Consultation
Immigration Act Review
FURTHER DECISIONS ON CLASSIFIED INFORMATION AND MANAGING SECURITY RISKS
REGULATORY IMPACT STATEMENT
Executive summary
In conducting the review of Part 4A of the Immigration Act 1987 (the 1987 Act) officials have identified areas that require further Cabinet direction prior to finalising the draft Immigration Bill. These include:
- the use and protection of classified information in the context of an appeal or during consideration of the need for detention (where classified information has been used), and
- the length of detention of a non-citizen, liable for deportation as a risk or a threat to national or international security, after all appeal rights have been exhausted.
This paper proposes:
- a prescriptive system for appeal where classified information has been used in an immigration or protection decision, and
- that where there was an immediate risk or threat to national or international security or to the safety of any person, a non-citizen could be securely detained until deported.
[Withheld under section 9(2)(f)(iv) of the Official information Act 1982.]
Adequacy statement
This RIS was prepared by the Department of Labour (the Department) and is considered by the Department to be adequate. Initial drafts of the RIS, drafted under previous RIS requirements, were circulated with the Cabinet paper for departmental consideration. The final version of the RIS in the new format was circulated to the Regulatory Impact Analysis Unit.
Status quo and Problem
In November 2006, in the context of the Immigration Act review, the Cabinet Business Committee (CBC) (with the power to act) decided that "classified information may be used in immigration and protection decision-making with safeguards..." [CBC Min (06) 20/14 refers]. CBC also agreed "that officials should report to the Cabinet Policy Committee on Part 4A prior to finalising the draft Bill for introduction to the House" [CBC Min (06) 20/14 refers].
In the review of Part 4A of the 1987 Act (which is ongoing) officials have identified that the new immigration legislation should prescribe the complete system for the use and protection of classified information, including in any court appeals. The November 2006 CBC decisions did not specifically address the use and protection of classified information in the context of judicial review or appeal to the High Court, Court of Appeal or Supreme Court. Clarity and prescription in the system will assist in reducing the amount and duration of prolonged litigation as seen in the Zaoui case.
Officials have also identified that an implication of the November 2006 CBC decisions on monitoring or detention is that where a non-citizen becomes liable for deportation as a risk or a threat to national or international security, has exhausted all appeal rights, and has no right to remain in New Zealand, they could not be securely detained longer than six months where they have not been deported [CBC Min (06) 20/14 refers]. This may have serious implications for national or international security.
Objectives
The objectives:
To enable classified information to be used in immigration and protection decision-making to ensure that New Zealand's interests are protected and advanced in decision-making processes, while maintaining an appropriate level of fairness.
To develop a modern monitoring and detention system that manages risk while ensuring the rights of the individual are balanced appropriately against the rights of New Zealand.
Alternative options
No substantive alternatives were identified.
Preferred option
Classified information - description
That the new immigration legislation prescribes the complete system for the use of classified information from initial decision to appeal (with leave) to the Supreme Court. The key features would include:
- enabling specially warranted and security briefed Judges of the High Court to access any classified information in determining warrants of commitment and appeals on points of law where classified information is used
- enabling the Judges of the Court of Appeal and Supreme Court to be security briefed to access any classified information to determine an appeal on points of law brought before them, and
- enabling the subject of classified information to have access to a special advocate to represent them in court proceedings.
Classified information - costs and benefits
The government
The preferred option would enable the government to be assured that the classified information system appropriately balanced the rights of the individual against the rights of the state in immigration and protection decision-making.
It is likely that the first use of the classified information provisions of the new immigration legislation, including those proposed in the Cabinet paper, will be tested through the Immigration and Protection Tribunal (the Tribunal) (where allowed) and through the courts. This is likely to have financial implications for government although it is difficult to predict to what extent.
Owners of the classified information
Experience shows that one of the most important safeguards for classified information is limiting the number of people who have access to it. The preferred option seeks to ensure that in all cases where classified information is used, the safeguards for the information to enable it to remain protected are prescriptive and appropriately balanced. Protecting the information will assure its owners that the information will not be publicly disclosed where it is used in an immigration and/or protection decision.
Non-citizens
The preferred option would enable the High Court, Court of Appeal and Supreme Court to access any classified information that may be of relevance to an appeal. This would ensure access to robust appeal for non-citizens where classified information has been used in a decision that impacts on their immigration or protected status.
The courts
Enabling the High Court, Court of Appeal and Supreme Court to access classified information would ensure that the Judges of these courts could properly consider any appeal brought forward where classified information is used.
Monitoring and detention - description
That the Immigration Bill provides a mechanism for monitoring and/or detaining those non-citizens liable for deportation by Order in Council as a risk or a threat to national or international security until they are deported (if this is longer than six months). Where the non-citizen is not a risk or a threat to the public interest, they could be released on conditions by the courts enabling the use of secure detention to be limited.
Monitoring and detention - costs and benefits
The government
The preferred option would enable the government to manage any risk a non-citizen liable for deportation as a risk or a threat to national or international security may pose. Where there was an immediate risk to national or international security or to the safety of any person, a non-citizen could be securely detained under a warrant until deported.
It is difficult to predict the extent of the financial implications of extending secure detention beyond six months for non-citizens who are a risk or a threat to national or international security. The proposal mirrors the status quo of the 1987 Act. Under the 1987 Act, the number of non-citizens currently deported as a security threat or suspect terrorist has been extremely small. There has been no case of extended detention for this reason.
The public
The preferred option would ensure that the public interest was taken into account in any decision on the management of a non-citizen who may be a risk or a threat to national or international security. This would ensure that the public would be protected from any risk the non-citizen may pose.
Non-citizens
Enabling the courts to consider the most appropriate form of management of the non-citizen would mean that their case is considered (and reviewed up to every 28 days) by an independent arbitrator.
Regular review of secure detention would ensure the rights of the non-citizen are upheld.
Implementation and review
The Immigration Bill is currently being drafted and is to be introduced to the House in early 2007.
Consultation
Stakeholder Consultation
Many submitters indicated strong opposition to the classified information proposals on the grounds that they contravene a person's right to a fair hearing and the principles of administrative and natural justice. These submitters were of the view that all prejudicial information should be fully disclosed to applicants if it is to be used in decision-making. Many submitters considered that:
- decision-making and review processes need to be transparent
- applicants should have access to special counsel
- applicants should be provided with at least a summary of the information to enable them to challenge that information, and
- reviews be undertaken by an independent body other than by the Inspector-General of Intelligence and Security or a member of the proposed tribunal acting alone.
These concerns were carefully considered in light of the small number of cases likely to be affected, and the range of safeguards proposed. The November 2006 CBC decisions provided for transparent process for the use and review of classified information and included the ability to provide a summary of any information used in an immigration or protection decision. Provisions for special advocates to be used in any appeals process were also developed. The preferred option builds upon these decisions to further address any concerns.
There was a significant amount of feedback on the detention proposals with many submitters expressing the view that detention should be used as infrequently as possible and for the shortest possible time. Concern was expressed that the detention system be consistent with New Zealand's national and international obligations and that the individual rights of non-citizens be upheld.
The monitoring and detention system proposed has been developed with particular regard to:
- sections 22 and 23 of the New Zealand Bill of Rights Act 1990 (NZBORA). These sections contain provisions relating to personal liberty, and the rights of persons who are arrested and detained, and
- the international conventions New Zealand is party to, such as the United Nations International Covenant on Civil and Political Rights, and the United Nations Convention Relating to the Status of Refugees (Refugee Convention).
The proposals put forward in this paper have been benchmarked against the:
United Nations Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment (UN Detention Guidelines). In particular, Principles Two and Four of the UN Detention Guidelines require detention to be carried out in accordance with the law and with judicial oversight, and
UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers (UNHCR Detention Standards for Asylum Seekers) which propose alternatives to the use of secure immigration detention based on consideration of the individual circumstances of each case.
Government Departments/Agencies Consultation
Substantial government consultation was undertaken as part of the original Act review work on classified information, review and appeal and monitoring and detention including with the Departments of Prime Minister and Cabinet and Internal Affairs, the Ministries of Foreign Affairs and Trade (MFAT), Health, Education, Economic Development, Transport, Justice, and Pacific Island Affairs, the New Zealand Qualifications Authority, the Tertiary Education Commission, the New Zealand Defence Force, Police, Customs Service, and Security Intelligence Service, the Inland Revenue Department, the Office for Disability Issues, Crown Law, the Legal Services Agency and Treasury. Te Puni Kokiri was also informed of the proposals. The chairs of the Refugee Status Appeals Authority, the Removal Review Authority, the Residence Review Board, the Deportation Review Tribunal, the Privacy Commissioner, the Office of the Ombudsmen and the Human Rights Commission were also consulted. No significant concerns were raised by agencies consulted on these proposals.
The chairs of the Refugee Status Appeals Authority, the Removal Review Authority, the Residence Review Board, the Deportation Review Tribunal, the Privacy Commissioner, the Office of the Ombudsmen and the Human Rights Commission were also consulted on the November 2006 paper.
The Departments of Prime Minister and Cabinet and Corrections, and the Ministries of Justice and Foreign Affairs, the New Zealand Security Intelligence Service and Crown Law along with the New Zealand Defence Force, Police, and Customs Service, were consulted on the draft Cabinet paper. Treasury was also informed.
The Ministry of Justice raised concerns about the provisions in the Immigration Act 1987 that allowed for ongoing secure immigration detention. A statutory limit has been agreed for most circumstances. The Ministry considers it unlikely that the courts will issue a warrant for ongoing detention under the new legislation where it is apparent that a non-citizen cannot be deported and supports the proposal for further work to be undertaken on mechanisms for managing security risk regardless of a person’s immigration status.
No other significant concerns were raised by agencies consulted on these proposals and they support the proposals being made in the Cabinet paper.