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Border Security Bill (Consistent) (Sections 5, 22, 23, 27) [2003] NZBORARp 20 (2 May 2003)
Last Updated: 4 November 2020
Border Security Bill
2 May 2003
Attorney-General
Border Security Bill PCO5147/13
Our Ref: ATT114/1124(19)
- I
have considered the Border Security Bill for consistency with the New Zealand
Bill of Rights Act 1990 ("BORA"), with the assistance
of Andrew Butler, Crown
Counsel. In my view, there is no BORA inconsistency in relation to any provision
of the Bill.
Overview of Bill
- The
Bill amends the Customs and Excise Act 1996 ("the 1996 Act") and the Immigration
Act ("the 1987 Act"), with the purpose of enhancing
border
security.
Amendments to the 1996 Act
- The
amendments to the 1996 Act include tightening up the definition of "goods
subject to Customs control"; strengthening provisions
concerning advance
notification of intended arrival of a craft in New Zealand and the information
to be provided on arrival of a
craft; providing new powers to Customs to access
information related to travel held on databases etc by people involved in the
commercial
international travel business (eg airlines, travel operators, etc);
extending the power of Customs' officials to question persons
at the border
about identity, address, travel movements etc; extending powers of search in
relation to vehicles and goods, examination
of goods, detention of persons and
goods; as well as creating new offences related to these new powers. All of the
new provisions
have been considered for BORA consistency and all are considered
to be consistent.
Amendments to the 1987 Act
- The
amendments to the 1987 Act include strengthening the provisions concerning the
information to be provided to Immigration by an
international carrier; allowing
for Immigration to make immigration decisions (a) prior to passengers boarding
overseas and (b) by
means of an automated electronic system; strengthening the
provisions around provision of information by persons seeking admittance
to New
Zealand; as well as creating new offences related to these new powers. In my
view these amendments to the 1987 Act are not
inconsistent with BORA.
- In
the rest of this advice I set out my reasons for concluding that the new powers
given by the Bill are not BORA-inconsistent. I
deal first with the relevant
amendments to the 1996 Act and then with those to the 1987
Act.
BORA Issues - Amendments to the 1996 Act
- In
this section, I will address:
6.1
Provisions in the new Part 3A dealing with Customs access to, and use of,
information about
border-crossing goods, persons and craft.
6.2 The protection from liability conferred by the
new s 38O.
6.3 Provisions conferring on Customs an enhanced
power to question and detain.
I deal with each in turn.
Part 3A - access to information about border-crossing goods, persons and
craft
- A
new Part 3A is to be inserted in the 1996 Act by clause 8 of the Bill. The
purpose of the new Part 3A is to give Customs officials
routine access to
information about goods and craft travelling into or departing from New Zealand
that is held by persons and firms
operating in the travel industry ("travel
industry operators"). It will also give routine access to travel-related
information held
about border-crossing persons at and around the time that they
cross the border; however, access to travel-related personal information
in
other situations can be obtained only under a search and viewing warrant, or
under an emergency process that is subsequently validated
by warrant.
- Access
to the information described above will enable the authorities to, for example,
cross-check the accuracy of information provided
by travellers, or pursue
queries in relation to any security threat that a particular person may pose to
New Zealand.
- Because
this scheme involves compulsory access to information, including personal
information, it impinges upon reasonable expectations
of privacy in relation to
that information which members of the public, and travel industry operators,
would have. There is, therefore,
a prima facie infringement of s 21 BORA, which
protects everyone against unreasonable search or
seizure.
Information in relation to craft and goods
- To
the extent that the new provisions allow Customs authorities wide access to
information held by travel industry operators about
craft and goods, I consider
that any infringement of s 21 BORA is a justified limit in terms of s 5 BORA.
The transportation of goods
and the operation of a craft internationally both
involve participation in a heavily regulated field and, more importantly,
involve
only marginal intrusions on expectations of privacy since little
personal information is involved. In addition, routine access to
such
information is important to enable Customs to perform its functions
effectively.
Information in relation to persons
- Access
to information held by travel industry operators about individuals is in a
different class. At present, the information compulsorily
required to be
provided at the point of entry by Customs and Immigration authorities is
relatively confined, requiring name, address,
date of birth, nationality, craft,
passport details and so on (see current s 279(b)). The intent of new Part 3A is
to substantially
broaden the range of information that can be accessed,
including, for example, previous history of travel movements (internal and
international), methods of payment and seating arrangements. Such information
can be used to build a more complete individual profile
of travellers. In this
regard, I note that the commentary to the new Interim Rule issued by the United
States Customs Service
("USCS")[1] states that
an airline's automated Passenger Name Record ("PNR") database "may consist of 5
data elements or in excess of 50 data
elements, depending upon the particular
record and carrier". In short, a substantial amount of travel-related personal
information
may be held by a travel industry operator and could reveal
significant information about aspects of the lifestyle of the person in
respect
of whom it is held.
- Allowing
law enforcements authorities such as
Customs[2] open or
unrestricted access to personal information stored by travel industry operators
would constitute a substantial departure
from the limits normally placed on the
activities of such agencies and would amount to a significant incursion on the
right of people
within New Zealand to be left alone. In my view, allowing open
access to personal information (even if only personal information
related to
travel) without restriction (e.g., without any requirement of reasonable belief
or suspicion of wrongdoing by the person
whose personal information is being
sifted or without any temporal restriction) could not be a justified limit under
s 5 BORA on
the right to be free from unreasonable search and seizure guaranteed
by s 21 BORA.
- At
the same time, however, it is well recognised that persons who engage in
international travel and cross international frontiers
can legitimately be
required to sacrifice aspects of their privacy in return for the ability to
travel internationally and cross
borders. In other words, at and around the time
of travel, expectations of privacy are lower: see eg R v Simmons [1988] 2 SCR
495. Moreover, I accept that recent developments in anti-terrorism and border
security practices suggest that the availability of information
to Customs and
Immigration officials in advance of a person's arrival in New Zealand, or in
advance of a person's departure from
New Zealand, will enable officials to make
more meaningful assessments of the security and other risks that a particular
person or
persons may pose to New Zealand and to other countries with whom New
Zealand is co-operating in maintaining international security.
- I
also note that since the events of 11 September 2001, the travel-related
personal information acquisition powers of many customs
and immigration
authorities worldwide are being reviewed and augmented. The USCS has issued an
Interim Rule which requires airlines
to provide the USCS with electronic access
to any and all PNR data elements concerning the identity and travel plans of a
passenger
in relation to any flight leaving from, or landing in, the United
States, to the extent that the carrier does have the requested
data elements in
its reservation system and/or departure control
system.[3] More
recently, the US Immigration and Naturalization Service ("INS") has proposed a
new rule (in terms of the Enhanced Border Security
and Visa Entry Reform Act
2002) to require the submission of arrival and departure manifests
electronically in advance of arrival
in/departure from/the
US.[4] Similar patterns
of change to border control legislation are observable in
Australia[5] and
Canada.[6]
- The
approach adopted by an overseas government as a response to perceived terrorist
threats should not necessarily affect the weighing
exercise to be undertaken in
New Zealand for BORA-consistency purposes. However, given that s 5 BORA refers
to limits that are reasonable
in a "free and democratic country", it is
legitimate to have regard to what comparable states are doing and regard as
necessary in
this field.
- Against
this background, I believe that there is an important distinction between the
position of people at or close to the time they
enter or depart New Zealand, and
that of people who have entered or departed at some point in the past. In my
view, it is BORA-consistent
for Customs authorities to have routine access to
travel-related information held by travel industry operators about people who
are
travelling to/from New Zealand on the date of their arrival/departure and
for a penumbral period around their arrival/departure dates.
That recognises the
importance of the decision that has to be made at the border, enabling the
authorities to take action when it
matters most.
- Beyond
that, however, the usual protections of a warrant procedure should apply: when
one moves away from immediate border security
and immigration assessment needs
into accessing information held in respect of travellers who have been processed
and have entered,
or left, New Zealand, there is no convincing reason why the
traditional protections for personal information should not remain in
place and
be observed. Moreover, any scheme permitting access to personal travel-related
information must contain sufficient protections
(for example, by way of
definition of the information that can be searched and seized and the
circumstances in which search and seizure
can occur) to ensure that any
interference with expectations of privacy is, in all the circumstances,
reasonable. In my view the
scheme created by new Part 3A meets these
requirements. I discuss the scheme in more detail
below.
Information which may be accessed
- By
virtue of new s 38E(1) a "person concerned in the movement of goods, persons or
craft"[7] must give
Customs access to information that that person holds "for the purpose of
facilitating another person's travel to, or departure
from New Zealand".
Information about border-crossing persons includes, but is not limited to, that
person's name, date of birth,
place of birth, nationality, sex, passport
details, contact details, identity of craft on which the person has travelled/is
travelling/intends
to travel, where the travel booking was made, date of travel
booking, whether the person has checked baggage, etc (see new s 38E(3)).
- Section
38F(3) makes it clear that, as regards the employees of persons concerned in the
movement of goods, persons or craft, Customs
only has access to information held
about that employee which is of a kind also generally held in relation to
passengers. In this
way, travel industry employees, as a class, are not open to
more scrutiny of their personal information than members of the general
public.
This is an important limitation on the breadth of the information-accessing
power.
- The
new ss 38H-L place further limits on the power of Customs to access information
held by persons concerned in the movement of goods,
persons and craft where that
information relates to border-crossing persons. The detail of those sections is
complex, but can be
summarised as in the following
paragraphs.
Accessing personal travel-related information in
respect of "current travel"
- Customs
can search for information held by a travel industry operator in order to
determine whether it includes information that relates
to "current travel" and
is relevant to a specified search criterion (or criteria) provided by Customs.
"Current travel" is defined
to mean travel that has occurred within the last 14
days measured from the date of the search or that will occur within the next
14
days after the search begins. Arrival/departure must be in/from New Zealand.
(See new s 38H(3)).
- Access
to information about current travel is unrestricted, ie there is no warrant
requirement nor is there need for reasonable grounds
to suspect any offending
has occurred or any breach of border security will be committed by any of the
persons whose personal travel-related
information is accessed. It is anticipated
that this power will be used routinely in order to screen recent or imminent
travellers
in order to assess the border security risk that they pose to New
Zealand or other countries with which New Zealand co-operates.
- Where
a Customs search reveals that a person will be travelling to New Zealand within
the next 14 days, or has travelled to New Zealand
during the last 14 days
Customs will be entitled to access all information held by travel industry
operators, in relation to that
traveller, regardless of the age of that
information (see new s 38I). In other words, once a person is within the
"current travel"
window, all personal information held by a travel industry
operator in relation to that person can be accessed by Customs.
- In
my view, access to this breadth of personal information is reasonable and
appropriate during the short period surrounding a person's
international travel.
As noted above, a person engaged in international travel has diminished
expectations of privacy, related to
the need for effective border security
tasks, such as immigration screening, customs assessment, criminal offending
risk targeting
and security risk assessment.
- Moreover,
if Customs access to information by current travellers were restricted to the
particular travel that a traveller engaged
in for the purposes of coming to or
departing from New Zealand, Customs and other law enforcement authorities would
not be in a position
to make sensible border security risk assessments. It is
only with the availability of a pattern of travel-related information that
useful information-sifting can take place.
- Further,
if restrictions were placed on the information that could be accessed by
reference to the age of that information, that may
make it possible for persons
to "hide" their personal travel-related information to do soby splitting up
their travel into separately
ticketed legs.
Accessing personal
travel-related information in respect of travel other than "current travel"
- In
terms of the new Part 3A where Customs wishes to access information held by
travel industry operators about a person who is not
engaged in current travel,
it can only do so either under a search and viewing warrant (see s 38J) or, in
emergency situations, by
accessing the information without such a warrant (see s
38K). In the latter case, however, Customs will have to destroy any information
which it has collected through emergency access if it does not obtain validation
of that access from a Judge by way of an application
for a search and viewing
warrant within 72 hours of the emergency accessing (see 38K(5)).
- The
detail of these two schemes follows:
28.1
Where:
28.1.1 the Chief Executive of Customs considers that there are reasonable
grounds to suspect that there exists a border security risk
or threat (defined
in new s 38B(1)) or that a relevant offence (defined in new s 38J(6)) has been,
is being, or will be committed;
and
28.1.2 Customs wishes to search information held by travel industry operators
to determine whether it includes information that is
relevant to search criteria
specified by Customs;
28.1.3 the Chief Executive may, by application in writing made on oath, apply
to a District Court Judge for a search and viewing warrant
(see new ss 38J(1)
and 38J(2)). In contrast to, say, the Summary Proceedings Act 1957, s 198, where
a warrant can be issued by a
court registrar (or deputy registrar) or a Justice
of the Peace, only a District Court judge can issue a search and viewing warrant
under Part 3A.
28.2 The warrant can authorise the carrying out of a search within 14 days
after the day on which the warrant is granted and allows
the disclosure to
Customs of any information relevant to one or more of the search criteria
specified by Customs, but of no other
information. The application must give
details of:
28.2.1 the reasonable grounds to suspect;
28.2.2 the information available to Customs that gives rise to those
reasonable grounds to suspect;
28.2.3 the search criteria which Customs wishes to use; and
28.2.4 whether the search is to be of all, or of one or more specified parts
of, the travel-related information held by persons concerned
in the movement of
goods, persons or craft (new s 38J(3)).
28.3 The Judge may only grant a warrant if satisfied that the "reasonable
grounds to suspect" requirement is met and that the search
criteria specified by
Customs are reasonably related to the information available to Customs that
gives rise to those reasonable
grounds to suspect (see new s 38J(4)).
28.4 Access to non-current travel information without a warrant can be had in
emergency situations under s 38K. The emergency power
is closely
circumscribed.
28.4.1 The "reasonable grounds to suspect" standard contained in s 38J(1)
must be met.
28.4.2 The Chief Executive must consider that if an application for a warrant
were to be made a District Court Judge would grant it.
28.4.3 The Chief Executive must consider that delaying a search until a
warrant could be obtained would create a real risk that the
countering of the
risk or threat to border security, or the prevention, detection, investigation,
prosecution or punishment of the
relevant offence, would be frustrated (new s
38K(1)).
28.5 Where the Chief Executive does act without a warrant in an emergency
situation, he or she must, within 72 hours, apply for a
warrant in relation to
the matter (new s 38K(3)). Where no application is made within the 72 hour
period or the application is made
but no warrant is granted, things that have
been done by the Chief Executive must be treated as if they were done without
the authority
of s 38K and Customs must immediately destroy information
disclosed to it. Where a "partial" warrant is
granted[8] actions
falling outside its scope are similarly treated.
- In
my view the access regime in relation to travel that is not current travel is a
justified limit on the right to be secure against
unreasonable search and
seizure in terms of s 5 BORA. In particular, the following features are
important:
29.1 The warrant requirement ensures that access
can only occur where an independent judicial officer, a District Court Judge, is
convinced that grounds exist for access to occur.
29.2 Access to non-current travel information without a warrant can only
occur in emergency situations that are tightly circumscribed.
29.3 The requirement that Customs seek a warrant within 72 hours of having
accessed information under the emergency procedure attempts
to achieve a balance
between legitimate needs of law enforcement and safeguards for private persons.
The requirement should ensure
that a decision to use the emergency procedure
will be considered and not lightly taken. It provides an independent review
mechanism.
Moreover the prohibition on use of information obtained under the
emergency procedure that is not subsequently validated through
the warrant
procedure should also ensure that Customs resort to the emergency procedure only
in compelling cases, and provides some
protection for travellers' rights.
- A
further protection contained in new Part 3A is that Customs must, at least every
six months, review information disclosed to it
under new ss 38G-K in order to
determine whether retention of that information is necessary for the purposes of
the Part; if not
necessary then the information must be promptly disposed of (s
38L(1)).
Limitation on Liability
- Proposed
new s 38O provides that neither the Crown nor Custom officials are liable for
anything done or omitted by a person in the
exercise of a power conferred by
Part 3A, unless the person has not acted in good faith or has acted without
reasonable care. It
could be argued that this proposed new section raises issues
of consistency with s 27(3) BORA, which provides:
"(3) Every person
has the right to bring civil proceedings against, and to defend civil
proceedings brought by, the Crown, and to
have those proceedings heard,
according to law, in the same way as civil proceedings between individuals."
For my part, I do not believe that there is any inconsistency.
- Whether
there is a perceived inconsistency with s 27(3) BORA depends upon the scope of s
27(3). There are two views:
32.1 It could be argued that s
27(3) goes to substantive liability and so impacts on Parliament's ability to
determine that the Crown
shall not be liable for conduct which, without the
exclusion, could create liability.
32.2 It could be argued that s 27(3) is procedural in effect, and means
simply that the procedure to be adopted in any proceedings
against the Crown
will be the same as that applicable in litigation between private parties.
- In
Matthews v Ministry of Defence [2003] UKHL 4; [2003] 2 WLR 435 the House of Lords had to
consider whether s 10 of the Crown Proceedings Act 1947 (UK), which exempted the
Crown from liability in
tort for injury suffered by members of the armed forces
in certain circumstances, was compatible with Article 6(1) of the European
Convention on Human
Rights.[9] Their
Lordships held that the Crown's exemption from liability in tort was a matter of
substantive law, so that the claimant had
no "civil right" to which Article 6(1)
might apply. Their Lordships treated the limitation on liability in s 10 as
going to the substantive
claim (i.e. it did not exist), rather than creating a
procedural bar. Article 6(1) was, in principle, concerned with procedural
fairness
and the integrity of a State's judicial system, and not with the
substantive content of its national law.
- The
analysis in Their Lordships' speeches is consistent with the view that the new s
38O does not infringe s 27(3). This conclusion
is supported by the history of
Crown liability in New Zealand and the many provisions which afford protection
to officials acting
in the course of their duties in good faith and, in some
instances, without negligence.
Enhanced powers to question and
detain
- The
Bill contains a number of clauses concerning new detention and questioning
powers that raise issues in terms of ss 22 (arbitrary
detention) and 23(4)
(right to of persons detained under any enactment to refuse to make a statement)
BORA. The provisions are first
outlined and the BORA consistency issues then
examined.
The new powers
- Clause
7 of the Bill amends s 22 of the 1996 Act by adding a new subsection 3 under
which a person who has (or is suspected of having)
either (1) disembarked from a
craft that has arrived in New Zealand and has not (or is suspected of having
not) reported to Customs;
or (2) attempted to depart from New Zealand from a
place other than a Customs place, must answer any questions asked by a Customs
officer and produce any documents within his or her possession or control that a
Customs officer requests. The actual questioning
and compelled production power
is located in a new s 145A.
- For
the purposes of questioning a person under s 145A, a Customs officer may detain
a person whom he or she wishes to question (see
new s 148A(1)) for a period of
up to 12 hours (new s 148A(2)). The purposes for which a person may be
questioned under s 145A are
specified (see new s 145A(3)). Detention for
questioning must take place as soon as it is reasonably possible (new s 148A(3))
and
must cease if the person has correctly answered the questions to the
officer's satisfaction and the officer has no reasonable cause
to suspect the
commission of stipulated offences (new s 148A(4)). The period of detention may
be extended for a further reasonable
period if accident, stress of weather or
some other difficulty of transport or a special circumstance makes it impossible
for a Customs
officer to question and make enquiries within the 12-hour period
(new s 148A(6)).
- The
overall purpose of the amendments is to plug a perceived gap in the 1996 Act
under which detention and compulsory questioning
powers are not available in
respect of persons who arrive at/depart from remote locations that are not
designated customs places.
Consistency with s 22 BORA
- In
my view the detention powers provided for by new s 148A do not infringe s 22
BORA for the following reasons:
39.1 Detention is not mandatory.
39.2 The period of detention is limited (12-hours only, except in tightly
defined special circumstances).
39.3 The purpose of detention is carefully spelt out in the legislation.
39.4 There will be cases in which these powers are reasonably necessary in
order to ensure that the questioning power is effective
and cannot be evaded by
a person attempting to leave the presence of a Customs Official.
Consistency with s 23(4) BORA
- Section
23(4) BORA will be triggered in those instances where a person:
40.1
has been detained for questioning under new s 148A; and
40.2 in terms of new s 22(3) is required to answer any questions put upon
pain of penalty in the case of refusal.
However, in my view the combined effects of these new powers, while they
constitute a prima facie infringement of s 23(4) BORA, are
a justified limit in
terms of s 5 BORA.
- While
compelling a detainee to answer questions is in direct conflict with the words
of s 23(4) BORA, this Office has consistently
adopted the position that the
questioning of detained persons can be justified where either:
41.1
the answers to those questions cannot be used against the detainee in subsequent
criminal proceedings; and/or
41.2 the detainee can refuse to answer questions put, if to answer them would
tend to incriminate him or her.
In this regard, proposed new s 145A(5) is significant. It provides that it is
a reasonable excuse for the purposes of the offence
provision (existing s 185 of
the 1996 Act) to fail to answer questions put by a Customs officer, if a person
fails or refuses to
answer on the basis that a person's answer would incriminate
or tend to incriminate that person.
The 1987 Act: Ouster of Judicial Review
- The
proposed new ss 125AA-125AE of the 1987 Act are intended to implement the desire
of the New Zealand Immigration Service ("NZIS")
to move to a position of
requiring airlines to acquire passenger information in advance ("API") for
onsending electronically to New
Zealand immigration authorities prior to
departure for New Zealand. The provision of API will enable immigration
authorities to make
immigration decisions well in advance of a passenger's
arrival in New Zealand and will also allow the immigration authorities a longer
time period in which to make enquiries in relation to those passengers in
respect of whom they entertain suspicions or doubts about
immigration
status.
- In
principle I see no problem with a move to API, which I note is now becoming the
standard for many immigration authorities worldwide
(see the material noted at
paragraph [14] above). The one matter of concern related to this new scheme is
the content of the proposed
s 125AB(6). This provision provides that a person
(other than a New Zealand citizen or permanent resident or person holding a
pre-cleared
permit, or someone who claims to have such status) who NZIS has
decided should not be permitted to board a craft for the purpose
of travelling
to New Zealand (or to board subject to conditions) may not challenge that
decision by way of, inter alia, judicial
review (see s 125AB(6)(b)). This
provision raises issues of consistency with s 27(2) BORA which provides that
every person whose
rights, obligations or interests protected or recognised by
law have been affected by a determination of any tribunal or public authority
has the right to apply, in accordance with law, for a judicial review of that
determination.
- A
number of issues arise:
44.1 Is the NZIS, when declining a person
(other than a New Zealand citizen or permanent resident) the ability to board an
aircraft,
to be regarded as a "public authority" within the meaning of s 27(2)
BORA?
44.2 Does a decline decision by NZIS in respect of such a person affect any
relevant "interest protected or recognised by law"?
44.3 Even if there is a prima facie breach of s 27(2), could it be justified
in terms of s 5 BORA?
- As
to the first issue, in light of the recent Court of Appeal decision in
Chisholm v Auckland City Council (CA32/02 29 November 2002) it is not
clear that an NZIS official making a "decline" decision is to be regarded as a
"public authority"
within the meaning of s 27(2) BORA. That is because the Court
of Appeal in that case indicated that the phase "public authority"
was intended
to capture a decision-maker who is "adjudicative" in character. A "decline"
decision is not adjudicative. Nonetheless,
the applicability of Chisholm to s
27(2) is not certain, since in that case what was in issue was s 27(1) BORA
(natural justice)
rather than s 27(2). It is not certain whether the Courts
would regard a "decline" decision as falling outside of s 27(2), although,
in my
view, the arguments in favour of that outcome would be strong.
- As
to the second issue, it is clear that non-citizens and non-permanent residents
have no right to enter New Zealand and that the
issuing of a visa or permit to
enter New Zealand is a matter of discretion (see ss 8, 9, 9A and 10 of the 1987
Act). The issuance
of a visa or permit to enter New Zealand is closely connected
with the exercise of state sovereignty and the ability of the state
to determine
who shall and shall not come to it. Traditionally that sovereign power has been
reviewed with diffidence by the Courts,
as a matter particularly suited for
executive determination. In turn, this implies that the granting of a visa or
permit is a highly
discretionary exercise, giving rise to low expectations on
the part of an applicant. Whether the related decision (which may affect
a visa
holder or permit holder) not to approve boarding a craft also involves low
expectations is more difficult to assess. Certainly
the Act is clear that
issuance of a visa does not have the effect of a permit (s 14A(2)) nor affect
the exercise of immigration discretion
generally (s 14A(3)).
- Third,
even if a decline decision under s 125AB falls within the language of s 27(2)
BORA, it is possible to justifiably limit the
right to judicial review in terms
of s 5 BORA.
- The
reasons in favour of an ouster clause are (1) preventing the bringing of
worthless challenges to decisions, especially through
the availability of legal
aid in support of such applications; (2) use of judicial review proceedings as a
means of obtaining entry
to New Zealand (eg need to be available in New Zealand
to be cross-examined on evidence); (3) it would be consistent with aspects
of
the current Immigration Act (particularly s 10(3) which ousts judicial review of
visa decline decisions).
- On
the other hand, many of these problems could be addressed more directly by
provisions targeted at removing these evils, yet allowing
for the possibility of
judicial review. For example, the fear that lodging an application for judicial
review might inevitably lead
to an application for a visa or a permit to enter
New Zealand in order to be able to give evidence at such a judicial review,
thereby
defeating the "decline" decision in practice, could be met by a
provision which provides that the existence of review proceedings
by a person
against whom a decline decision has been made, cannot be a reason for granting a
visa or permit to enter New Zealand.
Moreover, any fears about waste of legal
resources by fruitless litigation could be met by a ban on making legal aid
available to
persons seeking to exercise the right to judicial review. Finally,
the current s 10(3) Immigration Act was added to that Act without
having been
vetted for BORA consistency.
- In
the circumstances, I consider that. while the matter is finely balanced, the new
s 125AB(6)(b) can be considered a justified limit
on s 27(2) BORA, particularly
since it only operates in respect of persons who merely hold a visa (or come
from a visa free country).
Terence Arnold
Solicitor-General
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Border
Security Bill. It should not be used or acted upon for any other purpose. The
advice does no more than
assess whether the Bill complies with the minimum
guarantees contained in the New Zealand Bill of Rights Act. The release of this
advice should not be taken to indicate that the Attorney-General agrees with all
aspects of it, nor does its release constitute a
general waiver of legal
professional privilege in respect of this or any other matter. Whilst care has
been taken to ensure that
this document is an accurate reproduction of the
advice provided to the Attorney-General, neither the Ministry of Justice nor the
Crown Law Office accepts any liability for any errors or omissions.
[1] See further
paragraph [14]
below
[2] I note that
through new s 282A of the 1996 Act - see clause 24 of the Bill - Customs can
share information acquired through new Part
3A with other law enforcement
agencies such as the
Police.
[3] See US
Federal Register Vol 67, No 122, 25 June 2002, pp 42710 - 42713 for the full
text of this Interim Rule. I note that: (1) the
Interim Rule is precisely that,
interim not final. Whether it will stay in its current form after the period for
comment on it has
expired is uncertain; (2) the Interim Rule has not been tested
for compliance with the Fourth Amendment to the US Constitution and
hence it is
hard to draw any firm conclusions about its human rights compatibility; (3) the
scope of the Interim Rule is much more
limited than that envisaged in Part 3A in
that it applies only to airlines and does not apply to other travel industry
services.
[4]
See US Federal Register, Vol 68, No 2, 3 January 2003, pp 292-302 for the full
text of the Proposed
Rule.
[5] Border
Security Legislation Amendment Bill 2002 schedules 6 and
7.
[6] Customs
Amendment Act 2001, s 61 inserting new ss 107 and 107.1 Customs
Act.
[7] Defined in
new s 38A to mean an owner/operator of a craft involved in international travel
for commercial purposes, a travel operator,
an owner/occupier/operator of a
Customs controlled area, an operator of a business that handles, packs, stores
or transports goods
internationally or any person involved in any other way in
the carriage, handling or transportation of goods or persons for commercial
purposes
internationally.
[8]
i.e., where the warrant authorises only some of the things done by the Chief
Executive.
[9]
Article 6(1) provides that in the determination of his or her civil rights
everyone is entitled to a fair hearing by an independent
and impartial tribunal
established by law.
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