You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2005 >>
[2005] NZBORARp 11
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Immigration Advisers Licensing Bill (Consistent) (Section 21) [2005] NZBORARp 11 (20 May 2005)
Last Updated: 15 September 2020
Immigration Advisers Licensing Bill
20 May 2005
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
IMMIGRATION ADVISERS LICENSING BILL 2005
- We
have considered whether the Immigration Advisers Licensing Bill ("the Bill") is
consistent with the New Zealand Bill of Rights
Act 1990 ("the Bill of Rights
Act"). We understand that the Bill is to be considered by Cabinet at its meeting
on Monday, 30 May
2005.
- We
understand that the Bill is likely to be subject to further amendments before it
is submitted to Cabinet, and we will provide you
with further advice should this
prove necessary.
- The
Bill establishes an occupational licensing framework under which only those
individuals and organisations that hold licenses are
authorised to provide
potential migrants with advice on immigration matters, unless they are exempted.
- The
Bill is directed at ensuring that the interests of potential migrants are
protected when receiving immigration advice and that
New Zealand's reputation as
a migration destination of choice is enhanced (see clause 3 of the Bill). The
provisions of the Bill
therefore extend to those providing advice both in New
Zealand and overseas.
- The
Bill raises issues of potential inconsistency with section 21 (the right to be
secure against unreasonable search and seizure).
We have come to the conclusion
that the entry and inspection powers in the Bill are reasonable and therefore
appear consistent with
section 21.
- The
Bill:
- establishes the
Immigration Advisers Authority, an independent statutory body that will
administer the licensing regime;
- provides that
the Authority may require prospective advisers to meet minimum levels of
competence before being able to provide advice;
- requires that
only persons who are considered to be "fit and proper" may qualify to be issued
with a license;
- recognises that
immigration advisers can be issued with differentiated licenses depending on
their qualifications, knowledge and experience;
- establishes a
code of conduct for immigration advisers that sets out standards of professional
and ethical conduct that advisers are
required to abide by;
- sets up a
monitoring and complaint and disciplinary system under which immigration
advisers may be investigated and subject to sanctions;
and
- provides for a
range of offences for more serious breaches of the Act.
Section
21: right to be secure against unreasonable search and seizure
- Section
21 provides the right to be secure against unreasonable search and seizure.
There are two limits 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.
- The
Bill includes two provisions conferring entry and inspection powers. As stated
above the purpose of the Bill is to protect the
interests of potential migrants
when receiving immigration advice and to protect and enhance New
Zealand’s reputation
as a migration destination of choice.
In order to ensure the effectiveness of the licensing regime it was considered
necessary to
include inspection powers enabling authorised persons to ensure
that the requirements under both the licensing regime and the Act
are being met
by licensed immigration advisers.
- We
note that significant problems can arise for potential immigrants where
immigration advisers fail to provide services of an appropriate
standard, are
fraudulent or use unlawful practices such as retaining passports. The entry and
inspection powers therefore serve an
important purpose.
Entry and
Inspection powers
- Clause
41 of the Bill, which deals with the general administration of the licensing
regime, provides that the Authority or any person
authorised by the Authority
may enter at any reasonable time any premises where any licensed immigration
adviser works or has worked
in the last 2 years. The Authority, or any person
authorised, may also question any licensed immigration adviser and require the
production of documents for inspection. The purpose of this clause is to ensure
compliance with the licensing regime, including the
code of conduct and
competency standards for licensed immigration advisers. We consider that clause
41 constitutes a power of search
and seizure for the purposes of section 21 of
the Bill of Rights Act.
- We
consider that the powers of entry and inspection in clause 41 are reasonable and
therefore consistent with section 21 because:
(a) The purposes of
the inspection are limited to administering the licensing regime in respect of
persons who are licensed to provide
immigration advice (clause 40(1));
(b) The manner in which the powers can be exercised are concisely stated and
limited, particularly with respect to authorisation of
inspectors (clause
43(1)), the places that may be searched (clause 41(1)(a)), the requirement to
produce evidence of their identity,
authority to enter and the powers conferred
on them (clause 43(2));
(c) A person has available to them the defence of protection from
self-incrimination (clause 42A);
(d) An inspection of a dwellinghouse requires consent from the occupier or a
warrant (clause 42B).
- Clause
42 of the Bill deals with the investigation of suspected offences and provides
for the Authority, or a person authorised by
the Authority, to enter any
premises in which a person provides immigration advice and, after informing the
person of their suspicions,
require a person to produce documents for
inspection. The purpose of the clause is to enable investigating officers, where
they have
good cause to suspect that an offence under the Act is being committed
or has been committed, to investigate licensed immigration
advisers. Such
offences include providing immigration advice without a licence, providing false
or misleading information and employing
an unlicensed immigration adviser.
Clause 42 constitutes a search and seizure for the purposes of section 21of the
Bill of Rights
Act.
- We
consider that the powers of entry and inspection in clause 42 are reasonable and
therefore consistent with section 21 because:
(a) The authorised
purpose, which is limited to investigating offences under the Act, is explicitly
spelt out in the Act (clause 41(2));
(b) The power may only be exercised where the Authority or the person
authorised by the Authority have good cause to suspect that
a person is
committing or has committed an offence under the Act (clause 42(a));
(c) The manner in which the powers can be exercised are concisely stated and
limited, particularly with respect to authorisation of
inspectors (clause
43(1)), the places that may be searched (clause 42(a)),the requirement that
before an investigating officer may
request documents from a person they must
first inform that person of their suspicions that an offence is being committed
or has
been committed (clause 42(b)), the requirement to produce evidence of
their identity, authority to enter and the powers conferred
on them (clause
43(2));
(d)The types of information that can be seized are clearly set out in the
relevant provision and restricted to achieving a specific
purpose (evidence of
the commission of an offence clause 42(b)(iii));
(e) A person has available to them the defence of protection from
self-incrimination (clause 42A);
(f) An inspection of a dwellinghouse requires consent of the occupier or a
warrant (clause 42B).
Conclusion
- Overall,
we have formed the view that the entry and inspection powers, in light of the
restrictions and safeguards outlines above,
are reasonable and therefore, not
inconsistent with section 21 of the Bill of Rights Act.
- In
accordance with previous practice, we attach a copy of this opinion for referral
to the Minister of Justice. A copy is also attached
for referral to the Minister
of Immigration if you
agree.
Jeff Orr Chief Legal Counsel Office of Legal Counsel
|
Margaret Dugdale Policy Manager Bill of Rights Team
|
CC Minister of Justice Minister of Immigration
|
|
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2005/11.html