Immigration Bill:It goes too far

Scoopit!

Gordon Campbell, at SCOOP 08, has written a comprehensive piece on the Immigration Bill which has been reported back from committee.

No Right Turn has commented on this bill several times, most recently here.

Gordon Campbell’s piece starts:-

OK, the Immigration Bill was reported back late yesterday from the Transport and Industrial Relations select committee. Some objectionable features have been changed ( see below) but the repellent core of the Bill remains. In particular, the security provisions still tilt the balance unfairly and unnecessarily – in favour of the state, at the expense of the individual’s rights to natural justice. No surprises there.

As reported back, the Bill still expands the use of classified information in New Zealand. In earlier posts here , and here and here I’ve tried to identify some of the Bill’s shortcomings. The original Bill for instance, conferred powers on public service CEOs and on the Police, to declare any information as classified, and thus immune from direct scrutiny by the people affected by it.

Now to Adam’s mind the wide range of agencies authorised to declare information secret is dangerous and draconian, in and of itself. Campbell goes on:-

To that end, clause 5 (1) of the [original] Bill allowed for secret information to be anything that ‘in the opinion of the chief executive’ should not be disclosed. That phrase has now been deleted by the select committee. Information can no longer be decreed to be secret at the whim of any and all public service CEOs. Good.

However, a lot of CEOs WILL be granted that power. A few weeks ago, I posted that the select committee would probably devise a list of the agencies to be entrusted with the power to designate information as secret, and that’s exactly what the committee has done. The select committee’s list comprises security, defence, law enforcement and border agencies, plus MFAT and the Department of Internal Affairs.

That’s a comprehensive tally. Any such list entails… the heads of the SIS, GCSB, Police, Corrections Department and Internal Affairs, and the chief executives of the Department of Labour, Ministry of Fisheries, Ministry of Agriculture and Forestry, Civil Aviation Authority, Aviation Security, New Zealand Customs, the Ministry of Foreign Affairs and Trade, Maritime New Zealand and the New Zealand Defence Force. Do we want so many state agencies operating under a veil of secrecy ?

The process kicks in if the CEO decides that disclosure might prejudice security or our international relations, inhibit the Police or the listed agencies in the carrying out of their operations or functions, or impact negatively on future information flows from any overseas country or foreign organisation.

Why on earth do we want to give such power to unelected officials heading a state agency?

At the end of the day, even if the courts and the new Immigration and Protection Tribunal get the urge to rule that the information doesn’t really merit its classified status and should thus be released – lets say because, as in the Zaoui case, about 80 percent of it might already be on the Internet – then clause 231 (2) enables the CEO of any of the listed agencies to over-rule the courts, and keep the lid on.

Consider this comment:-

Clause 289 even forbids the courts from querying whether the secret information is accurate – though to be fair, the new clause 217 (2c) does concede that the Tribunal can ignore any secret information that it regards as not being credible.

To Adam’s mind this really is not acceptable. He finds it strange that there has been so little media comment on this legislation. Yet this is legislation which impacts upon a large segment of society.

This is legislation which anybody who purports to believe in individual rights should be questioning.

Granting the state rights such as these should not be undertaken without very careful consideration, lengthy public debate and the writing into the law of strict controls to ensure the executive cannot use these powers in an abusive and coercive manner.

Further, given the history in NZ of the legislature passing badly drafted laws which require amendment, Adam is especially concerned.

Note these comments also:-

Now, some fourteen government agencies are being given the power to demand that their hearsay be treated as gospel.

Remember, these powers are being extended in situations where the outcomes for the migrants and their families are as serious as the penal outcomes are under criminal law – and yet lower standards of evidence and due process are being promoted by this Bill, for how the government should treat vulnerable people who have broken no laws.

The detention provisions in this Bill are extremely harsh. A new Clause 271A ( inserted by the select committee ) rules out bail for any offence whatsoever under the Bill. So much for the ancient right of habeas corpus.

You get the idea

Also, another new clause at 285 (10) makes detention potentially indefinite by preventing the courts from considering the length of time that the person has already been detained as a factor in whether they should be released.

These are the kind of powers you would expect to see the Bush administration wielding over inmates at Guantanamo Bay.

In Britain, the law lords in 2004 expressly ruled out the use of immigration law in contexts that result in indefinite detention – but this Bill virtually enshrines it.

Quite, legislation such as this is outrageous.

Putting power such as this into the State’s hands causes Adam huge concern.

Saying it is to bring our law into line with others, even if that is the case, does not make it right. Since 9/11 far too much has been done in the name of protecting freedom, to erode freedom. As always government’s instinct, especially that of officials, is to regulate, proscribe and control.

We see many rail against nanny state and Helengrad, yet this piece of legislation pernicious in it’s effect has had little air time. Indeed, until Adam came across Gordon Campbell’s piece and read it in detail, plus comments by Idiot/Savant at No Right Turn he had not been very aware of this at all.

Campbell goes on:-

In reality, those clauses seem to have been written largely with the Iranian Christian detainees in mind, in order to sanitise their indefinite detention. Some of these Christian converts have been refusing to sign the travel documents that are necessary to facilitate their return to a country that persecutes ( and in some cases, executes) converts from Islam. The Bill is trying to ensure that our courts cannot challenge such detention, on any human rights grounds that treat the length of their time in captivity as a mitigating factor.

This panders to the Islamophobia so prevalent today. Further, such indefinite detention just does not sit well with the concept of a democracy.

People attempt to justify such laws by saying the innocent have nothing to fear. History is littered with the corpses of those who believed such assurances. In addition, administrations which wish to can always justify perverting such legislation.

Then Campbell identifies some other points:-

It is also disappointing to see the select committee has not amended or dropped the provisions in the Bill – see clause 5 (2) and clause 216 (4) – that enable all details of the classified information to be with-held in order to protect sources. Knowing something about the sources being relied upon is a valuable check against injustice and character assassination. In 2005 for instance Winston Peters made statements about Iraqi migrants without identifying his sources, leaving the victims without recourse, and insisting the charges were without foundation.

That’s why from the outset, people have a right to know not only what they are being accused of – but also who may be feeding allegations about them to politicians and immigration officials. This is particularly important in immigration contexts. Allegations against business migrants and refugees can be made by business rivals, or by disgruntled spouses and relatives. People can also dob in other migrants, in the hope of winning brownie points from the authorities.

Bear in mind that this bill affects long term permanent residents as well. Rumour and innuendo are the currency here. Guilty before being proved innocent is the approach. People are being encouraged to inform on others. Funny that, Adam seems to remember wars being fought to overturn that sort of society.

Franz Kafka would have revelled in this.

Campbell then notes:-

In some respects, the select committee has made things worse. Formerly, any decision reliant on secret information would be referred automatically to Tribunal hearings ( see original clause 30 (20 b) and the entire clause 137) and such information could not be used in the original determination at the border. Now, the select committee has recommended that secret information can and should be used by officials to make initial decisions – whjch, incidentally, will inevitably multiply the number of immigration officers with access to it.

So someone could it seems be denied entry with no possibility of knowing why.

Routinely with this Bill, secrecy is guarded quite loosely when it serves the government’s convenience to do so – yet it must be treated like kryptonite whenever the affected individual seeks to gain fair access to it.

So, many officials could know the issues, yet the affected person may not.

A really topsy turvy situation.

No doubt the ever reliable Crown Law has determined that this is all OK and acceptable.

Campbell writes a lot more and it is worth reading.

Adam will give only one more short extract:-

As a citizen of New Zealand, you might think that you enjoy an enduring right conferred by birth ( or by naturalization) to leave and enter New Zealand, and to be in this country at any given time. Well, you would be wrong. The select committee has recommended that clause 7 of the Bill be amended to make it explicit that citizens must establish their identity and prove their citizenship in order “ to access that right….[and] establish their right to be in New Zealand as citizens.”

The intention is obvious, but the execution is utterly ham-fisted. According to the Bill, our right to be in New Zealand is conditional, and accessible again by us ( once we travel overseas) only at the discretion of an immigration official. This is quite a good example of how the post 9/11 world ( and the desire to identity potential threats) has subverted everyone’s rights I look forward to hearing Labour MPs telling voters they now need to jump through extra bureaucratic hoops before they can be allowed to ‘access their right’ to be in New Zealand, regardless of whether or not they carry a New Zealand passport. Clause 7 would be less objectionable if it treated the document check as confirming a right, rather than bestowing one.

Appalling, absolutely appalling.

Gordon Campbell is to be commended for the effort he has put into this.

Idiot/Savant makes amongst others these key points:-

There is now a blanket ban on the courts granting bail to immigration detainees, to prevent them from “undermining” the law by applying the Bill of Rights Act. This means there is no effective oversight on the discretion of immigration officers to order detention.

The security clause is retained, allowing any non-citizen to be arbitrarily arrested and indefinitely detained on the (not effectively reviewable) decision of an immigration or police officer that they are a “risk to security” – even if they have lived here for decades.

The current system of indefinite detention is retained, with clauses added again to prevent the courts from “undermining” it by applying the BORA. There is now a presumption that detention will go on forever. And courts must still regard all classified information as accurate when deciding on detention, no matter how transparently false it is.

This bill must be amended. The erosion of basic rights must be stopped.

If people think this is all rather silly, just remember that Senator Ted Kennedy was on the US government’s ‘no fly list’, various other people have found themselves on terrorist watch lists through error, do you want your friends/relatives detained because of secret information, or administrative error.

It is not a case of it won’t happen here, it is happening here NOW.

At the end of all this Adam is reminded of this saying by Clarence Darrow, the great American jurist:-

You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.

Scoopit!