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Immigration Amendment Bill (No 2) (Consistent) (Sections 8, 9, 19, 21, 27) [2013] NZBORARp 36 (23 September 2013)

Last Updated: 8 April 2019

Immigration Amendment Bill (No 2)

23 September 2013 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Immigration Amendment Bill (No 2)

1. We have considered whether the Immigration Amendment Bill (No 2) (PCO 17175/8.0)

(‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of

Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill will be considered by the Cabinet Legislation Committee at its meeting on Thursday, 26 September 2013.

2. We understand the Bill may be subject to further amendment before it is submitted to the Cabinet Legislation Committee. We will provide supplementary advice should this prove necessary.
   
3. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered possible inconsistencies with ss 8 (right not to be deprived of life),

9 (right not to be subjected to torture), 19 (right to be free from discrimination),

21 (right to be secure against unreasonable search or seizure), 27(1) (right to natural justice) and 27(2) (right to judicial review). Our analysis under those sections is set out below.

THE BILL

4. The Bill includes a number of amendments to the Immigration Act 2009 (‘the Act’) to

ensure that New Zealand’s immigration system operates more effectively. The aim of the amendments include:

• addressing gaps identified in the compliance regime;

•responding to opportunities provided by new technology;

•introducing measures to address the exploitation of migrant workers; and

•clarifying provisions in the Act.

CONSISTENCY WITH THE BILL OF RIGHTS ACT

Sections 8 and 9 – Rights not to be deprived of life and subjected to torture

5. Sections 8 and 9 of the Bill of Rights Act provide for the right not to be deprived of life and the right not to be subjected to torture or cruel treatment.

6. The Government is under an obligation not to deport a person where the person faces a real risk of being subjected to torture or the arbitrary taking of life 1.
   
7. Clauses 35, 39 and 56 affect the circumstances in which a person may appeal against a decision on humanitarian grounds. These amendments do not affect a person’s ability to claim asylum in New Zealand. If a person alleged they would be subject to torture or death if returned to their home country or country of origin they would still be entitled to make a claim for recognition as a refugee or protected person. Therefore, cls 35, 39 and 56 do not limit the rights affirmed by ss 8 and 9 of the Bill of Rights Act.
   

Section 19 – Right to be free from discrimination

8. Section 19(1) of the Bill of Rights Act affirms the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. These grounds include, amongst others, age and marital status.
   
9. In assessing whether there is a limit on the right to freedom from discrimination we consider whether 2:
   

•the legislation draws a distinction between persons or groups in analogous or comparable

situations on one of the prohibited grounds of discrimination, and

•the distinction involves material disadvantage to one or more classes of individuals.

Detention of persons under the age of 18

10. Clauses 74 and 75 amend ss 331 and 332 of the Act so that 16 and 17 year olds who are married or in a civil union will be detained in the same way as adults.
    
11. Currently, a person under the age of 18 who is married or in a civil union and detained overnight without a warrant will be detained in either a Child Youth and Family residence or any other place under the control of or approved by the Chief Executive of the Ministry of Social Development. Clause 74 changes this situation by providing that such a person will now be detained in either a place approved by the Chief Executive or a police station.
    
12. Currently, a person under the age of 18 who is married or in a civil union and detained under a warrant of commitment will be detained at a place approved by a District Court judge. A judge may order that the person be detained at a Child Youth and Family residence, any other place under the control of or approved by the Chief Executive of the Ministry of Social Development or any place approved by the Chief Executive under s 330. Clause 75 changes this by providing that such a person will now be detained in either a prison or another place approved by a judge that has also been approved by the Chief Executive under s 330.
    
13. This gives rise to the possibility of discrimination on the basis of marital status by treating people under the age of 18 who are married or in a civil union differently from those who are single.

14. As discussed above at paragraph 9, there are two criteria that must be satisfied before the right to be free from discrimination is engaged. Clauses 74 and 75 meet the first criteria in that the clauses make a distinction between 16 and 17 year olds based on their marital status. However, we do not consider that the amendments create a material disadvantage for 16 or 17 year olds who are married or in a civil union.
    
15. While different places of detention may be more or less desirable than others, we do not consider that requiring a 16 or 17 year old person who is married or in a civil union to be detained at a place where adults are detained creates any material disadvantage. Sections 331 and 332 prescribe the place of detention, not the conditions of detention. Those who make decisions about where a person should be detained retain the discretion to specify a place of detention that is consistent with individual needs (albeit that the discretion is limited to places specified in legislation or approved by the Chief Executive). For example, we note that s 332, which deals with the longest form of detention, gives a judge the discretion to choose between detaining the person in a prison or another place approved by the Chief Executive. Therefore, judges retain a limited discretion to select a place of detention that is appropriate for each individual.
    

Section 21 – Right to be secure against unreasonable search and seizure

16. Section 21 of the Bill of Rights Act affirms the right of everyone to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise. There are two limbs to the s 21 right. First, s 21 is applicable only in respect of those activities that constitute a “search or seizure”. Secondly, where certain actions do constitute a search or seizure, s 21 only protects against those searches or seizures that are “unreasonable” in the circumstances.
    
17. Various provisions in the Bill appear to engage s 21. We will address each of these provisions in turn below.
    

Requiring biometric information

18. Clause 33 of the Bill inserts new s 111. New s 111 extends the requirement on a person applying for permission to enter New Zealand to allow biometric information to be collected. Under the Bill, biometric information may now be collected from a person after they have been granted entry permission but while they are still within an immigration control area (or other prescribed area).
    
19. Biometric information is defined in the Act as including a photograph of the person’s

head and shoulders, the person’s fingerprints and iris scan. Because the obligation to allow the collection of biometric information involves compulsory access to information, including personal information, it impinges upon reasonable expectations of privacy that members of the public would have in relation to that information. However, for the reasons below we conclude that the power to require biometric information is not unreasonable.

20. The Ministry of Business, Innovation, and Employment (‘MBIE’) advises that including the

ability to require biometric information from people who have been granted entry

permission but are still in an immigration area is necessary because some travellers do not become a person of interest until after they have collected their baggage, possibly due to something found in their baggage.

21. Allowing the collection of biometric information improves the integrity of the immigration system by allowing Immigration New Zealand to quickly and accurately verify the identity of travellers. Biometric information may only be used in accordance with s 30 of the Act.
    
22. Biometric information establishes a record of a person’s identity, verifies their identity and assists in decision making under the Act. We also note that it is well recognised that persons who cross international borders can legitimately be required to sacrifice aspects of their privacy in return for the ability to travel. In other words, at and around the time of travel, particularly in an immigration context, expectations of privacy are lower.
    
23. Therefore, we conclude that the search and seizure powers related to biometric information are not unreasonable in terms of s 21 of the Bill of Rights Act.

Warrantless search of an employer’s premises to inspect records

24. Under s 277 of the Act an immigration officer may, without a warrant, enter an

employer’s premises to inspect and make copies of certain employment records.

25. Clause 60 amends s 277 of the Act to add a further purpose for which an immigration officer may execute a search under s 277. This new purpose is “determining whether a

person who is working for an employer in New Zealand is entitled to work in New Zealand”.

26. Clause 60 also amends s 277 to make it clear that an employer’s premises can include a dwellinghouse. MBIE advises that the worst cases of worker exploitation will often occur in a part of an employer’s premises that is within a dwellinghouse (eg, sex workers, massage workers).
    
27. Warrantless searches of dwellinghouses require strong justification. However, we consider there are appropriate safeguards in s 277.
    
28. First, s 277 only authorises an immigration officer to enter a premises and inspect and/or make copies of certain records relating to the employment and remuneration of an employee. It does not authorise more invasive searches, such as that of a person.
    
29. Secondly, under s 277, an immigration officer must believe various matters on reasonable grounds before commencing a search.
    
30. The search powers may only be exercised in respect of an employer’s premises. While this could include an employer’s dwellinghouse, it only extends to those parts of the dwellinghouse in which the officer reasonably believes employment records are kept.

Further, the search power may only be exercised at a reasonable time during which work is being carried out or the premises are open for business. Those safeguards limit the search power so that it only applies to premises (or the parts of premises) that are being used as a

place of business. Those who choose to use their dwellinghouse as a place of business can expect to have lower expectations of privacy.

31. On balance we consider this search power to be reasonable.

Warrantless power to enter employer’s premises to search for employees

32. Clause 61 inserts new s 277A which provides immigration officers with a warrantless power to enter an employer’s premises to search for employees. New s 277A allows an immigration officer to exercise this power where they believe, on reasonable grounds, that paid work is occurring at the premises and that any of the following persons are at the premises:
    

•a person who is not entitled to work in New Zealand under the Act;

•a person who is not complying with one or more work-related conditions of his or her visa; or

•an employee of a person who the immigration officer has reasonable grounds to believe is

committing an offence under s 350 or 351 of the Act 3.

33. The search power includes the power to require the above persons to answer questions designed to ascertain whether they are working unlawfully and to produce identity documents.
    
34. The definition of premises in new s 277A includes a dwellinghouse. As above, a warrantless search of a dwellinghouse requires strong justification.
    
35. Under current s 277, immigration officers can already enter an employer’s premises and require an employer to produce certain records without a warrant. However, immigration officers do not currently have the power to search for unlawful workers or interview employees while conducting a search under s 277, even where they uncover evidence to suggest that unlawful workers are at the premises.
    
36. The purpose of new s 277A is to ensure that immigration officers have appropriate powers to detect unlawful and/or exploited workers. While warranted searches of dwellinghouses are usually preferable, we are advised that, in some circumstances, the requirement to seek a warrant to search for unlawful workers presents a significant barrier to enforcement activity.
    
37. MBIE advises there have been situations where immigration officers have uncovered evidence of unlawful workers while executing searches under s 277 but are unable to look for or interview workers. In this situation, immigration officers must leave the premises and apply for a search warrant to undertake a search for workers. This delay provides an opportunity for unlawful workers to escape detection.
    
38. As with s 277, the new search power under s 277A may only be exercised at a reasonable time during which work is being carried out or the premises are open for business. The search power is limited to premises that are being used as a place of business. As noted above, those who choose to use their dwellinghouse as a place of business can expect to have lower expectations of privacy.

39. MBIE advises that immigration officers receive comprehensive training on all new search powers before they are used. Further, internal policies and guidelines place operational restrictions on the exercise of this search power.
    
40. On balance, we consider this search power to be reasonable.

Warrantless power of entry to search for identity document

41. New s 281B allows an immigration officer to exercise certain warrantless search powers for the purpose of facilitating a deportation or turnaround. New s 281B provides that when a person liable for deportation or turnaround refuses a request for identity information, or to produce or surrender an identity or travel document, an immigration officer may search specified places if the immigration officer has reasonable grounds to suspect the identity document is in that place. The specified places are:
    

•the place where the person is currently located (including a vehicle);

•the person’s abode; and

•any premises owned by, or under the control of, the person.

42. This search power may be exercised at any reasonable time and allows an immigration officer to enter any of the above places and seize an identity document.
    
43. New s 281B appears to provide a broad search power. However, this power is limited in several key respects. First, it only applies where a person is liable for deportation or turnaround. Secondly, such a person has the opportunity to avoid a search by complying with the requirement to produce their identity document. Thirdly, the immigration officer must have reasonable grounds to suspect that the identity document is in the place to be searched. Lastly, the places that may be searched are clearly set out in s 281B and do not include the search of a person.
    
44. New s 281B aims to address some of the difficulties created when people liable for deportation or turnaround do not produce an identity document. MBIE advises that it is impossible to facilitate a deportation without a valid passport or certificate of identity. Many countries will not issue a travel document without being provided with the old one. As a result, there is a very long and expensive process that must be completed to confirm a non-compliant person’s identity before they can be removed from New Zealand. MBIE estimates that 25 percent of people liable for deportation conceal their travel documents.
    
45. New s 281B addresses this problem by providing immigration officers with a power to search certain places where they have reasonable grounds to suspect the identity document is located. MBIE advises that obtaining a search warrant to conduct such a search is impractical because immigration officers will not know if a person is going to refuse to produce their identity document until they have located that person. Obtaining a search warrant after they have located a non-compliant person is also impractical as any subsequent delay would provide the person with an opportunity to remove or dispose of their identity document.

46. On balance, we consider that the safeguards discussed in paragraph 42 above provide for a reasonable search power. We note that immigration officers will receive training on how to exercise this new search power appropriately.
    

Search of a person who arrives in New Zealand

47. New s 285A provides that an immigration officer may search a person who arrives in New Zealand if:
    

•the person has not complied with the requirement to produce their passport or identity document;

•the immigration officer believes on reasonable grounds that the person is not a New

Zealand citizen; and

•the immigration officer has reasonable cause to suspect that the required documents are

hidden in or about the person or their baggage.

48. The search may take the form of a rub-down search and/or a search of the person (as described in the Search and Surveillance Act 2012).
    
49. While the search of a person can be invasive, we consider that s 285A provides a reasonable search power. Passports and identity documents are crucial for establishing a traveller’s identity and facilitating their passage through the immigration system. This search power only applies to those who do not comply with the requirement to produce their passport or identity document when they arrive in New Zealand. As noted above, persons who cross international borders can legitimately be required to sacrifice aspects of their privacy in return for the ability to travel. Lastly, any documents seized as a result of a search must be returned to the person if they are granted a visa and entry permission or on that person’s departure from New Zealand.
    

Requiring biometric information and special biometric information to facilitate deportation

50. New ss 287-290A provide for the collection of both biometric and special biometric information for the purposes of deportation, including collection by force if a person refuses to provide the required information.
    
51. Special biometric information is:
    

• a person’s palm-prints;

•a person’s footprints;

•measurements of the whole person; and

•photographs of the whole person.

52. New s 288 provides that an immigration officer may require biometric or special biometric information from a person who is liable for deportation. If the person refuses to provide the required information, new ss 289 and 290 allow an immigration officer to apply to a District Court judge for a compulsion order, and for the judge to issue such an order.

New s 290A allows a constable to arrest a person who has not complied with a compulsion order and collect the required information by force, if necessary.

53. As discussed above, the collection of biometric and special biometric information improves the integrity of the immigration system by allowing Immigration New Zealand to quickly and accurately verify the identity of travellers. It may also be necessary to collect special biometric information if this information is required to meet the entry requirements of a country to which a person liable for deportation must travel through or to.
    
54. Biometric information establishes a record of a person’s identity, verifies their identity, assists in decision making under the Act and may only be used in accordance with s 30 of the Act. If a person is not deported any biometric or special biometric information collected from them must be destroyed.
    
55. New ss 287-290A provide for a reasonable power of search and seizure. These sections provide for compulsion orders, but only where issued by a District Court judge. This provides independent and impartial decision making and helps to ensure that any compelled collection of biometric or special biometric information is reasonable in the circumstances. We also note that new s 290A(2) expressly provides that where a constable uses force to collect biometric information that force must be reasonable and no more than is necessary to collect the information.
    

Section 27(1) - Right to natural justice

56. Section 27(1) of the Bill of Rights Act provides that every person has the right to the observance of the principles of natural justice by any tribunal or other public authority

which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law. The Court of Appeal has stated that observance of the principles of natural justice is a flexible concept and is very much fact specific.

57. Natural justice, as a concept, focuses on procedure and process. Ordinarily, good process would require that an affected person receive reasons for an adverse decision.
    
58. Clause 8 of the Bill inserts new s 11(c)(ia). This section provides that where a decision is made in the absolute discretion of the decision maker privacy principle 6 of the Privacy Act 1993 does not apply to any reasons for that decision. Section 11(c) of the Act already provides that where a decision is made in the absolute discretion of the decision maker the decision maker is not obliged to give reasons for the decision and certain sections of the Official Information Act 1982 do not apply. New s 11(c)(ia) essentially removes the last means by which an affected person may access reasons for an absolute discretion decision – a request under information privacy principle 6 of the Privacy Act.
    
59. Clause 8 of the Bill also provides that new s 11(c)(ia) applies to decisions made before the commencement of the Bill. In other words, new s 11(c)(ia) will apply retrospectively to absolute discretion decisions made before the amendment in cl 8 comes into force.
    
60. Preventing affected persons from accessing the reasons for a decision may limit the s 27(1) right to the observance of the principles of natural justice.
    
61. Where a provision is found to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is

justifiable in terms of s 5 of that Act. Following the guidance in Hansen v R, the s 5 inquiry may be summarised as 4:

1. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
2. if so, then:
   

1. is the limit rationally connected with the objective?
2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
3. is the limit in due proportion to the importance of the objective?
   

62. The Act creates a framework of rights and obligations that govern the entire immigration system. This framework includes decision making powers and the ability for affected persons to challenge these decisions. Absolute discretion decisions sit outside the normal decision making framework in the Act and are used to un-do outcomes required by the normal framework of the Act. The exercise of absolute discretion may not be applied for. If a person purports to apply for such a decision, there is no obligation on the decision maker to consider the purported application.
    
63. In effect, absolute discretion decision making powers allow an affected person to be granted a benefit they are not entitled to under the normal framework of the Act. For example, a person who is unlawfully in New Zealand, and is therefore unable to make an application for a visa, may nonetheless be granted a visa in the absolute discretion of the decision maker. MBIE advises that decisions made using absolute discretion only ever benefit the applicant.
    
64. MBIE further advises that providing reasons for absolute discretion decisions effectively opens up challenges and allows persons purporting to apply for such decisions to argue that previous decisions have precedent value. The absolute discretion power was only ever

intended to act as a ‘safety net’ – to allow a decision to be made in an applicant’s favour where he or she is otherwise ineligible under the normal framework of the Act. Providing reasons for such decisions could undermine the purpose and nature of the absolute discretion decision making power. The objective of cl 8 therefore appears to be to preserve the nature of this power that operates outside of the Act’s framework to ameliorate possible unfairness in individual cases. We consider this to be an important objective.

65. We consider any possible limit on the s 27(1) right is rationally connected to this objective and does not limit the right any more than is reasonably necessary to achieve this objective. Any limitation of the right is also in due proportion to the importance of the objective because preventing people from requesting reasons for absolute discretion decisions is the only realistic option that achieves the objective.
    
66. We consider that any possible limit on the right to the observance of the principles of natural justice is justified.

Section 27(2) – Right to judicial review

67. Section 27(2) of the Bill of Rights Act affirms that every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
    
68. Clause 8 of the Bill does not expressly deny an affected person the ability to apply for judicial review of an absolute discretion decision. However, cl 8 does have the effect of preventing a person from accessing the reasons for a decision concerning them and

therefore could practically limit a person’s ability to judicially review such a decision.

69. If cl 8 does limit the right to judicial review, we consider any such limit justified for the same reasons set out in paragraphs 62-64 above. Absolute discretion decision making powers are intended to benefit those who are otherwise not entitled to benefits under the normal framework of the Act. This helps to avoid unfairness in individual cases. Providing reasons for absolute discretion decisions could frustrate the purpose of the absolute discretion decision making power. We also note that cl 8 does not prevent a person from obtaining other relevant information through other existing avenues, such as the discovery process.
    

CONCLUSION

70. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Footnotes

[1] Attorney-General v Zaoui [2005] NZSC 38 at [79].

[2] Minister of Health v Atkinson & Ors [2012] NZCA 184.

[3] Employers who allow a person to work in their service knowing that they are not entitled to work under the Act; Employers who, while allowing an unlawful employee to work in their service, contravene the Holidays Act 2003, the Minimum Wage Act 1983 or the Wages Protection Act 1983, or prevent the employee from leaving the employer’s service or New Zealand, or ascertaining their lawful entitlements.

[4] [2007] NZSC 7.

Disclaimer

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 Immigration Amendment Bill (No 2). 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.