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Immigration (Mass Arrivals) Amendment Bill (Consistent) (Section 22, 27(2)) [2012] NZBORARp 11 (3 April 2012)
Last Updated: 27 April 2019
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
- 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.
- 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
- 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
- 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
- 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]
- The
Court of Appeal has also cited the two step description of lawful detention
outlined by the House of Lords:[3]
- the
detention must be for an authorised purpose (e.g. prior to deportation);
and
- the
detention must be limited to a period which is reasonably necessary for that
purpose to be carried out.
International consideration
- 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]
- 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]
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- Applying
the various authorities outlined above, we consider the detention of an
individual by the state must:
- have
a valid purpose specified in law;
- be
necessary to achieve that purpose (and proportionate and reasonable in all the
circumstances); and
- 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
- 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.
- 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]
- 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
- We
consider that the Bill contains appropriate safeguards to ensure that detention
is not and does not become arbitrary:
- 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);
- 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;
- 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
- 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
- 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)
- 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.
- 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.
- 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.
- 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]
- 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
- 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
Footnote 1
Neilsen v Attorney-General [2001] NZCA 143; [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 [1983] EWHC 1; [1984] 1 WLR 704, 706[1983] EWHC 1; ,
[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 [2004] NZCA 228; [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] NZCA 15; [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] NZCA 24; [2009] 2
NZLR 99 at [61] and [62]
Footnote 12
Tannadyce Investments v Commissioner of Inland Revenue [2011] NZSC 156 (20
December 2011)
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.
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