Previous | Contents | Next

DETENTION AND MONITORING

Managing non-citizens who hinder departure

63. At a high level, Cabinet agreed that the current system for ongoing monitoring and detention that enables the courts to order the release of a non-citizen on conditions, or to authorise their detention under a warrant, be continued [CBC Min (06) 20/14]. However, the detention and monitoring system in the Bill is less stringent than the 1987 Act.
64. Cabinet also agreed to a six month maximum limit on detention of non-citizens who, having exhausted all appeal rights, are liable for deportation [CBC Min (06) 20/14]. After this six month period, non-citizens who cannot be deported through no fault of their own will be released. Only non-citizens who deliberately hinder their departure may be detained longer than six months.
65. In the first six month period there is a presumption of detention for non-citizens who hinder their departure. However, after six months, the Bill provides the courts with the discretion to issue a warrant of commitment (warrant) for their further detention. This discretion could pose a risk to the integrity of the immigration system. It diminishes the incentive for non-citizens to cooperate in the deportation process, as they can seek to secure their release prior to deportation and therefore achieve access to the New Zealand community.
66. It is recommended that the Bill be amended to partially restore the status quo of the 1987 Act so that, where a warrant is sought, except in exceptional circumstances, there is a presumption for the detention of non-citizens who:
    1. claim refugee or protection status after they are served with a deportation liability notice, or who are liable for arrest and deportation, and
    2. deliberately hinder their departure.

Length of time as an “exceptional circumstance”

67. A key risk to this proposal is that, in two cases, the courts have determined that the length of time spent in detention itself constitutes “exceptional circumstances” under which a non-citizen may be released from detention. In light of these decisions, non-citizens may choose to hinder their departure and “wait out” time in detention, in order to create an “exceptional circumstance” to justify their release or to achieve an immigration outcome.
68. The courts play an important role in monitoring the reasonableness of detention, providing independent oversight through the warrant process. It may be appropriate, however, to provide the courts with clearer guidance as to Government’s intent in managing non-citizens who hinder their departure. This could be done by excluding length of detention from being an “exceptional circumstance”. Unless other exceptional circumstances arose, this would generally ensure that a non-citizen could be subject to detention until they ceased hindering their departure and were deported from New Zealand.
69. If Cabinet agrees, excluding “length of detention” from being an “exceptional circumstance” for non-citizens who hinder their departure, this will be recommended to the Committee. It is noted that oversight of detention would continue through the warrant process, and non-citizens would continue to be able to challenge their detention through habeas corpus proceedings and substantive appeal under the District Courts Act 1947. They would also be able to seek judicial review of the decision by the Department to seek renewal of their warrant.
70. Justice advises that the recommendation may be inconsistent with section 22 of the BORA which affirms the right to protection against arbitrary detention. MFAT notes that if the recommendation is inconsistent with the BORA, it is likely also to be inconsistent with Article 9 of the ICCPR . A final determination of consistency could not be made until provisions were drafted for the Bill. The Department will work with Justice if provisions are drafted for the Bill to endeavour to ensure consistency with the BORA (and ICCPR). MFAT will be consulted on any consequential impacts on our international treaty obligations.
71. Police were supportive of both proposals. The Department of Corrections (Corrections) supports reinstating the effect of the 1987 Act but notes that it may, in turn, impact on the prison population. Given the small number of non-citizens in immigration detention, and that the problem of non-citizens who hinder their departure is limited, any fiscal impact on the overall activities of Corrections is likely to be negligible.
72. One way of limiting the impact of immigration detention on both Police and Corrections is to enable detention to be given effect outside their facilities. During the consultation phase on the Immigration Act review: Discussion Paper, a number of submitters, including the UNHCR, expressed concern about the negative impacts of immigration detention in Police and Corrections facilities. The Auckland District Law Society, in its submission on the Bill, submitted that the Bill should make provision for separate immigration detention facilities.
73. It is recommended that a person in charge of an “approved premises” for the purpose of immigration detention (and any person acting under the authority of that person) be authorised to detain non-citizens, whether they are detained with or without a warrant. This proposal is supported by Police, Justice, MFAT and Corrections. Currently, the Bill permits the person in charge of an “approved premises” to detain a non-citizen under a warrant, but not within the 96 hour period of detention without a warrant. This is inconsistent with the policy intent behind the November 2006 CBC decision that the Department scope options around immigration detention [CBC Min (06) 20/14].

Other detention and monitoring recommendations

74. It is recommended the Bill be a code for the immigration detention of non-citizens. If it is not, there may be instances where the courts, in considering a warrant application, could exercise their jurisdiction to grant bail to a non-citizen. This power could be used to undermine the specific provisions for immigration detention and monitoring under the Bill, which would be contrary to the policy intent.
75. It is also recommended that Cabinet rescind the decision “where a non-citizen has exhausted all appeal rights and has no right to remain in New Zealand, and they have not departed after an ongoing period of secure immigration detention of 12 months, the Bill require the courts to consider ordering the non-citizen to either:
    1. cease the action preventing their departure being facilitated, or
    2. undertake an action in order to facilitate their departure [CBC Min (06) 20/14].
76. The provisions for the courts to order a non-citizen to cooperate, and to find them in contempt of court if they fail to do so, are unlikely to be used by the courts. This may result in a form of administrative detention becoming penal detention, which could be considered inappropriate. The provisions are also inconsistent with the proposal to partially restore the status quo.

---

Previous | Contents | Next