High Court Finds Inspector General of SIS Bias Against Zaoui
By Selwyn Manning – Scoop Co-Editor
Two High Court Judges have ruled that the Inspector General of Intelligence and Security (SIS) displayed apparent bias against Ahmed Zaoui and is disqualified from reviewing the refugee’s case.
Justices Salmon and Harrison said factors in the apparent bias case have led them to conclude that the inspector general, Laurie Greig, should stand aside from the review of Ahmed Zaoui’s case.
“We agree with Mr Harrison that this process requires adherence to the highest standards of impartiality, given Mr Zaoui’s complete reliance on the Inspector-General’s performance of his functions and the consequences for him of an adverse decision. It is also imperative that a process of this importance, both to Mr Zaoui and to our wider security interests, is not tainted by tenable, ongoing questions about the Inspector-General’s independence. These factors lead us to conclude that the Inspector-General should stand aside from the review process and that, because he is technically “not available”, the Governor-General should appoint someone else to act in his place for the duration.”
The Judgment follows a lengthy application presented to the High Court in auckland that questioned Greig’s ability to review a security risk certificate issued by the SIS against Ahmed Zaoui. It was argued by Zaoui’s legal team that Greig showed apparent bias towards Zaoui during an interview with Listener journalist Gorgon Campbell.
“Towards the conclusion of the interview, and immediately following the passage just discussed, the Inspector-General volunteered this observation: ‘…We certainly don’t want – I’m not talking as the I-G – I’m talking just personally as a New Zealander. We don’t want lots of people coming in on false passports that they’ve thrown down the loo on the plane and saying, “I’m a refugee, keep me here”. And perhaps having some association elsewhere. I understand that our passport is very desirable because it’s accepted almost without question all over the world. And if we lost that, then you and I would have great, much greater difficulty getting into America or Germany or wherever. So there’s a number of competing interests which the government has to take into account, I think. And I think we’ve got to take into account as well – I’m not suggesting we shouldn’t have refugees, because I think everybody should have refugees – but you’ve got to watch it.’
This comment in particular, along with a closeness of association between Greig and the SIS head Richard Woods, came under criticsm.
“Mr Harrison submitted that the Inspector-General’s statements are necessarily indicative of a mindset which if applied even subconsciously to Mr Zaoui would be seriously prejudicial to an independent and unbiased review. It is common ground that the Inspector-General was then aware that Mr Zaoui had entered New Zealand on a false passport; had attempted to damage or destroy it before presenting himself to immigration officials at Auckland International Airport; and had claimed refugee status or, to use the Inspector-General’s words, had effectively said “I’m a refugee, keep me here”".
Additionally, the Justices said the Inspector-General was aware from reading the SIS file in April and October 2003 that the Director believed Mr Zaoui had “some [terrorist] association elsewhere”.
The existence and nature of these communications "aggravate our concern about an appearance of bias" but for a different reason.
“What the Inspector-General said to Mr Sainsbury is not material, even if he knew that his choice of words did not convey the full picture and may lead to misunderstandings. What is relevant is that, first, the Inspector-General spoke directly to the Director about the videotape when the latter’s decision to issue a certificate against Mr Zaoui was subject to the Inspector-General’s current review to which the tape’s whereabouts or contents was or may be relevant and, second, he took steps which were meant to correct a misunderstanding but had the collateral effect, if not purpose, of portraying the SIS in a favourable light.
"This action was consistent with the Inspector-General’s reaction to the Director’s call that the media had implied the SIS had concealed something when in the Inspector-General’s experience it had always disclosed whatever he had requested.”
Justices Salmon and Harrison raised concern over Greig’s actions following questions by TVNZ’s Mark Sainsbury over whether the Inspector General had seen or was aware of a video tape on the SIS’s seven hour interrogation of Zaoui.
Greig had been found to be less that forthcoming on whether he was aware of the videotape. When the issue arose on TVNZ One News, the Director of the SIS Richard Woods telephoned Greig at home to express his concern. Greig then discussed the item with Sainsbury and later with one of the Prime Minister’s press secretaries, David Lewis, from which he took advise.
The Justice’s said: “This impression of closeness to the Director, with a converse lack of independence, is compounded by the Inspector-General’s agreement with the Prime Minister’s media adviser to speak with selected newspapers. His telephone call to the New Zealand Herald, resulting in its article on 10 December 2003, conformed with this strategy.
"It did not seem necessary or appropriate for the Inspector-General to go this far, lending force to Mr Harrison’s criticism that he was springing to the Director’s defence.
“On review of a certificate, the Inspector-General’s function is determinative. He must bring, and be seen to bring, an absolutely independent mind to the three specific steps in the review process, to determine “whether the certificate was properly made or not”.
The Inspector-General’s distance from the Director and others on all aspects of this inquiry is critical.
“The Inspector-General’s conduct on 8 and 9 December 2003 legitimately calls into question his independence from the Director, and in our judgment raise for the hypothetical, objective observer a real possibility that he may, again subconsciously, view the Director’s case with undue favour,” the Justices said.
“In our judgment the Inspector-General’s interview statements about refugees and his subsequent dealings with the Director and members of the media raise, when considered together, the real possibility of apparent bias against Mr Zaoui when undertaking his review of the Director’s decision: in the first instance of undue disfavour or partiality against Mr Zaoui, and in the second of undue favour or partiality towards the Director.
"An additional factor in this context, which would not be sufficient on its own, is the undesirability of the Inspector-General continuing to determine Mr Zaoui’s substantive application for review following the adverse interlocutory judgment delivered by Williams J on 19 December 2003."
In conclusion the Justices said: “In this respect we are satisfied that the allegation of apparent bias is made out.”
“We declare that the Inspector-General is disqualified from further engaging or participating in the conduct of Mr Zaoui’s application to review the security risk certificate issued by the Director on 20 March 2003.”