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Further : Te Kaha to Gulf

1 September 1999

Kia ora,

Further exchange of letters re the legality of the deployment of Te Kaha to the Gulf on the point of whether or not it breaches the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987.

18 August 1999

To :

Mr John Urlich

Peace Council of Aotearoa
New Zealand Incorporated P0 Box 703

Dear Mr Urlich

Further to my letter of 29 July 1999, I write in substantive response to your letter of 26 July 1999 regarding the decision of the Attorney-General under s 15 of the Nuclear Free Act.

You state in your letter that 5 15 of the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987 prevents the public from taking legal action against the Crown, denying the public the right to natural justice and the rule of law. Section 15 of the Act requires the consent of the Attorney-General before information can be laid against any person for an offence under the Act. The consent of the Attorney-General is required because in the case of a prosecution under this Act there may be special public interest factors that should be taken into account. In making a decision the Attorney-General acts independently; the section has no application to the concept of Crown immunity.

I trust the above clarifies the position for you.

Yours sincerely

Sir Douglas Graham KNZM


30 August 1999

To :

Sir Douglas Graham MP
Attorney General
Parliament Buildings
Dear Sir Douglas,

Legal position -Navy Frigate Te Kaha for Duty in the Gulf - Information sought under the Freedom of Information Act

Thank you for letter of explanation (18August) in response to our letter of the 27 July concerning Section 15 of the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act which prevents the public from taking legal action against the Crown. We would like to make the following comments.

1. The suggestion that the Attorney General acts independently is essentially theoretical rather than real, due to the fact that the Attorney General is appointed by the ruling political party. Consequently, the Attorney General has a conflict of interest; he/she will be disinclined to take an opposing view to that of his/her colleagues. Further, it is more likely the Attorney General has opinions that are politically orientated.

2. English Law proclaims that no man shall be a judge in his own cause. This maxim is violated under s15 of the Nuclear Free Act. As noted in our previous letter the power given to the Attorney General under Section 15 makes him/her a one-person constitutional court.

3. Any government bent on weakening the effect of this legislation would not want to see the removal of s15, which runs contrary to the rule of law. Moreover, in a democracy, such a policy is unacceptable as it denies due process and ministerial accountability, as the Minister is accountable only to him or her self.

4. You make reference to special public interest factors that have to be taken into account by the Attorney General. However, nowhere the Act is there a definition or meaning of what is a "special public interest." The only possibility where circumstance may suggest the need for special public interest is if NZ were in a state of war and martial law imposed, but the Act makes no reference to such an event. Notwithstanding, s15 is capable of being used to rejoin nuclear Military alliances as some Ministers have strongly advocated contrary to the spirit and letter of the Act.

The Peace Council opposed the inclusion of s15 before the legislation was passed. We trust therefore that in view of the forgoing arguments you will review this section of the Act before leaving office.

Yours sincerely

John Urlich, President
CC Members of Select Committee of MFAT and others

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