Immigration Bill

20 July 2007

Attorney-General

1. On 12 June 2007 we provided you with preliminary advice as to whether the Immigration Bill (PCO 7520/13) is consistent with the New Zealand Bill of Rights Act 1990 ("the Bill of Rights Act"). We have now had an opportunity to view version 20 (PCO 7520/20) of the Bill. We understand that the Bill was considered by the Cabinet Legislation Committee at its meeting on Thursday, 14 June 2007 and approved for introduction.

2. Our view is that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion, we considered potential issues of inconsistency with sections 8, 9, 14, 19(1), 21, 22, 23(1), 25(c), and 27(1) and (2) of that Act.

3. The following summary provides you with:

4. This summary is followed by a fuller analysis which discusses each of the issues raised under the Bill of Rights Act noting, where relevant, the justificatory material in each instance.

SUMMARY OF THE BILL OF RIGHTS ACT ISSUES

5. The primary purpose of the Bill is to establish a stronger, more flexible, and enduring legislative foundation for New Zealand’s immigration system that enables governments to facilitate the entry and stay of the people New Zealand wants and needs, and to manage immigration risks in a fair and balanced way.

6. The Bill seeks to achieve the objective of managing immigration, through balancing the rights of the individual and the national interest, by:

7. A number of measures proposed by the Bill raise issues of consistency with the Bill of Rights Act.

8. Clauses 120(1) and 121(1) provide for a person to be recognised as protected where there are substantial grounds for believing [the person] would personally be subjected to torture, or arbitrary death or cruel treatment respectively. The omission of the phrase "in danger of" may be perceived as providing a lesser form of protection than that provided for in sections 8 and 9 of the Bill of Rights Act (rights not to be deprived of life and subjected to torture).

9. However, the proposed wording is likely to be "read down" by the courts, meaning that they would interpret the provisions as including the words "in danger of" by implication, so as not to derogate from New Zealand’s international obligations. While it would have been preferable to include the words "in danger of" in the Bill as introduced, we consider that the provisions can be read in a manner that is not inconsistent with sections 8 and 9.

10. The Bill contains a number of clauses that make a distinction on the ground of nationality. We note that these clauses raise an issue of prima facie inconsistency with section 19(1) of the Bill of Rights Act (right to be free from discrimination) but are justifiable in terms of section 5 of that Act.

11. We have also examined whether several clauses that make a distinction on the ground of age raise an issue under the right to freedom from discrimination. Although most of these clauses do not appear to disadvantage anyone, clause 49 does raise an issue of prima facie inconsistency under section 19(1). Given the protective nature of youth age provisions, particularly in the immigration context, and given New Zealand’s obligations under the United Nations Convention on the Rights of the Child, we consider that this clause appears to be justified.

12. We have further examined some clauses which make a distinction on the ground of marital status. Most of these clauses, again, do not appear to disadvantage anyone and therefore do not raise an issue under section 19(1). Clause 49 does potentially create a disadvantage but the resulting discrimination can be justified.

13. The Bill contains several provisions that require persons to allow the collection of biometric information, or to provide or produce information, records and other documents for inspection.

14. We have considered whether these provisions raise any issues of inconsistency with the right to protection from unreasonable search and seizure (section 21 of the Bill of Rights Act). We have concluded that the requirements in the relevant clauses constitute a search but cannot be considered to be unreasonable. We note, among other things, that the expectations of privacy of persons engaged in international travel and immigration are lower than those of persons within a country in general. Furthermore the objectives underlying these requirements (managing risk to the border) appear to justify the intrusion of privacy that they entail.

15. For the same reasons, we consider that the other search powers in the Bill – entitling immigration officers and members of the police to enter and search a craft, a border place, or any other premises (with a view of effecting a deportation) – appear to be reasonable within the meaning of section 21.

16. We have examined whether the provisions requiring the provision of biometric and other information also raise an issue under the right to freedom of expression. We note that biometric information as defined in the Bill is insufficiently expressive in nature to attract the protection of section 14. As for the other information that needs to be provided, we note that the nature of this information will be prescribed by regulations or be determined by the immigration officer. These regulations must be drafted in a manner that is consistent with the Bill of Rights Act. Similarly, in the exercise of the power to compel the provision of biometric and other information, immigration officers must act consistently with that Act.

17. The Bill contains several provisions that provide for the power to arrest and detain certain persons under various conditions. As detention under the Bill is not for the purposes of bringing criminal charges or prosecutions, there is a risk that detention may be arbitrary and, therefore, inconsistent with section 22 (right not to be arbitrarily arrested or detained). The provisions also raise issues under section 23 (rights of persons arrested or detained).

18. Most of the arrest and detention provisions confer discretionary powers on police officers, immigration officers, determination officers and the courts. We have concluded that the provisions are either: consistent with sections 22 and 23; justified in a free and democratic society; or, having regard to section 6 of the Bill of Rights Act, can be read consistently with the rights and freedoms it affirms.

19. The Bill provides for special procedures for the use of classified information in decision-making processes and proceedings referred to in the Bill. This includes the introduction of special advocates and raises issues under sections 23(1)(b) (right to consult and instruct a lawyer) and 27(1) (right to natural justice) We have concluded that the special procedures strike a justifiable balance between protecting highly sensitive information and protecting a person’s right to know the nature and substance of evidence to be used against them.

20. The Bill contains several reverse onus and strict liability offences, thereby raising an issue of prima facie inconsistency under section 25(c) (right to be presumed innocent until proved guilty). We have concluded that these offences are, on balance, justifiable under section 5. In reaching this conclusion we have considered the objectives of the offence provisions, and particularly the penalty levels. Although some of the penalties are not at the lower end of the scale and allow for the imposition of a sentence of imprisonment, we consider them acceptable in view of the seriousness of the offences concerned and the importance of the objective at which these offences are aimed.

21. The Bill empowers the responsible Minister and immigration officers to make a great number of decisions with respect to immigrants, such as the granting of visas, entry permission, removal or deportation and other decisions. Several provisions provide that the decision-maker does not have to give reasons for some of the decisions they make, and other provisions prohibit appeals against various decisions made pursuant to the Bill.

22. Some provisions prevent review of decisions made under the Bill. We are of the view that the particular decisions in question do not amount to a "determination" in respect of a person's "rights, obligations, or interests protected or recognised by law" within the meaning of section 27(2). For that reason, the right to apply for judicial review is not engaged in respect to those decisions.

23. On balance, we have concluded that the Bill does not appear to be inconsistent with the Bill of Rights Act.

ISSUES OF CONSISTENCY WITH THE BILL OF RIGHTS ACT

24. The Bill has been drafted to ensure it is consistent with the Bill of Rights Act and New Zealand’s existing obligations under international human rights treaties, including the Refugee Convention, the Convention against Torture (CAT), and the International Covenant on Civil and Political Rights (ICCPR).

25. There are many features of the new immigration regime which positively reflect these rights and obligations. For instance, there must be independent judicial oversight of any detention beyond 96 hours with regular reviews of such detention (clauses 278 and 279), and those who have been recognised as ‘protected persons’ will not be subject to either deportation or detention (clause 272(2)).

26. We have nonetheless identified some features which appear to raise issues of inconsistency with the rights and freedoms protected in the Bill of Rights Act. However, where an issue arises a provision may nevertheless be consistent with the Bill of Rights Act if it can be considered a "reasonable limit" that is "justifiable" in terms of section 5 of that Act. The section 5 inquiry is essentially two-fold: whether the provision serves an important and significant objective; and whether there is a rational and proportionate connection between the provision and that objective.[1]

Sections 8 and 9 – Rights not to be deprived of life and subjected to torture (non-refoulement)

27. Sections 8 and 9 of the Bill of Rights Act provide for the right not to be deprived of life and subjected to torture or cruel treatment respectively.

28. It has been held both nationally[2] and internationally[3] that the prohibition on torture and cruel treatment includes a prohibition on deporting a person to a country where there are substantial grounds to believe that that person would be in danger of being subjected to torture or to cruel, inhuman or degrading treatment or punishment. The Courts have approached the question of expulsion to arbitrary death as being no different from the question of expulsion to torture and cruel treatment or punishment: that is, the right to be protected from arbitrary death also gives rise to protection from expulsion to face the risk of arbitrary death.

29. This reflects international obligations, as set out in Article 3(1) of CAT[4] and Article 7 of the ICCPR and clauses 120 and 121 of the Bill respectively refer to these conventions in relation to claims for recognition as a "protected person" under the Bill. But in attempting to codify these obligations, clauses 120(1) and 121(1) respectively provide for a person to be recognised as protected where there are substantial grounds for believing the person would be subjected to torture, arbitrary death or cruel treatment. The omission of the phrase "in danger of", which is included in Article 3(1) of CAT, may be perceived as providing a lesser form of protection than that provided for in CAT and the ICCPR.

30. However, we believe that the wording proposed in clauses 120(1) and 121(1) is likely to be "read down" by the courts, meaning that they would interpret the provisions as including the words "in danger of" by implication, so as not to derogate from New Zealand’s international obligations. We therefore believe that in line with section 6 of the Bill of Rights Act the provisions can be read in a manner that is not inconsistent with sections 8 and 9 of that Act. However, to avoid doubt, the Ministry’s strong preference is for the words "in danger of" to be inserted into the provision during the select committee process.

Section 19(1) – Right to be free from discrimination

31. Section 19(1) of the Bill of Rights Act provides:

32. Section 21 of the Human Rights Act 1993 specifies the prohibited grounds of discrimination. These grounds include, inter alia, "ethnic or national origins, which includes nationality or citizenship" and "age" (which means any age of 16 years old and over).

33. In our view, taking into account the various domestic and overseas judicial pronouncements as to the meaning of discrimination, the key questions in assessing whether discrimination under section 19 exists are:

34. If these questions are answered in the affirmative, we consider that the legislation gives rise to a prima facie issue of "discrimination" under section 19(1) of the Bill of Rights Act. Where this is the case, the legislation falls to be justified under section 5 of that Act.

Nationality

35. Under clause 8 of the Bill, a non-citizen may only travel to New Zealand if he or she holds a visa granted under this Bill or is subject to a visa waiver. Clause 57 provides that the requirement to hold a visa permitting travel to New Zealand may be waived in relation to any class of persons, by regulations or by the Minister. Any such waiver (or the suspension thereof) may classify persons to whom the waiver applies by reference, inter alia, to the nationality of these persons (clause 57(3)(a)).

36. Clause 75(1) of the Bill provides that a person intending to travel to and be in New Zealand only as a transit passenger must, before proceeding to New Zealand, apply for and obtain a transit visa unless the person falls within a category of persons who are subject to a transit visa waiver. Under clause 75(2)(a), persons may be classified as being eligible for a transit visa waiver by reference to, inter alia, their nationality.

37. Under clause 45(1), the Minister or an immigration officer may impose – as a precondition to the grant of a visa – the requirement that a bond be paid. The visa holder risks forfeiture of the bond under clause 354 if he or she breaches the conditions of the visa. Clause 353 regulates the levels of imposed bonds. Different levels of bond may be authorised in respect of different categories of person, including categories of person determined by having regard to the different regions of the world where their countries of origin or nationality are situated and the costs of travel or repatriation to such regions or countries (clause 353(3)).

38. Not obtaining a (transit) visa waiver or having to pay a higher level of bond due to one’s nationality and irrespective of individual merit clearly involves a disadvantage. Clauses 57(3)(a), 75(2)(a) and 353(3) therefore give rise to a prima facie issue of inconsistency under section 19(1) of the Bill of Rights Act. However, in our opinion the discrimination involved can be justified under section 5 of that Act.

39. The Department of Labour has advised that (transit) visas and bonds manage risk to the border and that nationality is one proxy for risk in the immigration context. Immigration risk most commonly refers to the propensity to overstay, work illegally, attempt irregular entry and use false documents, fraudulent refugee status claims, criminal offending, and drug importation. Nationals at particular risk of doing these things are identified by statistical evidence. Definite trends are identified over a period of years before any policy is set. As regards visas other than transit visas, potential visa waivers are often instigated through bilateral relationships with a particular country.

40. We have also taken into account that:

Age

41. The Bill contains several clauses with respect to children. Some of these clauses refer to the age of the child, specifically clauses 49 (Applications by minors), 132 (Child claimants to have responsible adult to represent them), 294 (Form of custody of persons detained without warrant overnight), 295 (Form of custody of persons detained under warrant of commitment), and 338 (Children to have responsible adult to represent their interests).

42. Under clause 49 the visa application of a person under the age of 18 years who is not married or in a civil union can be declined if the Minister or immigration officer is not satisfied that any parent or guardian consents to the making of the application. This distinction on the ground of age may create a disadvantage for persons of 16 and 17 years old who are not married or in a civil union.

43. We consider that this clause is designed to protect children, and as such complies with New Zealand’s obligations under the United Nations Convention on the Rights of the Child (CRC) to give primary consideration to the best interests of children (defined by the CRC as being persons below the age of 18 years).

44. There is a risk that persons under the age of 18 who are not married or in a civil union may be open to exploitation by third parties in the immigration context. It is a reasonable and protective measure to have the safeguard of a check on parental consent. In addition, the decision to decline an application under clause 49 is discretionary – it remains open to the Minister or immigration officer to grant an application in deserving situations despite not being satisfied the person has parental consent. We have therefore concluded that the limitation on the right to be free from discrimination resulting from clause 49 appears to be justified.

45. Regarding the other provisions in the Bill making a distinction based on age, we note that under the clauses 132 and 338 dependent children (within the meaning of this Bill) have to be represented by a responsible adult in the matters described in clause 338(2), i.e.

46. Clauses 294 and 295 contain specific provisions for the detention of children. They enable the detention of children under the age of 18 in any residence or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or if the person is not married or in a civil union, any other premises agreed to by an immigration officer and the person’s parent or guardian; or (in the case of detention under a warrant) premises approved by the chief executive under section 293 of the Bill.

47. Although the requirements set out in clauses 132, 338, 294 and 295 are not applied to persons 18 years or older, we do not consider that this distinction creates a disadvantage for any age group that would entail a breach of section 19(1) of the Bill of Rights Act. Given the coercive nature of the immigration regime, these provisions merely act as a safeguard to ensure that the maturity and vulnerability of young persons are protected. Persons 18 years or older are not in a comparable position to their younger counterparts. They are less likely to suffer from the same sort of difficulties that, for instance, would warrant the provision of an adult representative.

48. Clause 338(4) sets out the requirements that a person must satisfy in order to be nominated as a responsible adult. One of these is that the person must be 20 years of age or more. We consider that, although it may be argued that this provision gives rise to disadvantage as persons aged 18 and 19 years cannot be nominated as a responsible adult, this provision is not inconsistent with the Bill of Rights Act. In reaching this view, we note that persons under 20 years of age are unlikely to process the requisite expertise, skills, and maturity to adequately represent a minor in the proceedings specified in paragraph 45 above.

Marital status

49. Many of the provisions relating to (dependent) children under the age of 18 years old refer to them being not married or in a civil union. No reference is being made to being in a de facto relationship which arguably could be interpreted as giving rise to an issue of discrimination under section 19(1) of the Bill of Rights Act on the ground of marital status.

50. With respect to clauses 132, 295, 294 and 338, we consider that the resulting distinction based on marital status does not give rise to disadvantage entailing a breach of section 19(1).

51. Clause 49 might be disadvantageous as a visa application by a 16 or 17 year old in a de facto relationship may be declined if the Minister or immigration officer is not satisfied that any parent or guardian consents to the making of the application. Applications may not be declined if the 16 or 17 year old is married or in a civil union.

52. Given the evidential and practical difficulties in the immigration context of establishing whether a de facto relationship does actually exist, we have concluded that the distinction on the ground of marital status in clause 49 is not inconsistent with the Bill of Rights Act.

Section 21 – Right to be free from unreasonable search and seizure

53. Section 21 of the Bill of Rights Act provides the right to be secure against unreasonable search and seizure. There are two limbs to the section 21 right. First, section 21 is applicable only in respect of those activities that constitute a "search or seizure". Second, where certain actions do constitute a search or seizure, section 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.

54. The Bill contains several clauses that require persons to provide biometric information, including but not limited to clauses 50 (Biometric information may be required from visa applicant) and 88 (Collection of biometric information from proposed arrivals). For the purposes of the Bill, biometric information is defined as meaning a photograph, fingerprints, and/or an iris scan of a person and includes a record, whether physical or electronic, of any of these things.

55. The Bill also contains several clauses that require agencies, bodies, organisations or persons to provide or produce records, documents and other information, including but not limited to clauses 86 (Responsibilities of carrier and person in charge of commercial craft before it departs from another country to travel to New Zealand), 110 (Obligations on persons leaving New Zealand), 243 (Powers of entry and inspection relating to records of accommodation providers) and 247 (Power of immigration officer to require information and documents where liability for deportation suspected).

56. Because the obligations to allow the collection of biometric information involve compulsory access to information, including personal information, they impinge upon reasonable expectations of privacy which members of the public would have in relation to that information. The same, at least potentially, also applies to the obligations to provide or produce records, documents and other information. For that reason, these obligations constitute a search or seizure for the purposes of section 21 of the Bill of Rights Act. We have therefore considered whether these searches or seizures are ‘reasonable’.

Biometric information

57. We note that if a person does not allow the collection of biometric information, his or her application for a visa or entry permission may be refused (clauses 50 or 98). Similarly, if a person who is proposing to board a craft for the purposes of travelling to New Zealand refuses to allow the collection of biometric information, the chief executive may decide that the person may not board the craft for the purpose of travelling to New Zealand; or may board the craft only if he or she complies with specified conditions (clause 88).

58. Further, clause 256 enables an immigration officer to apply to a District Court Judge for an order requiring a person to allow the collection of biometric information if the person has refused to allow the collection of this information. When examining this provision, we assume that there may be adverse consequences where a person refuses or fails to allow the collection of biometric information (or a photograph (see clause 92)). For example, refusal or failure might possibly lead to a prosecution for the offence of obstruction or failing to meet requirements (clause 307).

59. According to the Explanatory note, the collection and use of biometric information will enable New Zealand to use new technology to help improve the integrity of the immigration system. The proposals will help the government to better manage risk (such as the propensity to overstay, work illegally, attempt irregular entry and use false documents, fraudulent refugee status claims, criminal offending, and drug importation). The biometrics proposals will also help facilitate immigration processing for the vast majority of travellers.

60. Where biometric information is required, this information will help establish a record of a person’s identity; verify a person’s identity and assist in decision-making under this Bill (clause 29).

61. We also note that it is well recognised that persons who cross international borders, can legitimately be required to sacrifice aspects of their privacy in return for the ability to travel.[6] In other words, at and around the time of travel, particularly in an immigration context, expectations of privacy are lower.

62. Overall, we have concluded that the provisions with respect to the collection and use of biometric information are reasonable for the purposes of section 21 of the Bill of Rights Act.

Records, documents and other information

Inspection of documents by the Tribunal

63. Schedule 2, clause 11 of the Bill, among other things, enables the Tribunal to inspect and examine documents, empowers the Tribunal to compel any person to produce for examination any papers, documents, records or things in that person’s control. A failure to comply is an offence and could lead to a fine not exceeding $5,000 (clause 318(5)). A requirement to produce documents is likely to be considered a search for the purposes of section 21, especially where failure to provide the documents results in possible sanction.[7]

64. The Canadian courts have taken the view that a proper balance between the interests of the individual and the state can be struck if the requirement to produce documents is subject to appropriate terms and conditions, including those designed to protect the interests of the person compelled to provide the documents[8]

65. We have concluded that this provision appears to be consistent with the right to be secure against unreasonable search and seizure. In reaching this conclusion we note that the ability to require documents is consistent with the determination and appellate functions of the Tribunal and that the power must be exercised reasonably. Also, the power to demand the production of documents is less of an intrusion into the expectation of privacy than a power of entry.[9]

Provision of records, documents and other information to immigration officials

66. The Bill contains a number of other offence provisions – such as clauses 307 (Obstruction or failing to meet requirements) and 312 (Offences relating to carriers and persons in charge of craft) – that create an extra degree of compulsion to provide records, documents and other information to specified immigration officials. Moreover, the powers of search and inspection may be exercised without a warrant.

67. The presence of these provisions needs to be balanced against the fact that the powers are primarily granted to allow immigration officials to detect immigration fraud or misrepresentation, identify persons failing to comply with immigration-related obligations (in particular the conditions of their visa), and locate persons who are or may be liable for deportation.

68. Most of the search and seizure powers may only be exercised under certain conditions (such as ‘where an officer has good cause to suspect that […]’, or ‘where an immigration officer believes on reasonable grounds that […]’). Further, the powers of entry may only be exercised at any reasonable time during which the premises are open for business whether by day or by night (see, for example, clause 243(4)).

69. For these reasons, as well as those discussed with respect to biometric information (see paragraphs 57 to 62 above), we consider that the powers to provide or produce records, documents and other information to specified immigration officials are reasonable for the purposes of section 21 of the Bill of Rights Act.

Other search and seizure powers

70. The Bill contains a number of other search powers, such as the power of entry and search of crafts (clause 251), at border places (clause 252) and relating to deportation (clause 253).

71. The purpose of these entry and search powers is to enable the relevant authorities to locate persons who are or may be liable for deportation. We consider that these powers are ‘reasonable’ and, therefore, do not raise an issue under section 21 of the Bill of Rights Act. In reaching this conclusion, we note that the safeguards associated with these powers are the same as those relating to the power to compel production of records, documents and other information.

Section 14 – Right to freedom of expression

72. Section 14 of the Bill of Rights Act protects the right to freedom of expression, which includes the freedom to seek, receive, and impart information and opinions of any kind and in any form.

73. We have examined whether the powers to compel the collection, production or provision of biometric information, records, documents and information, as described above, infringe the right to freedom of expression.

74. We note, taking into account the various domestic and overseas judicial pronouncements on the issue, a two-step inquiry has been adopted to determine whether an individual’s freedom of expression has been infringed. The first involves a determination of whether the individual’s activity falls within the freedom of expression. The second step is to determine whether the purpose or effect of the impugned government action is to restrict that freedom.[10]

75. An important component of the first step is that the communication in question must attempt to express an idea or meaning.[11] We consider that this component is not satisfied in relation to biometric information: that is biometric information is not sufficiently expressive in nature to engage section 14.

76. As regards the clauses requiring the provision of ‘other information’, we note that, under clauses 358 and 360, regulations will prescribe which information or documents must be provided. It will depend on the actual wording of these regulations whether the information to be provided under the relevant clauses will be sufficiently expressive to be covered by section 14. These regulations have to be drafted in a manner that is consistent with the Bill of Rights Act, otherwise they may be open to challenge for being ultra vires.

Sections 22 and 23 – Right not to be arbitrarily detained and the rights of arrested or detained persons

77. Section 22 of the Bill of Rights Act provides that "everyone has the right not to be arbitrarily arrested or detained."

78. The Courts have said that a detention is arbitrary if it is "capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures."[12] For this reason, the question of arbitrariness should not hinge solely on whether a detention is unlawful, but should be interpreted more broadly to include elements of purpose and proportionality.

79. This means, amongst other things, that an initially valid power to detain may be abused by unwarranted delays in the treatment of the person detained. An initially lawful detention may become arbitrary where there has been an unwarranted delay in commencing the procedure for which a detention was conducted.[13]

80. The Bill contains numerous provisions authorising the detention of various categories of individuals for different periods of time and for different purposes. As the detention will not be for the purposes of bringing criminal charges or prosecutions, we consider that such provisions raise issues under section 22 and also, where applicable, section 23 (rights of persons arrested or detained). These issues are discussed below.

Non-Police Arrest and Detention (clause 274)

81. The Bill authorises immigration officers to detain individuals for up to 4 hours (clause 274). Whilst it is desirable for arrest and detention to be carried out by trained police officers in normal circumstances, we consider that this power to detain is appropriate in the immigration context.[14] If the period of four hours is exceeded, the person must be released. We do not consider that these provisions are inconsistent with section 22 of the Bill of Rights Act.

82. We need to emphasise, however, that section 23 of the Bill of Rights Act is engaged and, therefore, persons detained under this provision are entitled to exercise the relevant rights protected under that section. We note that clause 274 will come into effect on a date fixed by Order in Council and expect that this will provide an opportunity to ensure that officers, inter alia, receive appropriate training in their responsibilities under section 23 and, more generally, the Bill of Rights Act.

Arrest, detention and turnaround of persons not granted entry permission (clause 105)

83. Clause 105 provides for the arrest and detention of those who have arrived in New Zealand, but who have not passed through immigration control. We consider that there is sufficient need to be able to detain in such circumstances. The entry of persons into New Zealand in such circumstances would be unlawful, and permitting free movement of such persons before their status had been decided would lead to chaos. The detention of individuals under this provision is not inconsistent with section 22 of the Bill of Rights Act.

Initial Period of Detention without Warrant (clause 275)

84. Clause 275 of the Bill provides for an initial period of detention without warrant of 96 hours in order to:

85. We have examined whether the different aspects of this power (i.e. detention without the prospect of charge, and detention without warrant for 96 hours) raise issues under section 22 of the Bill of Rights Act. The issue of detaining someone for reasons of national or international security is dealt with separately (and more substantively) below.

Detention without prospect of charge

86. With respect to the first aspect of this power (detention without the prospect of charge), we acknowledge that there is a strong possibility that a person facing deportation would not voluntarily place him or herself on the first available craft or before a warrant of commitment hearing. It is also likely that a person would seek to evade further detection in the event that they are not detained pending the establishment of identity. We therefore conclude that the purposes of arrest and detention outlined in clause 275 are reasonable and therefore could not be interpreted as authorising "arbitrary detentions". However, we would again reiterate that we consider relevant aspects of section 23 of the Bill of Rights Act to be engaged in respect of arrest and detention under this provision.

Detention Time Limits

87. As noted above, clause 275 provides for an initial period of detention without warrant of 96 hours. This is an increase from the Immigration Act 1987, which permitted an initial period of detention of either 48 or 72 hours. We have examined the purpose of this extension in order to evaluate consistency with section 22 of the Bill of Rights Act.

88. The Department of Labour have advised that, since the terrorist attacks of 11 September 2001, "the administrative requirements for facilitating departures have become more complex".[15] The Department adduces such factors as: obtaining airline clearances/approvals and travel documents; obtaining police clearances and arranging escorts; and flight availability.

89. We accept that such administrative problems are more likely to occur in the prevailing international climate and have concluded that the increase in the period of detention before deportation to a maximum of 96 hours is necessary and not inconsistent with the Bill of Rights Act. We would again stress that we assess 96 hours to be the upper limit of any such detention and that there is an obligation to proceed expeditiously with deportation.

90. However, arrest and detention is also permitted under clause 275 for reasons that are not for the immediate purpose of deportation. Clause 275(2)(d) is discussed when we consider national security issues more generally below. Clause 275(2)(c) allows for the detention of a person in order to ascertain that person’s identity. Clause 275(2)(e) would appear to permit detention for 96 hours in order to bring a person before a warrant of commitment hearing.

91. We have analysed the purpose of these provisions and whether the possibility of detention for 96 hours in such circumstances is consistent with section 22. We accept that the provisions can be read in line with section 6 of the Bill of Rights Act in a manner consistent with the right not to be arbitrarily detained.

92. We note, however, that it should not be assumed that 96 hours is the period which all such detentions should last for. Clause 275(3) makes clear that such detention can only be for as long as necessary to achieve the purpose of the detention. Therefore, where someone is detained by virtue of clauses 275(2)(c) and (e), we would expect that such detention may be considered arbitrary if there is undue delay in seeking to establish a person’s identity or dealing with the person under clause 279 or 280.[16]

Executing deportation where person is currently detained

93. Clause 298 also provides for detention for the purposes of deportation when a person is currently being detained as a result of a warrant of commitment or is being released from a term of imprisonment. In respect of detention for the purposes of deportation when the person is detained as a result of a warrant of commitment, no additional issues of inconsistency with section 22 of the Bill of Rights Act are raised. This is because the person will already be detained and will simply be delivered into a different form of custody for executing the final stages of deportation.

94. In respect of further detention for the purposes of deportation following a term of imprisonment, we have considered whether 96 hours is necessary considering that a person’s release may be known in advance. There may, however, be situations where a person’s release may not be expected – for example, because of release on parole. We consider that the 96 hour period required for normal deportation arrangements should apply here and, consequently, no issue of inconsistency with section 22 of the Bill of Rights Act arises.

Warrant of Commitment – Part 9 of the Bill

95. The Bill provides for the further detention of those detained under Part 9 (which establishes the detention and monitoring scheme) through the warrant of commitment process (clauses 278 to 289). This process is important because it provides for independent judicial oversight of the continued detention of those detained under Part 9. Without such independent judicial oversight, there is a strong possibility that any prolonged detention would be arbitrary.

96. An immigration officer may apply for a warrant of commitment if a person is detained under Part 9 and, before the expiry of this initial period of detention:

97. In essence, warrants of commitment are required in situations where there is a possibility that the time limits for initial detention under Part 9 will not be sufficient. The Bill contains provisions relating to: how a decision to issue a warrant of commitment should be made; release on conditions; and warrants of commitment for those who may constitute a risk to national or international security.

98. Clause 279 sets out how a judge should consider a warrant of commitment application in normal circumstances. In effect, the judge has two options: issue a warrant of commitment; or release on conditions[17]. Clause 279(2) provides scenarios where the judge may issue a warrant of commitment, with clause 279(3) providing for the judge to make a warrant of commitment if it is in the public interest to do so and the scenarios provided for in clause 279(2) do not apply. Clause 279(6) provides for situations where a judge cannot release the person on conditions, unless there are exceptional circumstances. These issues are discussed below.

Release on conditions

99. The Bill provides for release on conditions instead of secure detention. Clause 277 provides for a person to agree to residence and reporting arrangements as an alternative to arrest and detention. Clause 279 provides for a judge to order a person’s release on conditions as an alternative to secure detention by virtue of a warrant of commitment.

100. As noted above, there is justification for permitting the detention of the categories of individuals who may be detained. The alternative to secure detention provided by clause 277 is a positive development and should further ensure that secure detention is only used in situations where the circumstances warrant this. Release on conditions as an alternative to secure detention by virtue of a warrant of commitment is also a positive development and provides the judge with greater discretion to ensure that a person’s liberty should only be restricted or deprived to the extent necessary in respect of a particular case.

101. However, we note that the judge in a warrant of commitment hearing may only securely detain or release on conditions (clause 279(2)). The possibility of release without conditions is not explicitly mentioned. This is problematic as it may be argued that release on conditions still constitutes detention for the purposes of sections 22 and 23 of the Bill of Rights Act. Further, the removal of the discretion of the judge to order release without conditions undermines the concept of independent judicial oversight that we consider is critical to ensuring consistency with section 22.

102. In the leading case of Police v Smith and Herewini[18], it was accepted that the concept of detention cannot include every restraint on a person’s movement. Rather much would depend on whether the restraint amounted to a substantial intrusion on personal liberty. Similarly, in deciding what constituted a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights, the European Court held:

103. This approach has been followed in recent UK cases concerning the imposition of ‘control orders’, which also impose reporting and residence requirements on individuals where there is little or no prospect of criminal charges and trial.[20] As with the concept of arbitrary detention more generally, the question of whether conditional release amounts to detention is one of proportionality based on the particular facts of the case.

104. Clauses 282 and 283 set out the conditions that a judge may impose on a person. These provisions provide for a combination of the conditions to be imposed, although clause 279 would appear to suggest that at least one condition must be imposed. So clause 282(1)(a), which requires that a person reside at a particular address, in conjunction with stringent reporting conditions under clause 282(1)(b), may be regarded as providing a sufficient deprivation of a person’s liberty to the extent that it constitutes a detention. Conversely, the reporting arrangements specified as part of a condition of clause 282(1)(b) alone may be so minimal as to not be considered a substantial intrusion on a person’s liberty and therefore not constitute detention.

105. We have concluded that a judge would be able to use his or her discretion to provide for conditions that do not constitute a deprivation of liberty under the Bill of Rights Act. With this in mind, we consider that the failure to provide for an option of full release does not result in a breach of section 22 as the provision may be read compatibly in line with section 6 of that Act. We would expect that a judge would have regard to both the New Zealand and international case law when reaching a decision on whether a detention will be imposed and would refrain from imposing a detention that would be considered arbitrary .

Presumption of detention in certain circumstances – clause 279(6)

106. Clause 279(6) limits the judge’s discretion to release a person on conditions at a warrant of commitment hearing and provides for a very strong presumption of secure detention in the following instances:

107. We have mentioned the desirability of independent judicial oversight of detention under the Bill, not least because such detention is not for the purpose of charge or trial. We have also discussed that attempts to limit the discretion of judges to order release raise issues under section 22 of the Bill of Rights Act.

108. It appears that clauses 279(6)(a) and (b) are to designed to ensure that those whose identity (and therefore level of risk) is not known are not released into the community, unless under exceptional circumstances. We consider that a judge would most likely reach a decision that the release of such persons should not occur unless exceptional circumstances pertain. Consequently, a presumption of detention in these circumstances would not constitute arbitrary detention for the purposes of section 22.

109. Clause 279(6)(c) seeks to ensure that there is a presumption against conditionally releasing those who are obstructing their own deportation. In such circumstances, there is an increased likelihood of such persons not complying with conditions imposed by the judge and seeking to avoid further detection by the authorities. As with clauses 279(6)(a) and (b), we consider that a judge would most likely follow this line of reasoning, and therefore reach the same conclusion that this provision is not inconsistent with the right not to be arbitrarily detained.

Warrants of commitment beyond 6 and 12 months

110. The two "immigration" situations where detention is justified under the Bill of Rights Act are: where a person’s status has not been conclusively decided; or for the purposes of deportation. Even then, such detention should not be automatic and should be based on the particular facts of specific cases. Clauses 285 and 286 provide for scenarios where a warrant of commitment has been applied for which, if granted, would result in a person being detained for continuous periods of over 6 and 12 months respectively from the time that their appeal rights have been exhausted. We have examined whether these provisions are consistent with section 22 of the Bill of Rights Act.

Clause 285 - detention beyond 6 months

111. Clause 285(2) provides that a person may only be detained by virtue of consecutive warrants of commitment for longer than 6 months – unless there are "exceptional circumstances" that warrant the detention – if the judge is satisfied that ongoing detention is due, in full or in part, to some action or inaction of the person after he or she has been detained. If the judge is not so satisfied, the judge must order the person’s release.

112. This provision serves as a safeguard. A judge is not obliged to detain and may only do so under exceptional circumstances or because of the conduct of the person concerned. We would expect that, when considering whether "exceptional circumstances" apply, the judge would also consider Bill of Rights Act obligations in respect of protecting against arbitrary detention.

113. In respect of detaining because of the conduct of a person, the judge is not obliged to detain. The issue of conduct is relevant because a person may deliberately obstruct his or her deportation by, amongst other things, refusing to sign the necessary travel documents. It is appropriate for a judge to have the option to securely detain the person, should the judge consider this to be necessary in all the circumstances, and in consideration of the individual’s right not to be arbitrarily detained.

114. We have also considered the interaction between clauses 285(2) and 279(6)(c). Clause 279(6)(c) requires the judge to authorise secure detention unless there are "exceptional circumstances" that warrant release on conditions. A similar provision is found in section 60 of the current Immigration Act and has been the subject of recent judicial interpretation in the Yadegary case that is relevant for our purposes.[21]

115. Relying on the principles established in the Hardial Singh case[22], the Court in Yadegary held, inter alia, that in circumstances similar to those provided for by clauses 285(2) and 279(6)(c), and unless explicitly stated to the contrary by statute, the following criteria apply:

116. Although the Yadegary case is under appeal, if a Court were to follow the Hardial Singh principles in respect of clause 279(6)(c), it may decide that the phrase "exceptional circumstances" should be construed so as to exclude detention that would be unreasonable under those principles.[24]

117. Even if a Court did not follow these principles, our assessment is that the Court would consider that the provision for detention in these circumstances is still limited to detention pending removal: consequently, if substantial time had elapsed, it would be open to a Court to conclude that there is no longer a realistic prospect of removal and so the power is no longer engaged, without the need for exceptional circumstances to be established.

118. Despite the apparent limitation that clause 279(6) places on judicial discretion in respect of issuing warrants of commitment beyond 6 months, we nevertheless consider that a Court would be able to authorise release on conditions. This could occur if the Court considered that the continued detention would be unreasonable in line with the Hardial Singh principles or if the period of time that had elapsed was such that the power to detain was no longer engaged. With this in mind, we are of the view that there is sufficient judicial discretion to ensure that, in line with section 6 of the Bill of Rights Act, clause 285(2) may be read compatibly with the right not to be arbitrarily detained.

119. Clause 285(3) is clear that the judge should only release on conditions if he or she considers that there are exceptional circumstances. We reiterate that release on conditions may still be considered to be detention for the purposes of the Bill of Rights Act. In these circumstances, we would expect that a judge would use his or her discretion to ensure that the conditions imposed were such that they would not result in arbitrary detention for the purposes of section 22.

Clause 286 – detention beyond 12 months

120. Clause 286 applies when a person would be detained under consecutive warrants of commitment for a continued period of 12 months or more. This provision does not authorise further detention. Instead, it permits the judge to order that the person ceases the conduct that is holding up deportation and also allows the judge to order that the person undertake an action that facilitates their departure. The penalty for non-compliance with the judge’s instruction is contempt of court and imprisonment until the contempt ends.

121. The powers that clause 286(2) confers on the judge are discretionary. We would therefore expect that the judge would not use those powers in a manner that would be inconsistent with the Bill of Rights Act, particularly in relation to authorising detention that would be considered arbitrary under section 22.

Security Considerations

122. The Bill makes specific provision for those who have been detained because they are suspected to constitute a risk to security (which is defined to mean, amongst other matters, the defence of New Zealand; the protection of New Zealand from acts of espionage, sabotage and subversion as well as acts that impact adversely on New Zealand’s international reputation and economic well-being; the prevention against terrorism and organised crime; and the safety and stability of the international community (see clause 4)). For ease of reference, we have analysed such provisions separately from those relating to detention in normal circumstances.

123. We have examined these security provisions closely to ensure that any detention is for the purpose of deportation and is not simply because such individuals are considered to represent a risk to security per se.[25]

Initial Period of Detention

124. Under clause 275(2)(d), a person may be arrested without warrant and detained for up to 96 hours before obtaining a warrant of commitment, if there are reasonable grounds to suggest that that person constitutes a threat or risk to security. The detention must be for the purposes of either making a deportation order or deporting a person.

125. A person’s liability for deportation under this clause is based on the Minister certifying that that person constitutes a risk to security. Under clause 284(2), the Minister has 14 days to make this certification. As a result, a person could be detained up to 14 days while the decision as to whether or not that person is liable for deportation is being made. We have considered whether this possibility is inconsistent with section 22.

126. We have taken into consideration that in matters where it is considered that there is a risk to security, it would not be appropriate to release a person before the Minister has certified an individual. Further, detention beyond the initial 96 hour period is under the control of a judge via the warrant of commitment process (clause 280). Finally, the 14 day period that a Minister has to make such a certification does not automatically validate all detentions for this period. The Minister is still obliged to act consistently with the Bill of Rights Act to enable certification to take place as quickly and as expeditiously as possible.

127. We have therefore concluded that, although clause 275(2)(d) is prima facie inconsistent with section 22, it is nevertheless justifiable under section 5.

Decision on Warrant of Commitment and Release on Conditions

128. Clause 280 provides for a variation in the decision-making process at a warrant of commitment hearing where a threat or risk to security is involved. Although this process differs to the normal warrant of commitment process, we do not consider this to be unreasonable. In reaching this decision, we note that, despite the additional conditions contained in clause 283 (special conditions where threat or risk to security involved), the judge may still release a person on conditions to an extent that need not constitute detention for the purposes of section 22 and that the judge would exercise the discretion consistently with the Bill of Rights Act so as to avoid arbitrary detention.

Further Warrants of Commitment

129. We note that those who are the subject of an order under clause 152 (Deportation of person threatening security) are excluded from the safeguards contained in clause 285 or 286 (Decisions on warrant of commitment where detention beyond 6 or 12 months respectively). While it appears that the Bill does not provide a limit as to when such detention should cease, we would once again expect a judge to exercise his or her discretion at a warrant of commitment hearing as to whether a detention has become arbitrary and, if so, release that person on appropriate conditions. We therefore consider that these provisions can be read consistently with the Bill of Rights Act.

Section 25(c) – Right to be presumed innocent until proved guilty

130. Section 25(c) affirms the right to be presumed innocent until proved guilty. This means that an individual must not be convicted where reasonable doubt as to his or her guilt exists; therefore, the prosecution in criminal proceedings must prove, beyond reasonable doubt, that the accused is guilty. Strict liability and reverse onus offences give rise to an issue of inconsistency with section 25(c) because the accused is required to prove (on the balance of probabilities) the defence to escape liability; whereas, in other criminal proceedings an accused must merely raise a defence in an effort to create reasonable doubt. Where an accused is unable to prove the defence, then he or she could be convicted even though reasonable doubt exists as to his or her guilt.

131. The Bill contains the following reverse onus offences:

132. The Bill also contains several strict liability offences:

133. All of these clauses give rise to an issue under section 25(c) of the Bill of Rights Act because a defendant may be required to prove something to escape liability.

134. Clauses 307(a) and (b) sets out the offence of obstruction or failing to meet requirements. The Department of Labour has advised that the objective of this provision is to ensure that non-citizens in New Zealand comply with their immigration obligations including proving their right to be in New Zealand.

135. With respect to the offences committed by ‘third parties’ (i.e. the offences in clauses 312, 313 and 315) we note the analysis in the Immigration Act Review Background Paper. According to the Paper, the obligations for third parties in the immigration system, including employers, education providers and carriers, complement the obligations of non-citizens to have lawful entitlement to travel to, enter and stay in New Zealand and to comply with their visa and permit conditions.

136. Carrier obligations focus on their critical role in checking passengers and providing the Department of Labour with information that contributes to maintaining the security of the border.

137. Low unemployment and skills shortages have created an environment where there are incentives for overstayers to maintain their unlawful presence in New Zealand and for non-citizens to work without entitlement. The use of unlawful workers can deny opportunities for those who are able to work in New Zealand lawfully to gain employment and can undermine conditions for all workers. The use of unlawful workers also undermines the immigration system. The proposed offences relating to employers aim to prevent this.

138. There has been a considerable increase in the value of the education export sector and in the number of non-citizens entering New Zealand to study since the current Immigration Act 1987 was passed. Education providers play a key role in the sector by ensuring that non-citizens wanting to study are entitled to do so. Significant numbers of non-citizens studying without entitlement would impact on the government's ability to control the mix, distribution, and number of students. There would also be negative impacts on Crown revenue where those without entitlement accessed subsidised courses.

139. The proposed offence provisions in the Bill with respect to all these third parties seek to create incentives for them to comply with their obligations.

140. The Department of Labour has advised that clause 316 (Failure to maintain confidentiality in relation to refugee or protection matters) seeks to empower the Tribunal to do its job effectively, while clause 317 is designed to meet New Zealand’s international refugee and protection obligations.

141. In our view, these clauses have significant and important objectives. While the information that can exonerate the defendant is information that is particularly in the realm of the defendant, we have also closely examined the proportionality of the proposed penalties. We note that as a general principle, reverse onus and strict liability offences should carry penalties at the lower end of the scale. Although some of the fines cannot be considered to be at the lower end of the scale, they do not appear to be disproportionate. We note, however, that some of the reverse onus and strict liability offences in the Bill (i.e. those in clauses 312 and 317) provide for a term of imprisonment.

142. The Canadian Supreme Court has considered the question of imprisonment for public welfare regulatory offences and concluded that it can be justified as the stigma associated with imprisonment for such offences is less than that for truly criminal offences.[26] Nonetheless, the penalty must be clearly associated with the seriousness of the offence and the importance of the objective at which the offence is aimed. We consider that given the important and significant objectives of these offences, it may be possible to justify a term of imprisonment in the most serious cases.

143. For the reasons outlined above we consider that the objectives of these provisions justify the limitation on the presumption of innocence under section 25(c) of the Bill of Rights.

Section 27(1) – right to the observance of the principles of natural justice

144. Section 27(1) provides that: Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law. The Court of Appeal has stated that observance of the principles of natural justice is a flexible concept and is very much fact specific.[27]

145. Section 27(1) is engaged by those aspects of the Bill that deal with the use of classified information, as well as provisions that provide decision-makers with a discretion to provide reasons for some of the decisions they make, and prohibit appeals against various decisions made pursuant to the Bill.

The use of classified information

146. Special procedures are provided for the use of classified information in the various decision-making processes set out in the Bill. We accept that, in such circumstances, it may not be appropriate for reasons of security and the prevention of crime to release all or part of such information. Nevertheless, to ensure compliance with section 27(1), the Bill should provide the necessary mechanisms to allow the affected person to be informed of the nature of the information used in any decision that may be prejudicial to that person and, more importantly, allow for the decision to be challenged by way of appeal and for the veracity of the classified information to be challenged. We discuss these issues in greater detail below.

Provision of Information at Decision-making Stage

147. Clause 30 provides for classified information to be used as a basis for making certain decisions under the Bill. As the person concerned will not receive this information, this provision raises issues under section 27(1) of the Bill of Rights Act. We do not consider that sections 24 and 25 of that Act are engaged on the basis that they deal with criminal procedure and those who have been charged with an offence.

148. We note that clause 34 provides for a summary of the allegations to be made available in relation to an application for a visa, or a person’s liability for deportation. The affected person then has the opportunity to comment on this summary (clause 34(2)(b)), and the summary must be updated if the confidential information that was proposed to be used in the making of the decision is updated or withdrawn (clause 34(4)). Further, clause 35 provides for a person to be informed that classified information was used to make a decision that is or may be prejudicial to that person, the reasons for the decision, and rights relating to appeal.

149. It is noted that where an application for recognition as a refugee or a protected person involves confidential information, such applications are referred directly to the Tribunal. In relation to such claims, the Tribunal may exercise its jurisdiction as if it were an appeal. As discussed in paragraph 152 below, an applicant for refugee/protected person status will therefore be entitled to receive for his or her comment a summary of the allegations contained in the confidential information (clause 216 of the Bill).

150. Taking these factors into account, we consider that the Bill provides sufficient mechanisms to provide an affected person with information relating to a decision taken using classified information and, therefore, satisfies the requirements of section 27(1) of the Bill of Rights Act.

Appeal Procedures

151. The Bill provides for special procedures in relation to appeals to the Tribunal, the High Court, the Court of Appeal and the Supreme Court in respect of decisions taken using classified information and also provides for special procedures relating to judicial review (see clauses 214 to 239). The special procedures provide for, inter alia, access to and disclosure of relevant information and the use of special advocates. These provisions again raise issues under section 27(1) of the Bill of Rights Act.

Provision of Information

152. The Tribunal must be given access to classified information that was used to make a decision that is on appeal or was first raised in the course of an appeal (clause 215(1)) and, in the course of proceedings involving classified information, must approve a summary of the allegations arising from the classified information to provide to the appellant (clause 216). This summary must be updated if the confidential information that was proposed to be used in the course of the appeal is updated or withdrawn (clause 216(5)). Summaries need not automatically be provided in relation to appeals to the High Court, Court of Appeal or Supreme Court as such appeals can only be on points of law and, more importantly, the applicant should already be in receipt of the summary of allegations.

153. It is possible to argue that the failure to disclose all information constitutes a prima facie breach of section 27(1) of the Bill of Rights Act. However, we consider that the provision of summaries of information to the person adversely affected by a decision involving classified information strikes a rational and proportionate balance between protecting highly sensitive information and protecting a person’s right to know the nature and substance of evidence to be used against him or her. We therefore consider that this aspect of the process is justified.

Representation by Special Advocate

154. The Bill provides for the use of special advocates to represent the interests of an appellant in any proceeding involving classified information. The Bill also sets out rules relating to the appellant’s ability to communicate with the special advocate. Interference with a person’s ability to communicate with their lawyer raises issues under section 27(1) of Bill of Rights Act because it may affect procedural fairness at hearings involving classified information. The use of special advocates also raises issues under relevant aspects of section 23[28] because an appellant may be appealing an earlier decision made using classified information that resulted in that person’s liability for arrest and detention under the Bill.

155. As noted above, the requirement under section 27(1) to observe the principles of natural justice is a flexible one and varies in accordance with the nature of the power being exercised in particular circumstances.[29] The use of special advocates has been considered preferable in other jurisdictions to appeals being assessed in a closed, non-judicial environment.[30] In Al-Nashif v Bulgaria[31] the European Court, whilst not expressing a view on special advocates specifically, nevertheless concluded that:

156. We have, therefore, considered whether the provisions relating to the use of special advocates strike a rational and proportionate balance in these circumstances between the rights of the individual to procedural fairness and the need to protect sensitive information.

157. The Bill ensures that the special advocate must be provided with access to classified information that is used in any decision being appealed against; first raised in the course of an appeal to the Tribunal or other matters following within its jurisdiction; or relevant in a decision relating to arrest and detention (clause 235(3)). These requirements should ensure that the special advocate has access to all the evidence against the appellant and, thus, is an equal party to the proceedings.

158. The issue of communication between the appellant and the special advocate is more problematic (clause 238). There are no restrictions on communication between the appellant and the special advocate before the special advocate has been provided with access to classified information. If the special advocate wishes to communicate with the appellant after being provided with access to classified information, he or she must submit a written communication to the Tribunal or Court, as appropriate, for approval. The Tribunal then must either: forward the communication, with or without amendment, to the appellant; or decline to forward the communication. The Tribunal also has the discretion to consult the relevant security agency as to whether there is any risk of a security breach in the proposed communication. Further, although the appellant may communicate in writing to the special advocate without restriction, the special advocate may only substantively respond in accordance with the above-mentioned procedure.

159. This procedure substantially interferes with an appellant’s right to communicate and instruct a lawyer freely and therefore raises an issue of inconsistency with sections 23 and 27(1) of the Bill of Rights Act.

160. We consider however that the procedure strikes an appropriate balance between procedural fairness and the need to protect sensitive information.

161. In order to be recognised as a special advocate, a person must be a lawyer[33] and hold an appropriate security clearance given by the chief executive of the Ministry of Justice (clause 236(2)(a)). The person must then be considered by an agency set up for the purpose of appointing special advocates as having the appropriate knowledge and experience needed to be recognised as a special advocate (clause 236(2)(b)). This suggests that the special advocate will be a responsible individual who is unlikely to want to release sensitive information to his/her client.

162. It may be argued that further limitations on the rights of the applicant are unnecessary. There is a risk, however that even if the special advocate did not purposefully release information of a sensitive nature, this may occur inadvertently. Further, the release of such information is likely to cause serious adverse consequences, including prejudicing the lives of persons and the security of New Zealand (see clause 5). Clause 238(5)(a) makes clear that any decision to amend or decline to forward any communication between the special advocate and appellant can only occur if the communication would be likely to prejudice these interests, and only to the extent necessary. This means that there is a presumption in favour of uncensored correspondence between the special advocate and the appellant, with amendment or decline only occurring where full disclosure would result in serious adverse consequences.

Right to appeal or bring review proceedings and other natural justice issues

163. The Bill contains several clauses that provide that the decision-maker (Minister, immigration officer or chief executive) does not have to give reasons for certain decisions taken or only has to give reasons in specified circumstances (see clauses 25, 26, 87(6) and 174(6)). This Bill also provides that no appeal on the facts or on humanitarian grounds lies with regard to a wide range of decisions including, by way of example, the grant or refusal to grant and the cancellation of temporary entry class visa, limited visas, residence visas, and transit visas (clause 51(4)). We have considered whether these provisions are consistent with section 27(1) of the Bill of Rights Act.

164. As we have stated above, the principles of natural justice varies in accordance with the nature of the power being exercised in particular circumstances.[34] In Kindler v. Canada (Minister of Justice)[35] the Supreme Court of Canada concluded that in defining the right to fundamental justice (which is broader than, but analogous to, natural justice) relevant in the context of extradition, the Court must draw upon the principles and policies underlying extradition law and procedure. Using this approach then, in determining the scope of natural justice in relation to this Bill, we have looked at the principles and policies underlying immigration.

165. In the case of Canada (Minister of Employment and Immigration) v Chiarelli[36], the Court held that: 

166. Thus the Government has the right to adopt an immigration policy and, through Parliament, to advance legislation providing a framework for decisions by the executive about the conditions under which non-citizens will be permitted to enter and remain in New Zealand. It has done so in the Immigration Act 1987 and does so in the present Bill. In addition, Government immigration policy is expressed in the New Zealand Immigration Service's Operational Manual. The Manual – which sets out the criteria that applicants must meet, the evidence they must produce to show that they meet the criteria, and the processes for assessment and verification of applications – provides for fairness and natural justice in the treatment of applications (see Part A1 of the Manual).

167. In our view, the natural justice protections guaranteed by the Bill and the Operational Manual are sufficient in the immigration context to satisfy the minimum requirements of natural justice as affirmed in section 27(1) of the Bill of Rights Act. This is because non-citizens and non-permanent residents have no right to enter or remain in New Zealand. Further, decisions regarding the grant of visas are closely connected with the exercise of state sovereignty and the ability of the state to determine who shall and shall not come to into the country.

168. Any additional protections, such as providing an opportunity to appeal certain decisions made under the Bill are not necessary to meet these minimum standards. Conversely, the inclusion of provisions making the provision of reasons for the making of decisions discretionary and prohibiting appeals against certain decisions made pursuant to the Bill, does not affect our overall assessment that the Bill is consistent with section 27(1) of the Bill of Rights Act.

Section 27(2) – right to apply, in accordance with law, for judicial review

169. Section 27(2) of the Bill of Rights Act provides that:

170. The Bill provides that a person cannot bring judicial review proceedings in respect of some types of decisions of the Minister and/or immigration officer, including, for example, the lapsing of an application for a visa or of an expression of interest in obtaining an invitation to apply for a visa (clause 23(3)(b) and any refusal or failure to grant a visa, cancel a temporary entry class visa or refuse to grant or cancel a transit visa to a person outside New Zealand (clauses 51(6)(a), (b) and (c)).

171. In assessing these provisions' consistency with section 27(2) we consider that the key question is whether the decisions provided for in the Bill amount to a "determination" in respect of a person's "rights, obligations, or interests protected or recognised by law".

172. In Chisholm v Auckland City Council[37] the Court of Appeal held that: 

173. In Ubilla v Minister of Immigration[38] MacKenzie J held that section 27 did not apply to the refusal of entry of the applicant. According to the Judge the immigration officer’s decision was not of an adjudicative character despite there being the exercise of a statutory power which determined the appellant’s right to enter New Zealand. After referring to the decision in Chisholm, MacKenzie J said that

174. Based on this case-law, we consider that the particular decisions in question are unlikely to be considered adjudicative in nature. For instance, decisions concerning an invitation to apply for a visa do not "determine" the outcome of whether or not a visa is issued. Similarly, decisions regarding the order and manner in which applications are processed and decisions regarding the lapsing of certain applications are also not determinative. The effect of these decisions is to either process or not process an application at this time. Should an application be processed, it will be "determined" at the completion of the process. Should an application not be processed, an applicant can apply again to have his or her application "determined".

175. Moreover, the decisions are not likely to affect a person's "rights, obligations, or interests protected or recognised by law". Non-citizens and non-permanent residents have no right to enter New Zealand and the issuing of a visa or permit to enter New Zealand is a matter of discretion. Therefore, any decision made under the Bill on a non-citizen or non-permanent resident’s ability to enter or remain in New Zealand, which is not a right or interest protected or recognised by law, is unlikely to attract the protection of section 27(2).

176. We therefore, consider that the provisions of the Bill that prevent review of certain decisions made under the Bill are not inconsistent with section 27(2) of the Bill of Rights Act.

Conclusion

177. Overall, we have formed the view that the Immigration Bill appears to be consistent with the Bill of Rights Act. In reaching this conclusion, we have given particular emphasis to the purposes of this legislation, in particular the need to maintain national security and contribute to international security, and to manage in a robust and accountable way the entry, exit and conduct of persons who are not citizens of New Zealand, while maintaining fairness and respect for human rights.

Footnotes

1 See Moonen v Film Literature Board of Review [2000] 2 NZLR 9 and R v Oakes (1986) 26 DLR (4th)

2 Attorney-General v Zaoui [2005] NZSC 38

3 See, for instance, Soering v Germany (1989) 11 EHRR 439

4 Article 3.1 prohibits deportation "where there are substantial grounds for believing that he would be in danger of being subjected to torture".

6 R v Simmons [1988] 2 SCR 495. Applied in the context of immigration in Dehghani v Canada (Minister of Employment and Immigration) [1993] 1 SCR 1053.

7 NZ Stock Exchange v CIR [1991] 3 WLR 221; [1991] 4 All ER 443 (PC); see also McKinlay Transport Ltd v R (1990) 68 DLR (4th) 568 (SCC); Thomson Newspapers v Canada [1990] 1 SCR 425.

8 United Kingdom v Hrynyk 135 DLR (4th) 693, 702.

9 Trans Rail v Wellington District Court [2002] 3 NZLR 780, 791-792.

10 Ross v New Brunswick School District No 15 [1996] 1 SCR 825

11 R v Keegstra [1990] 3 SCR 697, 729, 826

12 Neilsen v Attorney-General [2001] 3 NZLR 433 (CA) para 34.

13 R v Nikau [1991] 7 CRNZ 214

14 A further example of justifiable detention by non-police officers is provided in the corrections context (see s.103 of the Corrections Act 2004)

15 Immigration Act Review: Background Paper Pg 230 Para 1038

16 It appears that section 23(3) of the Bill of Rights Act (right to be brought before a competent court or tribunal as soon as possible) is not engaged as those arrested and detained under clause 275 have not been arrested for an offence. Nevertheless, we believe that, in respect of clause 275(e) in particular, similar considerations in respect of not prolonging detention for the sake of administrative convenience should apply (as affirmed in Whitair v Attorney-General [1996] 2 NZLR 45 and R v Greenway [1995] 1 NZLR 204 (CA))

17 This is assuming that the judge is satisfied that the person is the person named in the application for the warrant of commitment or deportation order (clause 279(1)(a))

18 [1994] 2 NZLR 306

19 Guzzardi v Italy (1980) 3 EHRR 333.

20 See Secretary of State for the Home Department v E and S [2007] EWCA 459; for a similar discussion but with a different result see Secretary of State for the Home Department v JJ & Ors [2006] EWCA 1141

21 Yadegary v Auckland Central Remand Prison & Anor [2007] HC AK CIV-2006-404-7620 (4 April 2007)

22 R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704

23 Ibid. At 67

24 This follows the reasoning of the judge in Yadegary. However, the judge also made it clear that in determining what a reasonable period is, the detainee’s own conduct in obstructing the removal process is also significant (at 67)

25 Such an approach would most likely be considered discriminatory following the judgment in A & Ors v. Secretary of State for the Home Department [2004] UKHL 56

26 R v Wholesale Travel Group (1992) 84 DLR (4th) at 219.

27 Drew v Attorney-General [2002] 1 NZLR 58

28 In particular, section 23(1)(b) of the Bill of Rights Act which protects the right to consult and instruct a lawyer.

29 See Daganayasi v Minister of Immigration [1980] 2 NZLR 130

30 See section 6 of the Special Immigration Appeals Commission Act 1996 (UK) which provides for the use of special advocates in the immigration context in the UK following the European Court of Human Rights decision in Chalal v UK [1996] 23 EHRR 413

31 Al-Nashif v Bulgaria (2002) 36 EHRR 655

32 Ibid at 497

33 As defined in section 6 of the Lawyers and Conveyancers Act 2006

34 See Daganayasi v Minister of Immigration [1980] 2 NZLR 130

35 [1991] 2 S.C.R. 779, at page 848, per McLachlin J. 

36 [1992] 1 SCR 711, per Sopinka J. Most recently followed by the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII) and by the Federal Court of Canada in Kaur Dehar v. Canada (Citizenship and Immigration), 2007 FC 558 (CanLII), per Justice de Montigny.

37 (CA32/02 29 November 2002)

38 (High Court, Wellington CIV 2003-485-2787, 19 February 2004, MacKenzie J). Confirmed by the Court of Appeal, outside the context of immigration, in Henderson v Director of Land Transport New Zealand [2006] NZAR 629.

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