Overall, the Immigration Bill extends the period that migrants can be held in detention by Police without charge or warrant, from the current 72 hours to 96 hours. Routinely, this will mean being held in police cells, even though the UN and NGO agencies have been pointing out to the NZ government for the best part of a decade the need for non-penal facilities for the assessing of migrants and asylum seekers. Several clauses do allow the NZIS to designate other premises as detention centres, but prisons are the only ones identified.
Immigration officers themselves will be able to detain people for up to four hours without a warrant. Clause 272 (e) allows detention for up to 96 hours of anyone suspected by an immigration officer or by a member of police of possibly constituting a threat or a risk to security.
At the very least, these clauses extend the power of the New Zealand police to hold people in detention without charge, pending checks on whether the suspects are liable, or not, for deportation. While 72 hours was previously possible, the general norm already seems to be shorter, and this calls into question the need for any extension to the 96 hours envisaged - for administrative convenience – under the Bill. Why is this necessary ? It does not seem to be required, with respect to criminal offences. In its November 2007 comparative study of detention practices ( called Charge or Release ) the British human rights organization Liberty concluded :
In New Zealand, persons arrested must be charged "promptly". There is no
fixed definition of "prompt" but case law on this question indicates that pre-
charge detention of more than 48 hours would not be considered "prompt".
In a welcome move, the Immigration Bill does enshrine various UN conventions – including the Convention Against Torture - in our domestic law. However, in my earlier post, I outlined how the Immigration Bill violates key provisions of that same UN Convention Against Torture – by, for instance requiring ( see clause 122b ) an asylum seeker to prove they would face a worse risk of torture if returned home, than would be usual in their country.
As written, clause 122 would allow New Zealand to return victims of mass torture and persecution, back into the hands of their torturers. Clause 132 allows for people to have their status as refugees or protected persons revoked, if the NZIS judges, in its wisdom, that circumstances have changed in their country enough to allow their safe return – or even, if a new NZIS officer happens to re-think an earlier decision made by a previous officer.
The even murkier aspect is whether New Zealand can arrange to return asylum seekers to a so called ' safe' third country – or on the basis of diplomatic assurances or promises that the person will not be tortured, or returned to where they would be tortured or persecution. The real trouble with ' diplomatic assurances' is that they are quite unenforceable - in a notorious case, Sweden returned two Egyptian asylum seekers back to Egypt, and the Swedes found out too late that Egypt's diplomatic promise not to torture the duo was not worth the paper it was written on.
Commonly, these diplomatic assurances entail the recipient countries ( Libya, Algeria et al) promising, with hand on heart, that they recognize the Convention Against Torture – even as Amnesty International and Human Rights Watch report on the extent of torture by security services.
On this point, clause 125 is the relevant part of the Immigration Bill. It creates an initial gateway decision by the immigration officer to consider a claim for refugee or protection status, based on whether the immigration officer feels that the applicant could find refuge in some other country. Moreover, clause 125 (2) (b) allows for the decision frame to include whether "relevant international agreements or agreement have, or could be lodged" for protection in another country. To my knowledge, New Zealand currently has no such agreements that would allow it to shuttle its asylum seekers elsewhere – so, this can only be an example of future proofing, a provision to allow the NZIS to pursue such agreements in future.
At it stands, the vagueness of clause 125 heightens the risk of return to torture, in violation of New Zealand's commitments under the UN Refugee Convention. At the very least, the issue of alternative countries of refuge and associated risks should be treated as part of the claim, and not entrusted to some desk officer as a reason to reject the claim at the outset. In addition, New Zealand should not be entertaining the prospect of diplomatic assurances and the bogus rationale they provide for offloading asylum seekers into situations of peril. The reality facing New Zealand is that fewer and fewer asylum seekers are getting here to claim protection - and the best international practice is headed towards the scrapping of diplomatic assurances, not the embracing of them.
In February 2008 for instance the European Court of Human Rights ( in a major case called Saadi vs Italy) stopped the deportation from Italy of one Nissam Saadi, back to his homeland in Tunisia. The deportation was refused, despite the fact that Italy had sought and got assurances from the Tunisian government that it did not practice torture, and voluntarily accepted all of the relevant UN conventions. The sceptical Court found instead that :
"The existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.
Diplomatic assurances, the Court went on, did not remove the obligation to examine whether such assurances in practice provided a sufficient guarantee that the applicant would be protected against the risk of the cruel and degrading treatments prohibited by the Convention. "The weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time."
Exactly. Yet judging by New Zealand's readiness to take at face value the European convictions against Ahmed Zaoui - convictions later found, when tested, to be quite irrelevant to his alleged risk to our national security – it is hard to see the NZIS vigorously adopting a stance of healthy scepticism towards the convenient agreements envisaged under clause 125. It would be far safer if clause 125(2) (b) in particular was dropped from the Bill entirely.
That's probably enough for now. One should also mention in passing though the very short timeframes that migrants have for gathering and filing the complex factual and humanitarian grounds for appeal against deportation. Or the unilateral ability of the Minister in clause 152 to deport people by Order in Council…and so on., and so on. .
On July 21, we will all get a clear idea of just how diligently the officials who advised the select committee have responded to the criticisms of the Bill voiced by the Privacy Commissioner, UNHCR, the Law Society, the Zaoui legal team and the dozens of other people and organisations that made submissions. It seems unlikely the Bill will be substantially revised – and if it isn't, it deserves to become an albatross around the neck of the Labour government.
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Clauses 250-252 of the Bill confer on Immigration Service officiazls officials the kind of powers that we normally concede – for good reason – only to police officers. All the NZIS officer will need is the belief that 'reasonable grounds' exist, and he can proceed to apprehend any person who is, or appears likely to be, in New Zealand unlawfully.
Nor are those powers restricted to land. An official can - without a warrant - enter and search any craft within New Zealand territorial waters, interview anyone, and identify anyone seated with them. Similarly the official can, without a warrant, enter and search any part of the foreshore, port, bay, harbour, lake, or river - or any port premises, wharfs or transit buildings, piers or structures attached to or extending from a shore or a bank.
Under clause 253, any immigration officer can enter any building or premises without a warrant – at any 'reasonable' time of day or night, unspecified – if they believe someone they may be wishing to serve with a deportation notice may be present. Once a potential deportee is located, the officer is them empowered to photograph, measure, and take finger, palm and foot prints of that person, and subject them to iris scans on suspicion that such a person could be liable for deportation, or is (255c) 'undertaking work or a course of study' that the person may not be entitled to.
In essence, immigration officers are being provided with a toolkit of powers that could be used for either genuine detection - or for the equivalent of dawn raids, with virtual impunity. The fact that reasonable belief – rather than a warrant – allows such intrusions leaves the door wide open to abuse. Throughout the Bill immigration officers are granted power to make sweeping unilateral judgments ( eg see clause 133) about the validity and the completeness of the information before them, and the bona fides of the individuals concerned – and can then proceed to cancel refugee and protection status, with far-reaching impact on migrants and their families.
The net cast by such search and entry provisions is wide. It can apply to those providing work, or accommodation, for suspects. Under clause 241 (3 people are required to provide information about someone who is, or may become liable for deportation, and information on their present or past whereabouts – and also about the occupiers past and present of premises where they may have worked or resided. Under the same clause, any employer or employee may be required to provide, or allow the official to copy " any record or information held by or reasonably available to that person," and no one can be held legally liable ( clause 241 (4) in civil or criminal proceedings for what happens as the result of the use or disclosure of such confidential information.
Once issued by an immigration officer with a relevant certificate, the list of organizations that must provide address information to the NZIS include : the Ministry of Social Development, Housing New Zealand, education providers, telecommunication service providers, internet service providers, postal providers, insurance companies, banks, local government bodies, real estate agents, employers and former employers.
Clause 270 of the Bill empowers the chief executive of the Immigration Service to disclose categories of personal information by agreement with any overseas agency, body or person engaged in border security, or in processing international passengers, or in detecting or investigating immigration 'or other' offences.
That ' or other offences' phrase makes this a potentially wide provision, well beyond immigration purposes. Under it, a variety of agencies can enter into an agreement with NZIS to receive such information as - the Bill stipulates - airline passenger and crew lists, the past travel movements of specified people and any previous convictions they may have.
Under clause 270(e) this agency or person agency can also acquire "the general history of specified people, which may include associates and networks." Also to be made available to foreign agencies : information about the 'modus operandi' of specified people, their currency transactions, intelligence assessments and reports, details of mail interceptions, personal identification details, and details of known or suspected involvement of people in illicit activities.
Got that? On request, personal details that go beyond the suspected individual and based on grounds nothing stronger than suspicion about them – can be provided to a range of security and law enforcement agencies overseas, and to those involved with the processing of international passengers. Note that the CEO of the NZIS can supply ' intelligence assessments and reports' on request to any of those overseas agencies - even though the classified reports would be denied on grounds of national security to the person in New Zealand most affected by them !
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Few Labour voters may realise the full extent of what the Clark government has in mind - or has allowed to get out of hand - with its rewrite of the 1987 Immigration Act. To date, the parties on the centre right (National, Act, United Future) have also shown little interest in the Immigration Bill's sweeping extensions of state power, while the anti-immigrant crew within New Zealand First must be thinking all their Christmasses have come at once.
Under this legislation, it is proposed that immigration officials should be given powers of entry to business premises and private homes and enhanced powers of search, seizure and detention without warrant. The CEOs of any government department or agency will be able to decree information as classified, and thus put it beyond direct access or query by the people most affected by it. Access even to a summary of what is being alleged will be conditional, and at the state's discretion.
Even if allowed, a summary of allegations can be made as skeletal and un-informative as the state decides. Firstly, any such summary will be only of the allegations arising from the information, and need not summarise the information itself. Secondly, clause 216 of the Bill says the summary will not be required to list any of the documents, or detail any of their contents or contain anything that might identify the source of any of the allegations. Good luck with mounting a viable defence - against whatever it is the state thinks you have done - under such conditions.
There's more. The Bill empowers Immigration officials to compel people to provide biometric information without the Bill containing firm guidelines or procedures for the use, retention, security, accuracy, storage and sharing of such data. There is no overt statement about the relation of the new Bill to the Privacy Act, or support for its protections on fair handling of personal information and bodily integity. There is only the kind of vague mention found at clause 92, which opens up more problems than it resolves - by saying ( incorrectly) that the Privacy Act gives immigration officers power to ' further deal' with the personal data they have collected and retained.
Clause 92 of the Bill also says that New Zealand citizens returning home can be compelled to have photographs taken of them - "subject to regulations" made under the Bill - in order to prove they are who their passports say they are. A close reading of the biometric information definition clause (at p 20 of the Bill) indicates these mandatory photographs need not be restricted to facial photographs - a concern that was raised by some of those who made submissions on the Bill. So much for bodily integrity.
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