Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Passports Amendment Bill (Consistent) (Sections 5, 18) [2015] NZBORARp 23 (15 June 2015)

Last Updated: 17 January 2019

Passports Amendment Bill

15 June 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Passports Amendment Bill

Purpose

1. We have considered whether the Passports Amendment Bill (“the Bill”) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (“the Bill of Rights Act”).

2. 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 the consistency of the Bill with s 18 (freedom of movement). Our analysis is set out below.

The Bill

3. The Bill aims to update the Passports Act 1992 (“the Act”) by:

• changing a passport’s validity period from 5 years to 10 years for persons who are at least 16 years old;
• removing the ability to renew existing travel documents to reflect current security and technological requirements;

• providing that travel documents can now be cancelled on the Department of Internal Affairs

(“the Department”) electronic travel document database (“the electronic database”)

without the document being received and physically cancelled by Department staff;

• providing that warnings may be placed on the database where the Department receives notification of warrants of arrest or court orders that require the Department to prevent the use of an individual’s passport;
• providing extraterritorial jurisdiction for the offence of false representation to reduce the risk of the online passport application service being abused by overseas applicants; and

• removing redundant provisions in the Act.

Consistency with s 18(2) and s 18(3) of the Bill of Rights Act – The Right to Freedom of

Movement

4. Three clauses in the Bill give rise to prima facie inconsistencies with s 18(3) of the Bill of Rights Act, which affirms the right to leave New Zealand. Consideration has also been given to s 18(2) of the Bill of Rights Act which provides New Zealand citizens with the right to

enter New Zealand.

Clause 14

5. Clause 14 allows for a warning to be placed on the New Zealand electronic travel document database to indicate that:

• a New Zealand travel document (“a travel document”) has been, or is to be, recalled because

an arrest warrant is in force for the holder, or there is a reasonable cause to believe the travel document is in the wrongful possession of a person, or that the travel document is in the possession of a person who is not the holder as security, pledge, or otherwise in contravention of s 33(3) of the Act; or

• the holder of the travel document is required to surrender the document or remain in New

Zealand by court order or by bail conditions.

6. Clause 14 does not create new grounds for recalling a travel document. The warning simply indicates to border authorities that the travel document has been or is in the process of being recalled and should not be used for travel until the matter affecting its use has

been resolved.

7. In practice a warning, once placed, may result in border authorities preventing a person subject to an arrest warrant or court order from leaving the country (unless the matter is resolved quickly). This ensures that the Department can more effectively prevent the misuse of a travel document until the matter affecting its use is resolved.

8. Clause 14 appears to limit the right of persons wishing to leave New Zealand. The warning has an instant effect on the travel document without prior notice to the holder and may prevent that person from leaving New Zealand.

Clause 27

9. Clause 27 provides for the cancellation of a travel document on the electronic database, without the need to recall or possess the travel document. A person will no longer receive notice prior to the cancellation. The Bill does, however, provide that the Minister of Internal Affairs (“the Minister”) must promptly take reasonable steps to notify the travel document holder following cancellation [1]. The Bill does not amend the existing reasons for cancellation.

10. The purpose of this clause is to increase efficiency in the prevention of misuse of travel documents. This mechanism will operate alongside and complement the current processes in the Act for cancellation of travel documents and notification of travel document holders in writing. Electronic cancellation will be more timely and efficient than relying solely on current processes, as often the contact details held by the Department are out of date or the notification recalling the travel document is ignored by the travel document holder.

11. The instantaneous nature of an electronic cancellation without providing prior notice appears to limit the freedom of movement of persons wishing to leave New Zealand, and the freedom of New Zealand citizens overseas to re-enter New Zealand.

Clause 37

12. Clause 37 amends clause 7 of the Schedule to the Act. This is a temporary provision [2] that allows a person’s travel documents to be suspended temporarily where there is a risk a person could leave New Zealand before the Minister can determine whether the person is a danger to New Zealand or another country. Clause 37 allows the Minister to place a

warning on the electronic database to indicate that the New Zealand travel document has been suspended and should not be used for travel.

13. Clause 37 appears to limit the right of persons wishing to leave New Zealand. The warning has an instant effect on the travel document without prior notice to the holder and may prevent that person from leaving New Zealand.

Are these justified limitations under s 5 of the Bill of Rights Act?

14. The limitations arising from clauses 14, 27 and 37 of the Bill appear to be justified.

15. We consider that the objective of the Bill is sufficiently important to justify potential limitations. The objective of the Bill is to update the Act to reflect the fact that the Department now has an electronic travel document management system, and is able to electronically cancel or place warnings on travel documents, preventing their misuse in a more efficient and effective manner. These mechanisms assist the existing objectives of the Act to:

• prevent travel in order to bring a person in respect of whom a warrant to arrest has been issued before a court, and to prevent travel in respect of a person who is required to remain in New Zealand by a court order; and

• preserve national security.

16. The limitations are no more than is reasonably necessary to sufficiently achieve the objective, and are proportionate to its importance. Clauses 14 and 37 provide for a warning to be placed only in limited circumstances. Under clause 14, the warning will only remain in place until the matter affecting the use of the travel document is resolved. The electronic warning will trigger a warning at the border for Customs authorities to contact the Department to ascertain the relevant facts.

17. In terms of clause 37, the temporary suspension may not exceed 10 working days. The suspension lapses immediately if during the 10 day suspension period, it becomes apparent that the grounds for cancellation of a travel document on the grounds of national security cannot be established.

18. Under clause 27, the travel document holder (including holders of refugee travel documents) will retain a right of appeal to the High Court against cancellations (ss 28 and 29 of the Act). Notification of the cancellation will be sent to the travel document-holder promptly after it is cancelled, and emergency travel documents may still be issued to people whose travel documents have been cancelled.

19. In terms of s 18(2) of the Bill of Rights Act, New Zealand citizens may still enter New Zealand if their travel documents are cancelled when they are overseas. Under s 23(3) of the Passports Act, journey-specific emergency travel documents can be issued to allow people to return to New Zealand (for people whose travel documents have been cancelled under ss 8A or 25A). For cancellations under s 9, s 9(2) provides for the Minister to issue a new passport upon application.

20. Refugee travel document holders who have their travel documents electronically cancelled under clause 27 will retain their right to apply to the Minister to issue a new refugee travel document.

21. In our view, although these provisions raise inconsistencies with s 18 of the Bill of Rights

Act, they are justifiable in terms of s 5 of that Act.

Conclusion

22. 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

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 Passports Amendment 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.

Footnotes

[1] The Minister is not required to notify the travel document holder where the document holder has died or the travel document is expired or reported lost or stolen. For cancellations on grounds of national security, clauses (2)-(4) of the Schedule to the Act provide that the Minister may defer providing notice for up to 30 days if giving notice

sooner would prejudice an ongoing investigation or put the security or safety of any persons

at risk.

[2] The Schedule was enacted as amendments to the Act by the Countering Terrorist

Fighters Legislation Act 2014 in order to respond to the threat posed by terrorism. In

accordance with s 45(1) of the Act, all provisions in the Schedule will expire on 31 March

2017.