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KNOWINGLY PROVIDING FALSE OR MISLEADING INFORMATION
- In June 2007, Cabinet noted that the Department was undertaking further work on the “reasonable excuse” defence for the offence of knowingly providing false or misleading information [CAB Min (07) 20/1, CAB Min (07) 21/5]. This is because what constitutes a “reasonable excuse” has been interpreted differently in the courts and has resulted in significant difficulties for the Department obtaining convictions. It is a particular problem in jury trial scenarios where defendants play on the sympathies of jurors and fabricate excuses in order to avoid prosecution.
- It is recommended that the “reasonable excuse” provision is removed from the offence of knowingly producing false or misleading document to an immigration officer. The proposal would remove a defence that is hampering the prosecution of non-citizens who knowingly seek to deceive, but would not prevent a judge from taking into account any mitigating circumstances during sentencing.
- It is noted that as a party to the Convention Relating to the Status of Refugees (Refugee Convention), New Zealand has an obligation to ensure that genuine refugees who provide false documentation or information are not penalised where they “present themselves without delay to the authorities”. Discretion is currently used in decisions on whether or not to prosecute failed refugee status claimants. In order to formalise this process, and mitigate any impact on genuine refugees from removing the “reasonable excuse” defence, I will direct officials to develop policy and prosecution guidelines to ensure that New Zealand’s international obligations under article 31.1 of the Refugee Convention continue to be fulfilled.
- Corrections notes that removing the “reasonable excuse” defence may impact on the prison population, depending on the number of effective prosecutions and sentencing decisions. Justice and MFAT do not support removing the defence. If the recommendation is agreed, both agencies would prefer a legislative provision be incorporated into the Bill deferring prosecution pending the outcome of any refugee status claim and disallowing the prosecution of refugees. Justice is of the view this would be the most appropriate approach in the New Zealand context to ensure compliance with the Refugee Convention.
- The Justice and MFAT approach would likely give rise to an increase in manifestly unfounded refugee status claims by non-citizens who knowingly seek to deceive and then seek to delay or avoid prosecution. While manifestly unfounded claims can be managed by the Department, any increase in them would have resource implications. The Justice and MFAT approach would also limit the Department's ability to prosecute refugees who provide false or misleading information in the non-border context, such as when providing information in relation to their claim, or during an interview with a determination officer. This provision of false or misleading information in these contexts is not protected by the Refugee Convention.
- In response to Justice and MFAT concerns, I recommended the insertion of an “avoid any doubt” clause that recognises that the offence in no way limits the application of Article 31.1 of the Refugee Convention. This would focus on the obligation to ensure that genuine refugees are not penalised where they “present themselves without delay to the authorities”.
- In a report commissioned by the UNHCR on non-penalisation of refugees, it was found that many States have no legislative provision implementing their obligation under article 31.1 of the Refugee Convention, and that there is instead “judicious use of executive discretion” . The report further noted that implementing the Refugee Convention is a matter for States themselves and that “both formal and informal or ad hoc procedures” are acceptable. Therefore, the development of policy and prosecution guidelines is consistent with the approach accepted by the UNHCR. It also recognises that failed refugee status claimants are not the issue with the “reasonable excuse” defence. They make up only a small percentage of the non-citizens the Department seek to prosecute and are not considered a problem in this regard.
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