Few Labour voters may realise the full extent of what the Clark government has in mind – or has allowed to get out of hand – with its rewrite of the 1987 Immigration Act. To date, the parties on the centre right (National, Act, United Future) have also shown little interest in the Immigration Bill’s sweeping extensions of state power, while the anti-immigrant crew within New Zealand First must be thinking all their Christmasses have come at once.
Under this legislation, it is proposed that immigration officials should be given powers of entry to business premises and private homes and enhanced powers of search, seizure and detention without warrant. The CEOs of any government department or agency will be able to decree information as classified, and thus put it beyond direct access or query by the people most affected by it. Access even to a summary of what is being alleged will be conditional, and at the state’s discretion.
Even if allowed, a summary of allegations can be made as skeletal and un-informative as the state decides. Firstly, any such summary will be only of the allegations arising from the information, and need not summarise the information itself. Secondly, clause 216 of the Bill says the summary will not be required to list any of the documents, or detail any of their contents or contain anything that might identify the source of any of the allegations. Good luck with mounting a viable defence – against whatever it is the state thinks you have done – under such conditions.
There’s more. The Bill empowers Immigration officials to compel people to provide biometric information without the Bill containing firm guidelines or procedures for the use, retention, security, accuracy, storage and sharing of such data. There is no overt statement about the relation of the new Bill to the Privacy Act, or support for its protections on fair handling of personal information and bodily integity. There is only the kind of vague mention found at clause 92, which opens up more problems than it resolves – by saying ( incorrectly) that the Privacy Act gives immigration officers power to ‘ further deal’ with the personal data they have collected and retained.
Clause 92 of the Bill also says that New Zealand citizens returning home can be compelled to have photographs taken of them – “subject to regulations” made under the Bill – in order to prove they are who their passports say they are. A close reading of the biometric information definition clause (at p 20 of the Bill) indicates these mandatory photographs need not be restricted to facial photographs – a concern that was raised by some of those who made submissions on the Bill. So much for bodily integrity.
Then Immigration Minister David Cunliffe at a press conference to announce the Immigration Bill
The Immigration Bill is now before the Transport and Industrial Relations Select Committee, and is due to be reported back to the House on June 30. In the House last year, then Immigration Minister David Cunliffe boasted that the legislation would reflect international best practice standards.
It doesn’t. In fact, New Zealand plans to enshrine in law – clauses 215 (5) 216 (4-5) and 235 -239 are the key parts – the use of special advocates in classified information situations. During 2007, two major overseas investigations voiced serious concerns about the special advocate system – because it denies people adequate knowledge of the essence of the case being made against them. The reports were carried out by British and by Canadian parliamentary committees and both made recommendations on ways to improve the system that the Immigration Bill has refused to contemplate.
[Note : special advocates were used for the first time in New Zealand during the Ahmed Zaoui case. The special advocate, who is a Crown appointed lawyer, is allowed to see classified information and argue the case against it on behalf of their “client” – who under this Bill, could be anyone facing allegations based on secret information. Once having seen the classified material, the special advocate cannot talk to the one person – his ‘client’ – best able to rebut the information as false, or to provide an innocent explanation.]
I will have more on the special advocate system later in this article. Suffice to say, the Canadians concluded that procedural fairness demands the special advocate be able to meet and confer with his ‘ client’ AFTER he or she has seen the classified evidence. Recommendation 8 of the Canadian parliamentary report stated :
“That the special advocate be able to communicate with the party affected by the proceedings, and his or her counsel, after receiving confidential information and attending in camera hearings, and that the government establish clear guidelines and policies to ensure the secrecy of information in the interest of national security.
The British reached exactly the same conclusion. Their committee report recommended that the ban on communication between the special advocate and his ‘client’ – after the secret evidence has been seen – should be relaxed.
Let me take a second or two to spell out the reasoning involved – because our Immigration Bill will put vulnerable people at serious risk if it continues to ignore these overseas developments. The Canadians set out their rationale this way :
In our view, if the special advocate is able to communicate with the party affected by the proceedings only before receiving the confidential information, his or her role is rendered much less effective, as he or she is unable to meaningfully test the reliability of a specific piece of classified or sensitive information, or the validity of keeping it confidential. If the special advocate were to have access to the party and his or her counsel after obtaining confidential information, we are confident that the advocate would be able to maintain the secrecy of the evidence and not disclose it… For example, he or she might communicate with the client in the company of another person, likewise sworn to secrecy, so that there can be close monitoring of what is discussed and inadvertent errors of disclosure prevented… The Committee believes that the government is in a position to establish appropriate safeguards to ensure that sensitive information relating to matters of national security is kept secret. The underlying objective would be to permit communication between the special advocate and the affected party, in the interest of procedural fairness, while still maintaining the credibility and integrity of matters involving national security confidentiality…”
Why, one can only wonder, is our Government refusing to allow such a sane and sensible approach? In effect, the Government is treating its own lawyers – the special advocates, some QCs – as being so incompetent and/or so unreliable, they cannot be entrusted with talking to their clients after seeing the classified information. Instead, only a tortuous process in writing is envisaged at clause 238 (5-6) with such written communications required to be vetted by the authorities beforehand, lest any secrets about national security or public service operational procedure, be divulged. Need I add that the British parliamentary committee also recommended that a legal obligation exists on the state to provide a statement of the ‘gist’ of the classified material? Again, nothing like that sensitivity to natural justice is evident in our proposed legislation.
Unfortunately, when this Bill comes back from select committee at the end of June, it can expect a fairly easy passage. Only Keith Locke of the Greens being likely to provide much opposition. Politically, the Bill is widely seen as being a sop to Winston Peters, and to his triennial cycle of anti-migrant crusades.
Elsewhere in the world, opposition from the centre right might be expected and forthcoming – but in New Zealand, the centre right and its libertarian wing seem concerned merely with corporate freedom and property rights, and not with the civil rights of individuals. Thus, Act and National seem certain to applaud the extensions of state power the Bill contains, and will vote with the Government to pass them into law. Much as they may whine on about the nanny state, the centre right in New Zealand has always had a love affair with the authoritarian powers of the daddy state.
Over the next few days and weeks, I will try to go through the Bill clause by clause – and apologise if this proves hard going at times. The Bill itself can be found on the parliament website but a hard copy is preferable. In the introduction, the Bill announces its intentions : it seeks to modernise and simplify our immigration legislation and streamline the entry and stay of people that New Zealand wants and needs, while managing risks in a fair and balanced way. Today, I am going to look only at some of the security/natural justice/biometrics aspects of those goals.
The failures begin at the outset. As written, the Bill lacks any overall clause that confirms the operation of the Privacy Act 1993, the Official Information Act 1982 and the Ombudsmen Act 1975 will continue unaffected as a check on arbitrary power.
Obviously, this is necessary when it comes to the use of classified and biometric information. This Bill not only broadens the use of classified information – any CEO can call classified information whatever he or she finds inclined to do so – but the people affected have had their avenues of appeal reduced. Under the 1987 Act for instance, appeals could be made to the Inspector General of the SIS over the use of classified information. Not any more, because that watchdog has been euthanised. Clause 35 (1) (3) of the new Bill explicitly rules out any complaint to the SIS Inspector – General about anything done, or not done, involving the use of classified information.
For years, the Zaoui defence team argued – to an indifferent Law Society, among others – that procedures being introduced in the Zaoui case would soon become more widely used, and potentially affect everyone. This is exactly what has now happened. Clause 5 (1) of the Bill allows classified and secret information to be anything that “ in the opinion of chief executive of the relevant agency” should not be disclosed, save under severely limited conditions that are to to be decided, ultimately, by the same agency.
As mentioned, this confers sweeping powers on any and all CEOs of state agencies to designate as classified any information they see fit. It can with-hold such information ( as clause 5 (2) allows) if the CEO feels disclosure might identify its sources or the nature or scope of the information, or any operations about any functions of the organisation, or if anyone overseas who may have supplied the information mightn’t want it to be disclosed.
Disclosure of the secret information can also be with-held under 5 (3) if the information might prejudice security or our international relations, inhibit the Police, or impact negatively on future information flows from any overseas country or foreign organisation. At the end of the day, even if the courts and the new Immigration and Protection Tribunal tried to rule that the information doesn’t really merit its classified status – lets say because, as in the Zaoui case, about 80 percent of it might already be on the Internet – then clause 231 (2) enables the CEO of any relevant agency to over-rule the courts, and keep the lid on.
Obviously, the granting of such wide powers to bureaucrats cannot be justified in a democracy. The Immigration Bill is also emerging, need one be reminded, from within an Immigration Service that is currently the subject of several parallel inquiries into its possible abuse of its existing powers.
When the Transport and Industrial Relations Committee reports back on June 30, it is highly unlikely to scrap this burgeoning system of secret information. The select committee seems more likely to recommend that the use of classified information be limited – say, to information of a criminal or a security nature. Chances are, it will also try to shorten the potential list of agencies involved. It could well recommend say, that only the CEOs of the police, security and border control agencies should be granted the power to drape their decision-making and operations with secrecy.
However, shortening the list wouldn’t really be very much of a compromise. Think about it. A narrowed list involving only police, security and border control agencies would still leave – by my count – the heads of the SIS, GCSB, Police, Corrections Department and Internal Affairs, and the chief executives of the Department of Labour, Ministry of Fisheries, Ministry of Agriculture and Forestry, Civil Aviation Authority, Aviation Security, New Zealand Customs, the Ministry of Foreign Affairs and Trade, Maritime New Zealand and the New Zealand Defence Force.
Do we really want to pass a law that grants the CEOs of so many agencies the power to shield anything they do from scrutiny and challenge, simply because ( Pt 1, clause 5 (1)) ‘ in the opinion of the chief executive’ it should be? These are emergency powers, and there is no current emergency ( or proportionate threat to New Zealand) that justifies them. No intolerable administrative bottlenecks have been put forward as justification, either.
Obviously, there is a special problem with granting Police the power to decree, and to use classified information. On principle, criminal information should be tested in open court. We have developed a criminal system over the centuries with checks and balances for the handling of allegations against individuals. To give the Police the power to decree information classified and thus exempt from normal challenge would take us back to the Star Chamber – and it has the potential to subvert the entire criminal justice system.
For much the same reasons, the provisions in the Bill – say the ones at Pt 1, Clause 5 (2) and clause 216 (4) – that enable classified information to be with-held in order to protect sources, is also unacceptable. Justice requires people to know not only what they being accused of and why, but who is making the accusation. Particularly so in immigration contexts. Allegations against business migrants and refugees can and are made by business rivals, and/or by disgruntled spouses and relatives. People dob in others, in the hope of winning brownie points for their own case, from the immigration authorities.
Take an example. In the well-known US case of the Palestinian student Hany Kiaraldeen, the US immigration authorities gave five consecutive and ever-changing summaries of the secret information against him – starting with a meaningless two sentence summary of the allegations, and unfolding out into claims he had threatened to kill US Attorney-General Janet Reno. It was eventually revealed that the Immigration Service’s sole, secret source was Kiareldeen’s estranged wife – who had also made a series of false statements about him to welfare authorities.
Not only is there nothing in the Immigration Bill to prevent similar injustices happening here, the secrecy provisions virtually ensure it could happen with impunity. Spouses and rivals – or populist politicians keen to exploit immigration issues – will be able to relay ‘secret’ tales to the Immigration Service, leaving their targets severely disadvantaged when it comes to countering just what, and by whom, is being alleged about them. The Bill, as written, is a recipe for corruption and abuse.
The Bill does not give people affected by classified data an automatic right to a summary of the information being used against them. In clauses 34, 35, 216 and 238, it uses instead the limiting phrase – “ except to the extent that providing such a summary would itself prejudice the [security] interests referred to in section 5 (3).” This creates an entirely circular process, in that the final decision on disclosure will rest with the CEO of the agency that originated the accusation! Don’t worry – we’ll give you a summary, unless we decide we won’t.
Should it ever be conditional as to whether a summary is provided in classified information cases? No. That is why Canada and the UK forbid the use of classified information in refugee and protection status decisions, unless such a summary is provided. Our own High Court said as much in its Zaoui case decision of December 2003. In July 2006, the United Nations Commissioner for Refugees submission on the 1987 Act review explicitly asked New Zealand “ not to adopt [practices that allow asylum claims to be determined and rejected on the basis of classified information.”
Regardless, this is what New Zealand now proposes to do. Why is it wrong to do so? Because a substantive summary is the only way that the proper balance between national security and natural justice can be struck. To take the obvious example : Ahmed Zaoui managed to prove he was not a threat to national security only after his team won in court the right of access to a substantive summary – and he and his defence team could thereby put before the SIS Inspector -General’s review a more thorough and far more accurate account of the main events in his political career than the one that the SIS had mistakenly concocted. To be able to present compelling rebuttals, substantive summaries are essential.
Mr Zaoui’s lawyer – Deborah Manning
That is not what the Bill proposes. Having learned from its Zaoui mistake, the Clark government plainly intends to bury any mistakes it makes in future. The feeble concessions under the Bill run counter to overseas best practice. In the 2005 deportation case of the neo-Nazi Ernst Zundel in Canada, Zundel was provided with a 58 page summary of the information – not just of the allegations – being used against him. Mohammad Harkat, another high profile Canadian security case, got an 17 page summary of the information, with an extra 32 page schedule of background, footnotes and argument.
Unlike us, the Canadians – and the British – treat such detail and frankness as essential to natural justice, whenever secret information is involved. A mere summary of allegations – we think you are a fraudster, or a terrorist sympathiser – goes no way to meeting the basic standard. Yet under the Bill, the decisions on what is to be included in the summary – and what is to be ruled out – deliberately exclude the special advocate ( see clause 216 (6) ) and prevent him or her from representing their client in any way in “ approving, amending or updating’’ the summary. So much for substance, and for safeguards.
The safeguard role of special advocates has been deliberately limited in other ways. Under clause 235(2) they cannot bring their own proceedings – which is a further blow to the natural justice balance, since judicial supervision has been ruled out of Tribunal decisions involving classified information.
This farce reaches its zenith at clause 289, which not only orders the Court not to meddle – “it is not for the nominated judge to determine the matters described [earlier] but, wait for it, “ the classified information must be treated as accurate.” So, under this Bill, Parliament is proposing to tell the courts that the Crown’s rationale – say, for why someone continues to be held in detention – must be accepted by our judges as being true and accurate by definition, and is thus beyond the power of the courts to question! Hmm, now that’s… interesting.
In sum, the secrecy/security provisions of the Immigration Bill are like overkill. By ruling out any avenue for meaningful checks and balances, the process is virtually bound to end in error and injustice. “ Secrecy is not congenial to truth seeking,” US Supreme Court Justice Felix Frankfurter stated in a civil liberties case in 1951. “ No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss, notice of the case against him and the opportunity to meet it.” Exactly.
In one of its best passages, the Bill enshrines the UN Refugee Convention, the Convention Against Torture and the International Covenant on Civil and Political Rights within our domestic legislation. This is very welcome. In future though, it could be interesting to see if anyone seeks to test whether our planned use of secret information in immigration decision making contexts, and our planned use of diplomatic assurances and ‘ safe third country’ options in deportation situations, are actually compatible with those international commitments.
Before analyzing the biometric provisions, here are some short observations on other problem clauses.
A. As is well known, the Bill will scrap the four separate bodies that currently comprise our legal framework of immigration appeals. The renowned Refugee Status Appeals Authority is among the tribunals to be terminated. The Bill will collapse all four into the new Immigration and Protection Tribunal – which will just have to sort out the procedural overlaps between the two systems, as it goes. Unfortunately, clause 435 looks like it allows the new Tribunal to retrospectively inject classified material into cases already begun under the current rules.
What is less well known is that the Bill envisages ( at clause 197) that one person will customarily comprise the new Tribunal. It may not be the same one person, every time, as clause 195(1) indicates. The Chairman will a district court judge, and other members can be lawyers or seconded judges.
So, a rigorous and independent four – dimensional appeal system has been replaced by a single person serving as a ‘ Tribunal”. In Britain by contrast, the comparable body ( called SIAC ) must comprise a retired judge, an immigration law expert and a third person with expertise in security. No such experience is stipulated for its solitary New Zealand counterpart.
Moreover, while the RSAA could previously hand down independent and binding judgements on refugee status, the new Tribunal can have its rulings on refugee status cancelled (see clause 133) by the Immigration Service – and simply because ( 133 (1)(b) an immigration officer has decided to do so.
B. The Bill may codify the Convention Against Torture, but it then tries to sleazily drive around it. Keep in mind that the CAT and the Refugee Convention prohibitions against sending people back to face torture, death and persecution are absolute obligations on the host country, under international law.
Yet, amazingly, clause 122(b) tries to say that people can be deported if there is any part of their country, or any other place where people of their ‘ nationality’ might go, or any prior place where they lived, where such threats may not loom so large. Despicably, clause 122b also tries to allow deportation if the torture “ is not faced generally by other persons in or from that country. “ Meaning : if everyone else at home is being tortured, you’re be dead out of luck if you came seeking refuge in New Zealand – because you will have to prove you are being tortured worse than anyone else in the torture dungeons back home. This morally bankrupt clause is plainly illegal under UN conventions, and will have to be dropped.
C. Section 337 denies New Zealand citizenship automatically to children born in New Zealand, and instead assigns them the same immigration status as their parents. Logically, this means that if the child can’t subsequently file a successful citizenship application in the country of their parents’ birth – lets take a wild guess that the births registry in war-torn Somalia may not always operate at tiptop standards – New Zealand will require them to grow up as stateless persons.
On this point – and others regarding the treatment of children – one wonders what input Children’s Commissioner Cindy Kiro has had in the framing of this Bill. Unfortunately, the list of UN conventions codified by this legislation do not include the UN Convention on the Rights of the Child. Clause 294 of the Bill for instance, allows children under the age of 18 to be held in detention without warrant, for up to 96 hours. Interestingly, clauses 294 and 295 also endorse discrimination among young people aged between 16 and 18, on the basis of their marital status.
D. Clause 9 (f) forbids entry to New Zealand by anyone who has ever been removed, excluded or deported from another country. This draconian clause will kick in regardless of whether the reason why the person was previously excluded or deported was because they had run foul of a tyrant, or because some country flouted its international commitments to refugees. This clause utterly contradicts the spirit ( and maybe the letter) of the UN Refugee Convention.
There are other, equally disturbing clauses studded throughout the Bill. Even so… don’t we live now in a dangerous world post 9/11, where human rights are expendable? The defenders of the Immigration Bill will certainly say so. I disagree. For my money, I think Lord Simon Brown got it exactly right last October in a House of Lords decision ( see Secretary of State vs MB, UKHL 46, para 91) when he said : “ I cannot accept that a suspect’s entitlement to an essentially fair hearing is merely a qualified right, capable of being outweighed by the public interest in protecting the state against terrorism ( vital though of course, I recognize that public interest to be). On the contrary, it seems to me to be not merely an absolute right, but one of altogether too great importance to be sacrificed on the altar of terrorism control.”
Finally, privacy issues are a major element of the Immigration Bill. Identity theft and passport fraud crimes do require new and rigorous methods of detection – but in framing our response, the governing Bill also needs to ensure that the levels of privacy intrusion do not exceed the threat.
The major problem? While the Bill allows for the mandatory collection of biometric information from immigrants and – under some conditions, from New Zealanders as well – it lacks a set of procedures for the collection, use, storage, accuracy, and sharing of this information. To be fair, neither does the only equivalent piece of legislation I can think of that also deals in private biometric data – namely, the Passport Act – but that oversight does not justify repeating the mistake.
The obvious place to insert proper guidelines would be at clause 29, which deals with biometric information. Why do it? Mainly because the extent of the collection and use of personal biometric data that is being proposed under this Bill seems unparalleled for New Zealand. Guidelines on how to properly conduct this exercise are not just desirable, but necessary. How will it be stored, and for how long? Who, if anyone, will be able to check its accuracy? What other agencies, here and overseas, can be granted access to it? The Bill does not answer these questions – and I think, for safety’s sake, it should.
On the rare occasions when the Bill does try to talk about who can legitimately get shared access to private immigration information, you almost wish it hadn’t. At clause 267 for instance, the Bill allows for the sharing of immigration information with ‘providers of publicly funded services’ that hinge on a person’s immigration status – and where disclosure will help the provider to accurately assess the person’s eligibility, and their liability to pay.
Fair enough, some would say. The privacy problem arises however, because the phrase ‘ any publicly funded services ‘ is so sweeping that a person could well find that the private details of their immigration status are being broadcast to almost every conceivable public agency, including ones that the person would have no way of knowing, or anticipating.
This Bill is, in sum, a human rights nightmare. Next week, I’ll try to outline the provisions that affect detention, deportation, and business confidentiality. This is a complex Bill. It is also, IMHO, a needlessly bad one that puts secrecy and operational convenience ahead of being fair and just to the vulnerable people most likely to be affected by it. I hope that Labour supporters will reject this Bill, and will not simply blame Winston Peters for trying to capitalize on it – which he will certainly do. This ugly provisions of the Bill will provide the launching pad for New Zealand First’s election campaign.
Yes, Peters is reliably despicable on immigration issues. Yet this time, the bulk of the blame lies squarely with the Government. Unless the Bill is vastly improved by its sojourn in select committee, the new immigration legislation gives swinging Labour voters a compelling reason to take their vote elsewhere – or even to stay at home on election day, in protest at what their government has done.