Abstract:
The real threat to the life of the nation… comes not from terrorism but from laws such as
these. That is the true measure of what terrorism may achieve”. In the aftermath of September 11, courts have grappled with applying legislation that
permits serious intrusions on individual liberties on grounds of reasonable suspicion in
terrorist-related activity. In 2009 in Secretary of State for the Home Department v AF
(AF) the House of Lords was confronted with the issue of whether to accede to a request
by suspected terrorists for the disclosure to them of information that would allegedly
place the United Kingdom’s security at risk. The House found that notwithstanding the
risk that this would allegedly cause the innocent public, a person must be provided with
sufficient information to enable him or her to effectively challenge the allegations against
him or her in all cases. This article will consider the implications of the result in AF for the use of
classified information in the designation of terrorist entities in New Zealand. The
Terrorism Suppression Act 2002 (the TSA) will be interpreted against the New Zealand
Bill of Rights Act 1990 (the BORA) and in particular the right to natural justice fortified
in s 27.
It will be argued that a lacuna in the New Zealand legislation leaves room for the
reading down of relevant provisions of the TSA to include the requirement for a core,
irreducible minimum of disclosure that is sufficient to enable an affected person
effectively to challenge the allegations against him or her. In the course of this, latent
difficulties in the application of human rights law to anti-terrorism laws will arise. This
article will seek to strike a balance between an appropriate level of judicial deference to
executive policy and the over-claiming of national security. It will be demonstrated that it is better to err on the side of justice for the accused.
