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Gordon Campbell on the Select Committee’s handling of the Immigration Bill

July 22nd, 2008

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OK, the Immigration Bill was reported back late yesterday from the Transport and Industrial Relations select committee. Some objectionable features have been changed ( see below) but the repellent core of the Bill remains. In particular, the security provisions still tilt the balance unfairly and unnecessarily – in favour of the state, at the expense of the individual’s rights to natural justice. No surprises there.

As reported back, the Bill still expands the use of classified information in New Zealand. In earlier posts here , and here and here I’ve tried to identify some of the Bill’s shortcomings. The original Bill for instance, conferred powers on public service CEOs and on the Police, to declare any information as classified, and thus immune from direct scrutiny by the people affected by it.

To that end, clause 5 (1) of the [original] Bill allowed for secret information to be anything that ‘in the opinion of the chief executive’ should not be disclosed. That phrase has now been deleted by the select committee. Information can no longer be decreed to be secret at the whim of any and all public service CEOs. Good.

However, a lot of CEOs WILL be granted that power. A few weeks ago, I posted that the select committee would probably devise a list of the agencies to be entrusted with the power to designate information as secret, and that’s exactly what the committee has done. The select committee’s list comprises security, defence, law enforcement and border agencies, plus MFAT and the Department of Internal Affairs.

That’s a comprehensive tally. Any such list entails… 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 want so many state agencies operating under a veil of secrecy ?

The process kicks in if the CEO decides that disclosure might prejudice security or our international relations, inhibit the Police or the listed agencies in the carrying out of their operations or functions, 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 get the urge to rule that the information doesn’t really merit its classified status and should thus be released – 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 of the listed agencies to over-rule the courts, and keep the lid on. Clause 289 even forbids the courts from querying whether the secret information is accurate – though to be fair, the new clause 217 (2c) does concede that the Tribunal can ignore any secret information that it regards as not being credible.Thanks a bunch.

Essentially, the select committee has tinkered, rather than done remedial surgery. The Zaoui case proved it was hard enough for the SIS – the alleged experts – to get their facts straight and draw correct inferences from them. Now, some fourteen government agencies are being given the power to demand that their hearsay be treated as gospel.

Remember, these powers are being extended in situations where the outcomes for the migrants and their families are as serious as the penal outcomes are under criminal law – and yet lower standards of evidence and due process are being promoted by this Bill, for how the government should treat vulnerable people who have broken no laws.

The detention provisions in this Bill are extremely harsh. A new Clause 271A ( inserted by the select committee ) rules out bail for any offence whatsoever under the Bill. So much for the ancient right of habeas corpus. Also, another new clause at 285 (10) makes detention potentially indefinite by preventing the courts from considering the length of time that the person has already been detained as a factor in whether they should be released.

These are the kind of powers you would expect to see the Bush administration wielding over inmates at Guantanamo Bay. In Britain, the law lords in 2004 expressly ruled out the use of immigration law in contexts that result in indefinite detention – but this Bill virtually enshrines it.

In reality, those clauses seem to have been written largely with the Iranian Christian detainees in mind, in order to sanitise their indefinite detention. Some of these Christian converts have been refusing to sign the travel documents that are necessary to facilitate their return to a country that persecutes ( and in some cases, executes) converts from Islam. The Bill is trying to ensure that our courts cannot challenge such detention, on any human rights grounds that treat the length of their time in captivity as a mitigating factor.

It is also disappointing to see the select committee has not amended or dropped the provisions in the Bill – see clause 5 (2) and clause 216 (4) – that enable all details of the classified information to be with-held in order to protect sources. Knowing something about the sources being relied upon is a valuable check against injustice and character assassination. In 2005 for instance Winston Peters made statements about Iraqi migrants without identifying his sources, leaving the victims without recourse, and insisting the charges were without foundation.

That’s why from the outset, people have a right to know not only what they are being accused of – but also who may be feeding allegations about them to politicians and immigration officials. This is particularly important in immigration contexts. Allegations against business migrants and refugees can be made by business rivals, or by disgruntled spouses and relatives. People can also dob in other migrants, in the hope of winning brownie points from the authorities.

In some respects, the select committee has made things worse. Formerly, any decision reliant on secret information would be referred automatically to Tribunal hearings ( see original clause 30 (20 b) and the entire clause 137) and such information could not be used in the original determination at the border. Now, the select committee has recommended that secret information can and should be used by officials to make initial decisions – whjch, incidentally, will inevitably multiply the number of immigration officers with access to it. Routinely with this Bill, secrecy is guarded quite loosely when it serves the government’s convenience to do so – yet it must be treated like kryptonite whenever the affected individual seeks to gain fair access to it.

The change mentioned above will – it seems to me – throw the onus onto the affected person at the border to mount an appeal. It takes away the protection of knowing that when secret information has been used to make decisions, the Tribunal safeguards ( such as they are) would kick in from the outset.

In sum, the select committee has made only minor improvements, while failing to install effective safeguards around the designation of classified information. In the section of the Bill on special advocates, it has also merely tinkered with how the information should be handled.

Special advocates

Once information has been declared to be secret, a cumbersome system involving court appointed lawyers ( called special advocates ) then swings into place. The special advocate get to view and contest the secret information on behalf of their ‘client,’ but only in virtual isolation from them.

This is a flawed system that is intended to lend a figleaf of legitimacy to the use of classified information. It fails however, to meet the needs of natural justice. The appellant, for instance, is free to brief the special advocate – but only during the period before the advocate finds out what information they really need to know from the client. Once the secret information has been seen, the special advocate js forbidden to have any direct contact with the “client’ – who is of course, the person best placed to rebut or correct the secret information.

Kafka-esque doesn’t begin to describe it. The person affected has to guess what the immigration service might be thinking, and gamble that the briefing they give their special advocate will eventually turn out to be relevant to the information being relied on by the authorities. Literally, it is like shooting in the dark. Personally, I don’t think peoples’ lives and wellbeing should hinge upon guesstimates from one side, about the hearsay being relied on by the other.

For this reason in Canada and the UK, two separate parliamentary committees have recently recommended that the special advocate be allowed to talk to the “ client” AFTER they have seen the secret evidence. The reasoning being…it should surely not be beyond the ability of a special advocate to question his client without spilling the beans about the secret information. Unfortunately, the select committee has refused to consider this option. The sanctity of secret information has been given a greater priority.

So, what tinkering has the select committee done? For starters, the clause that forbade a special advocate to initiate court proceedings on behalf of their client has been scrapped, and even reversed. Such court actions are now explicitly allowed – at the new clause 235(2) – and that’s a good thing. As I posted previously, the original clause would probably have violated the legal profession’s code of ethics, by forbidding a lawyer to take effective action to defend their client from an injustice.

Still, I don’t think the select committee has really thought this one through. If the special advocate can initiate court actions, it surely means they are also free to research, consult about and contest the secret information – in short, to do all the things a good defence lawyer would be expected to do. Question : why would that be less likely to lead to disclosure of the secret information than simply talking to the client? Or does the select committee think the special advocate can reasonably be expected to initiate court proceedings in an information vacuum? Just asking.

The select committee has also tried to put in (laughably inadequate) safeguards. A new clause 32A requires that the manner in which secret information is provided “will not give a misleading view of the information supplied. “ Wow, that’s sure to work – just as it did so well in the Zaoui case. Bureaucrats never dig in and defend the indefensible, right?

The select committee also says at clause 32(1) (b) that any favourable secret information held must also now be divulged. That’s great – assuming of course, the original CIA file being relied on also includes the information that the suspect was always good to his mother, and kind to animals. Normally, security intelligence information is resolutely negative, because it is about the detection of threats. It is also routinely second and third hand gossip, especially by the time it reaches New Zealand.

At best though, these new ‘positive information’ provisions may help in some way to prevent the authorities from distorting their case. A better way of reducing that risk would be to limit the use of secret information, and not to expand the government’s reliance on it – as this Bill does.

What should have been done? Well, IMHO, secret information should never be used in refugee and asylum determination cases. It should only be used when a threat to national security has been detected – this making it a reactive measure, not something relied on from the outset to make refugee and asylum determinations. It is not as if our borders lie unprotected. Thanks to the Advaneed Passenger Screening System, many people who could otherwise legitimately claim refugee and asylum status, are being stopped from even getting on an aircraft.

However, since this Labour government seems hellbent on importing secret information and the special advocate system from the Zaoui case into our mainstream immigration decision-making, added protections are necessary. The legislation should be amended to allow the special advocate to consult his client – under feasible conditions to protect the information – AFTER the secret evidence has been accessed by the special advocate. The questioning skills required – get the rebuttal information you need, but without entirely spilling the beans about the security information – are surely not beyond a senior, security cleared special advocate, are they ? No.

What else has the select committee suggested? A sample :

1. Torture. Thankfully, the original clause 122b, that daftly required appellants to prove they faced a worse risk of torture than would ‘generally’ apply in their home country, has been scrapped by the select committee. That clause violated the Convention Against Torture – which the Bill elsewhere says it endorses – since the CAT provides an absolute right to protection whenever ‘there are substantial grounds for believing that he would be in danger of being subjected to torture.’

The Bill’s new wording makes our recognition of the CAT even stronger. The new wording not only drops the absurd requirement that the person must prove they’re worse off than other habitually tortured people in their homeland – it replaces it at clause 120 (3) by importing clause 3:2 of the Torture Convention, virtually wholesale.

Namely, the authorities must “take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” Which pretty much reverses the thrust of the earlier draft, and in a good direction. Instead of having to prove that mass violations of a worse order exist, the appellant can cite their existence to back up his or her claim to special protection, which exists regardless of the general situation.

The only concern I have here is the new clause 120(2) which denies protection if the appellant is able to access ‘meaningful domestic protection’ in their home country. Even this new wording though, is better than the one in the original Bill which required people to demonstrate they faced the risk of torture “in every part of his or her country” – thus raising the prospect of people being returned to a supposedly safer geographic location back home.

2. Biometric Information. As I pointed out a few weeks ago, clause 29 of the original Bill lacked any rules about the collection, storage, use, accuracy, access, sharing and retention of biometric information compulsorily collected under the Bill.

The select committee has taken such concerns on board. It has rewritten and vastly expanded clause 29, and put in place a regime for handling biometric information, along lines recommended by the Privacy Commissioner. Regular ‘privacy impact assessments’ will also be published (see clause 29(4) a) on the Internet.

A new clause 29A makes it clear that biometric information may be collected by an automated system, or by an immigration officer. With touching faith, the select committeesays that “ this should ensure any biometric system is as secure, efficient and effective as possible.” (Unless the equipment malfunctions or there is human error. That never happens, right?) I cannot see any provisions in the new 29A for testing the accuracy of the information collected.

Frankly, it would also be desirable if there was a sunset clause specifying that this biometric information cannot be retained for any longer than say, three years. That should be sufficient for any genuine border protection purposes – unless of course, the real purpose is to create a widespread and enduring surveillance system, by using the biometric data that has been compulsorily acquired from travelers, and thus create linear records of where people have travelled, and when. If surveillance is the intention, we need to be told so. A sunset clause would winkle that out.

In an earlier post, I also pointed out that the biometric definitions at clause 4 (1) concerning compulsory photographs carried the potential for the invasion of bodily privacy. Relevant, given the Immigration Service’s potential interest in making photographic records of body tattoos, distinctive moles or birthmarks. Thankfully, the select committee has responded, and the new clause 4(1a) says explicitly that the biometric data photograph can be of only ‘all or part of the person’s head and shoulders.’

The tourism industry may still have misgivings about the new clause 110A, that calls for the collection of biometric information from people leaving New Zealand. Is identity fraud such a pressing problem that the Immigration Service have to ensure the last memory that every visitor will have of their New Zealand holiday or business trip will be of having biometric information collected from them under compulsion at the border – either by a machine, or by an immigration official ?

3. Identity. As a citizen of New Zealand, you might think that you enjoy an enduring right conferred by birth ( or by naturalization) to leave and enter New Zealand, and to be in this country at any given time. Well, you would be wrong. The select committee has recommended that clause 7 of the Bill be amended to make it explicit that citizens must establish their identity and prove their citizenship in order “ to access that right….[and] establish their right to be in New Zealand as citizens.”

The intention is obvious, but the execution is utterly ham-fisted. According to the Bill, our right to be in New Zealand is conditional, and accessible again by us ( once we travel overseas) only at the discretion of an immigration official. This is quite a good example of how the post 9/11 world ( and the desire to identity potential threats) has subverted everyone’s rights I look forward to hearing Labour MPs telling voters they now need to jump through extra bureaucratic hoops before they can be allowed to ‘access their right’ to be in New Zealand, regardless of whether or not they carry a New Zealand passport. Clause 7 would be less objectionable if it treated the document check as confirming a right, rather than bestowing one.

Anything else? I’m still appalled that immigration officers have been given the power to detain people for four hours without warrant. That power is ripe for abuse, and no evidence has been presented as to why it is an operational necessity. Nor has evidence been offered as to why the Police powers of detention need to be been extended from 72 hours to 96 hours under this Bill. In both cases, its juystr a power that officials would like to have, and politicians have conceded it.

Curiously, the select committee has continued to allow discrimination against minors under clause 49, which requires a parent or guardian’s consent to a visa application. Surely, if as the select committee claims, the real intention of the clause is to prevent exploitation by third parties, that could be stated without perpetuating the discrimination. It is relevant. Last year, 22% of all refugee status decisions made by the Refugee Status Appeals Authority involved minors.

One thing that the select committee has tried to resolve is cwhen (a) migrants can offer false identity and travel documents for valid reasons of escaping from persecution, and (b) when the same process is invalid, and simply fraudulent. One of the enduring myths of the Zaoui case was that he was a bad guy because he came here on false documents. The morons in NZ First and on talkback radio helped to whip up social hostility towards Zaoui on those bogus grounds.

In fact, the inevitability that genuine refugees often need to resort to false travel documents has been recognized by the UN since 1951, and the Refugee Convention explicitly forbids governments to discriminate against refugees on that basis The key step is that they should “present themselves without delay to the authorities” upon successfully entering a country of refuge. That is prccisely what Zaoui did, following the UN rules to the letter.

Clearly, the Immigration Bill wants to nail people using false documents fraudulently – without jeopardizing refugees using false documents legitimately. That’s why the select committee has made some changes at clause 305 (1) (b) – it has scrapped the phrase “ with reasonable excuse” that people could formerly use as a defence for using false documents, and has simply stated that the 1951 UN Refugee Convention’s relevant Article 31:1 will not be affected in any way.

Their rationale for the change is quite revealing. The select committee says in its commentary on the Bill (p34) that the department was having “ significant difficulty obtaining convictions.” Once again, administrative convenience is the priority – and the expectation is that convictions will be easier to get in future, because people will find it harder to convince the authorities. Taken together with other provisions, it is clear that New Zealand is intent on shutting the door to asylum seekers by all means available.

Finally and lamentably, the select committee has missed its opportunity to make it explicit that the person affected by secret information is entitled to a summary of the info – and not simply to a summary of the allegations derived from it. There can be a vast difference. If the summary is meant to go some way towards meeting natural justice rights, it has to enable the gist of the case to be inferred.

This point is crucial to the person affected. The summary offers the only tangible clue as how they should go about briefing the special advocate. Unfortunately, a summary of the mere allegations can easily be phrased to obscure the information at stake. Therefore, it would have been preferable if the select committee had directly imported the wording of the relatively high standard of disclosure set by the Court of Appeal and Supreme Court rulings ( in the Zaoui cases) into the legislation. As things stand, the Bill has substantially lowered the standard of disclosure required.

All up, the Immigration Bill remains a human rights nightmare, and a deterrent to Labour activists. The parliamentary battle now shifts to the floor of Parliament. The only way of stopping the Bill – given that the centre right parties are totally disinterested in defending the human rights of the individual – is if Labour can be convinced to drop or defer it.. At this late stage, perhaps the only way of getting the government’s attention would be if Labour activists threaten to withdraw their labour on election day.


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