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Immigration (Mass Arrivals) Amendment Bill

3 April 2012

ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
IMMIGRATION (MASS ARRIVALS) AMENDMENT BILL

1. We have considered whether the Immigration (Mass Arrivals) Amendment Bill (PCO 15375/23.0) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill will be considered by Cabinet Economic Growth and Infrastructure Committee at its meeting on Wednesday, 4 April 2012.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with the right to be free from arbitrary detention and the right to judicial review affirmed in ss 22 and 27(2) of the Bill of Rights Act respectively. Our analysis under those sections is set out below.

THE BILL

3. The Bill amends the Immigration Act 2009 (‘the Act’). The purpose of the Bill is to address the risk of a mass arrival of illegal immigrants in New Zealand. The Bill contains measures designed to deter people-smuggling to New Zealand and enable the effective and efficient management of a mass arrival of illegal migrants, should one occur. The Bill also seeks to streamline review processes in a number of respects, including by limiting the availability of judicial review proceedings.

CONSISTENCY WITH SECTION 22 (ARBITRARY DETENTION)

The right to be free from arbitrary detention

4. Section 22 of the Bill of Rights Act affirms the right of everyone to be free from arbitrary detention. Section 22 recognises that there are circumstances in which it will be necessary for the state to detain individuals but that there are limits on the legitimate use of state power for that purpose.

New Zealand case law

5. The Court of Appeal has described a detention as being 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.”[1]  It has suggested that “lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality.”[2]

6. The Court of Appeal has also cited the two step description of lawful detention outlined by the House of Lords:[3]

  1. the detention must be for an authorised purpose (e.g. prior to deportation); and
  2. the detention must be limited to a period which is reasonably necessary for that purpose to be carried out.

International consideration

7. Section 22 of the Bill of Rights Act affirms New Zealand’s commitment to art 9(1) of the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee (HRC) has considered the scope of art 9(1) and concluded that:

‘arbitrariness’ is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence, or the recurrence of crime.[4]

8. The HRC made a similar observation in a subsequent case and added:

In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.[5]

9. The statements of the HRC are not binding in domestic law but have been cited favourably by the New Zealand Court of Appeal.[6]

Detention provisions in the Bill

10. There is already a regime in the Act for the detention of individuals who arrive in New Zealand pending their removal. The Bill inserts provisions dealing with the specific situation of a mass arrival of illegal migrants and their detention pending removal.

11. Clause 11 of the Bill amends s 307 of the Act by inserting new subs (2), which provides that the purpose of the mass arrival warrant of commitment regime is to:

    • provide a practicable and administratively workable time period to process the mass arrival group and to properly assess any threat or risk to security or the public that may arise from members of the mass arrival group, and
    • avoid disrupting the efficient functioning of the Immigration Department, the courts, or any prison or premises identified in the warrant of commitment.

12. Clause 12 of the Bill inserts new ss 317A to 317E into the Act, which establish a process for the detention of members of a mass arrival group.  A “mass arrival group” is defined by cl 5 as a group of more than 10 people who arrived in New Zealand on board the same craft, or on board the same group of craft in circumstances that indicate they intended to arrive as part of the same group.

13. New s 317A enables an immigration officer to apply to a District Court Judge for a warrant of commitment authorising the detention of all members of a mass arrival group for a period of not more than six months, if:

    • the warrant is necessary to achieve the purposes in new subs 307(2), or to uphold the integrity or efficiency of the immigration system; and
    • the members of the mass arrival group are already detained in custody under the Act; and
    • it becomes apparent that one or more of the circumstances described in s 316(1)(a) to (d) of the Act[7] will apply to each member of the mass arrival group before the expiry of the period of detention already authorised under the Act.

14. New s 317B requires a District Court Judge to issue a warrant of commitment authorising detention of each member of the mass arrival group for the period sought, or for a shorter period if the purposes of detention can be achieved in that shorter period. A Judge must not issue the warrant unless satisfied that the application relates to a mass arrival group, the warrant is necessary for one or more of the reasons stated in new s 317A(1)(a), one or more of the circumstances in ss 316(1)(a) – (d) apply to each member of the group, and the requirements of new s 317A(2)(a) and (b) (contents of application) have been met.

15. New s 317C allows an immigration officer to apply for a variation of a mass arrival warrant to include in that warrant one or more persons who are members of the mass arrival group but who were unknown to the immigration officer at the time of the original application under s 317A.

16. Under new s 317D, a District Court Judge may order an immigration officer to report to the court, no more often than once every 28 days for the duration of the warrant, on whether the reasons for the mass arrival warrant continue to apply. A Judge may shorten the period of the warrant if, after receiving a report, he or she is satisfied that those reasons will no longer apply after the expiry of the shorter period.

17. New s 317E enables an immigration officer to make an application for a further warrant of commitment in respect of the mass arrival group. The application may be for a group warrant in respect of all or specified members of the mass arrival group, or the application may be for individual warrants in respect of individual members of the group. If the application is for a group warrant, it cannot authorise detention for more than 28 days but is otherwise dealt with in the same way as the original application.

18. Clause 14 of the Bill inserts new s 324A into the Act, which enables an immigration officer to apply to a District Court Judge for a variation of the warrant of commitment, including in relation to the length of the warrant, or the persons to whom the warrant applies. An application for variation is to have regard to new ss 317B, 317C or 317E as appropriate. At any stage during the currency of the warrant an immigration officer is also able to apply, in respect of any individual detained under that warrant, for an individual warrant, an order for release on conditions under s 320 of the Act, or for an order that the individual be released.

Assessment of the Bill

19. Applying the various authorities outlined above, we consider the detention of an individual by the state must:

  1. have a valid purpose specified in law;
  2. be necessary to achieve that purpose (and proportionate and reasonable in all the circumstances); and
  3. continue no longer than necessary to achieve that purpose (i.e. a person must be released when the purpose for the detention ends).

Purpose of detention under group warrant

20. Detention under a group warrant must be necessary for one of the reasons set out in new s 317A(1), and one or more of the circumstances in s 316(1)(a) to (d) of the Act must apply to each member of the group. Those reasons include effective management of the mass arrival group, to manage the threat or risk to security or the public from the group or members of it, to uphold the integrity and efficiency of the immigration system, and to avoid disruption to the court. 

21. The detention of individuals pending their removal from New Zealand is recognised as necessary in the circumstances described in s 316(1)(a) to (d) of the Act, which include that there is no  craft available to take the person from New Zealand, or there is no evidence of identity. The Human Rights Committee has upheld the detention of aliens who have illegally entered a country,[8] and the detention of an asylum seeker who had sought to avoid expulsion.[9]

22. The purpose of the group warrant regime is to provide for the effective management of a significant mass arrival, primarily by allowing for the use of a group warrant to detain multiple individuals for a longer period of detention than is normally permitted. It is apparent that the mere fact of a mass arrival could make it necessary to detain all members of the group under a single warrant and for longer than usual. The potentially large numbers of people involved could overwhelm New Zealand’s immigration systems and make it impossible to process them individually within the normal timeframe (for example, by establishing their identity and whether they pose a security risk). We consider that detention in these circumstances is necessary and for a legitimate purpose.

Safeguards in the Bill

23. We consider that the Bill contains appropriate safeguards to ensure that detention is not and does not become arbitrary:

  1. section 317B(2)(b) requires a District Court Judge to be satisfied that the detention is necessary for one or more of the reasons stated in new s 317A(1)(a);
  2. section 317B(1)(b) enables the Judge to issue the warrant for a shorter period than sought if satisfied that the purposes of the detention can reasonably be achieved in a shorter period;
  3. section 317D enables the Judge to require an immigration officer to report at specified periods throughout the duration of the warrant on whether the reasons for the warrant still exist, and to shorten the duration of the warrant if the purposes of the detention can reasonably be achieved in a shorter period; and
  4. section 324A enables an immigration officer to seek variation of the warrant at any stage, including variation of the term and persons to whom it applies.

Conclusion on arbitrary detention

24. We consider that there is a legitimate purpose for detention, as detention of multiple individuals under a single warrant for a longer initial period of detention may be justified in the unique circumstances of a mass arrival. These circumstances, coupled with proper safeguards to ensure the detention is necessary and limited to a reasonable period, leads us to conclude that the Bill does not enable arbitrary detention. The Bill, therefore, appears to be consistent with the right to be free from arbitrary detention affirmed in s 22 of the Bill of Rights Act.

CONSISTENCY WITH SECTION 27(2) (RIGHT TO JUDICIAL REVIEW)

25. Section 27(2) of the Bill of Rights Act affirms the right of any person affected by a determination made by a public authority to apply for a judicial review of that determination in accordance with law.

26. Clause 10 of the Bill repeals s 249(1) of the Act (limits on judicial review) and replaces it with several additional subsections that limit the availability of judicial review. New subsection (1A) provides that no review proceedings may be brought in any court unless the Immigration and Protection Tribunal has issued its final determination. New subsection (1B) provides that review proceedings can only be brought with the leave of the High Court or the Court of Appeal.

27. We understand that the purpose of the new provisions is to remove the incentive to take review proceedings instead of using the normal appeal process. Appeals under the Act are on points of law only so the issues dealt with on appeal and on review are likely to be substantially the same. 

28. The Court of Appeal has accepted similar provisions in the Employment Relations Act 2000 are necessary to prevent reviews from disrupting unfinished proceedings of the Authority.[10] The Court of Appeal has also considered provisions in the Tax Administration Act 1994 that prevent judicial review of matters dealt with through a specific procedure in that Act. It concluded that the approach is fair and that allowing judicial review could “provide scope for gaming and diversionary behaviour.”[11] That position has been confirmed by the Supreme Court.[12]

29. For these reasons, we have concluded that the limits the Bill places on the right to judicial review are justifiable in the statutory context. There remains an alternative procedure to test the lawfulness of decisions in the same way as judicial review. We also note that the courts have a wide discretion to grant leave for a judicial review where it is a matter of “general or public importance or any other reason.”

CONCLUSION

30. We have concluded that the Bill appears to be consistent with the rights to be free from arbitrary detention and the right to judicial review, respectively affirmed in ss 22 and 27(2) of the Bill of Rights Act. 

 

Melanie Webb
Acting Chief Legal Counsel
Office of Legal Counsel

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Footnote 1

Neilsen v Attorney-General [2001] 3 NZLR 433, 441

Footnote 2

Manga v Attorney-General [2000] 2 NZLR 65, 72; see also Zaoui v Attorney-General [2005] 1 NZLR 577, 615 (CA)

Footnote 3

R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, 706, [1984] 1 All ER 983, 985; Chief Executive of the Department of Labour v Yadegary [2008] NZCA 295, at [125] & [139]

Footnote 4

van Alphen v The Netherlands (Communication 305/1988, 23 July 1990), at [5.8]

Footnote 5

A v Australia (Communication 560/1993, 3 April 1997), at [9.4]

Footnote 6

Chief Executive of the Department of Labour v Yadegary [2008] NZCA 295, at [38], Zaoui v Attorney-General [2005] 1 NZLR 577, 616 (CA)

Footnote 7

Unavailability of a craft to remove persons from New Zealand or other reasons preventing the person’s removal

Footnote 8

A v Australia (Communication 560/1993, 3 April 1997) at [9.3]

Footnote 9

Jalloh v The Netherlands (Communication 794/1998, 23 March 2002)

Footnote 10

Section 184(1A); Employment Relations Authority v Rawlings [2008] ERNZ 26 at [26] and [36]

Footnote 11

Section 109 of the Tax Administration Act 1994 prevents judicial review of matters dealt with through a specific procedure in the Taxation Review Authority; Westpac Banking Corporation v Commissioner of Inland Revenue [2009] 2 NZLR 99 at [61] and [62]

Footnote 12

Tannadyce Investments v Commissioner of Inland Revenue [2011] NZSC 156 (20 December 2011)

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In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Immigration (Mass Arrivals) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.