(a)(i))
- be “about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the Service or of another intelligence and security agency” (s 114B(1)(a)(ii))
- have “been provided to the New Zealand Security Intelligence Service by the government of any other country or by an agency of such a government, and is information that cannot be disclosed by the Service because the government or agency by which that information has been provided will not consent to the disclosure” (s 114B(1)(a)(iii))
- “prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand” (s 114B(1)(b)(i)) or
- “prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation” (s 72 Immigration Act) (s 114B(1)(b)(ii)).
To the Inspector-General of Intelligence and Security
The sole avenue for appeal against the Certificate is the Inspector-General of Intelligence and SecurityInspector-General of Intelligence and Security (New Zealand)
The Inspector-General of Intelligence and Security is a New Zealand official who is responsible for supervising the country's two main intelligence agencies, theSecurity Intelligence Service and the Government Communications Security Bureau...
(Immigration Act 1987 s 114I(3)). It is the role of the Inspector-General to determine whether the certificate was properly issued. This is not, properly speaking, an appeal or rehearing. In doing so, he or she has privileged access to classified security information, significant powers, and wide discretion as to how to use them (They are acting, however, in a quasi-judicial capacity; Zaoui v Attorney-General, unreported, High Court
High Court of New Zealand
The High Court of New Zealand is a superior court of New Zealand. It was established in 1841 and known as the Supreme Court of New Zealand until 1980....
, Auckland
Auckland
The Auckland metropolitan area , in the North Island of New Zealand, is the largest and most populous urban area in the country with residents, percent of the country's population. Auckland also has the largest Polynesian population of any city in the world...
, 19 December 2003, Williams J, CIV-2003-404-5872, para 28). The position of the Inspector-General was created in conjunction with the 1996 amendment to the New Zealand Security Intelligence Service Act.
The Inspector-General of Intelligence and Security, a retired High Court judge (Inspector-General of Intelligence and Security Act 1996, s 5(3)), is required to review the Security Risk Certificate, as provided under the Immigration Act (s 114D)
Although the Immigration Act allows both the Inspector-General and the Minister to consider information other than the classified information signified by the Security Risk Certificate, it does not explicitly provide for the fair and transparent procedures required by international human rights standards.
To the Court of Appeal
There is a right of appeal to the Court of Appeal against a decision of the Inspector-General which confirms the certificate, on the ground that the decision is “erroneous in point of law” (Immigration Act 1987 s 114P(1)).Example
Most famously Algerian refugee Ahmed ZaouiAhmed Zaoui
Ahmed Zaoui is an Algerian member of the Islamic Salvation Front. He arrived in New Zealand on 4 December 2002 where he sought refugee status. Objections from the Security Intelligence Service were withdrawn in September 2007, allowing him to remain in New Zealand.-Pre 1991:Ahmed Zaoui was born as...
was incarcerated in a maximum security prison in solitary confinement on the strength of a report produced by the threat assessment unit of the Police.
On 20 March 2003 a Security Risk Certificate was issued by the Director of Security under Part 4A of the Immigration Act (Zaoui v Attorney-General, unreported, McGrath, Hammond and O’Regan JJ, Court of Appeal
Court of Appeal of New Zealand
The Court of Appeal of New Zealand, located in Wellington, is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court...
, 17 September 2004, CA166/04, paragraph 5) that allows for “persons .... who pose a security risk … where necessary [to] be effectively and quickly detained and removed or deported from New Zealand” (s 114A(f)) on the basis of classified security information provided by the New Zealand Security Intelligence Service.
Designation of an entity
A comparable procedure to the current system for review of a Security Risk Certificate is that provided for the designation of an entity as a terrorist entity or an associated entity of a terrorist by the Prime MinisterPrime Minister of New Zealand
The Prime Minister of New Zealand is New Zealand's head of government consequent on being the leader of the party or coalition with majority support in the Parliament of New Zealand...
under the Terrorism Suppression Act 2002 (ss 20, 22). Under s 38 a marked departure occurs from New Zealand's open justice and adversarial process in procedures relating to such applications to challenge or to appeal such designation.
The Chief Justice
Chief Justice of New Zealand
The Chief Justice of New Zealand is the head of the New Zealand judiciary, and presides over the Supreme Court of New Zealand. Before the establishment of the latter court in 2004 the Chief Justice was the presiding judge in the High Court of New Zealand and was also ex officio a member of the...
or nominee, on request by the Attorney-General, if satisfied that it is desirable to do so for the protection of the classified information received or hear the classified security information in the absence of the designated entity, and all barristers and solicitors representing that entity, and all members of the public (s 38(3)(b)). A summary of the information, excluding any summary of information that will itself likely to prejudice the interests set out in s 32(3), is then approved by the Court (s 38(4)(a)). A copy of that would then be given to the entity concerned (s 38(4)(b)).
Section 32(3) is denied if the disclosure would be likely:
- To prejudice the security or defence of New Zealand, or the international relations of the Government of New Zealand (s 32(3)(a)); or
- To prejudice the entrusting of information to the Government … by the Government of another country or international organization (s 32(3)(b)); or
- To prejudice making of law including the prevention, investigation and detection of offences and the right to a fair trial (s 32(3)(c)); or
- To endanger the safety of any person (s 32(3)(d)).
While the specific offences of terrorist bombing and financing of terrorism offences do not rely on the designation of entities, the other prohibition offences do, unless the prosecution can rely upon knowledge/recklessness of the group carrying out a terrorist act. The other offence (relating to dealings with terrorists) is also affected by extraterritorial jurisdiction either as to the Actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
or to some aspect of connection with the offence or offenders.