Wednesday, July 09, 2008

Immigration Bill Has Elements of the Kafkaesque


The Human Rights Commission has made a highly critical submission on the Immigration Bill in which, carefully-worded independent Crown agency that the HRC is, it also saw fit to use the expression 'kafkaesque'. The HRC also picked out for special criticism clause 9 (1) (f) -- the one discussed in my original post that makes removal, deportation or exclusions from [any] other country sufficient (or mandatory?) grounds for denial of entry to New Zealand.

There is also now an anti-Bill website, and an online petition against the Bill. Those who sign the petition are able to submit a comment with their signature.

-- original post --

The new Immigration Bill currently working its way through the New Zealand legislative process should be of grave concern to anyone who cares about civil liberties, according to two detailed articles by Gordon Campbell.

The Bill gives a frightening new range of powers to immigration officials (search, seizure and detention without warrants) and enshrines the use of secret information to make accusations against people who will have no guarantee of being able to see a summary of the evidence against them. It removes current judicial oversight of immigration proceedings. It also requires institutions, businesses and individuals (including employers or accommodation providers) to provide information on a 'suspect' and allows for this information to be provided to a broadly-defined range of overseas agencies. It provides for the compulsory collection of biometric information (including from New Zealand citizens) and fails to establish safeguards on its use.

As with other bloggers, one clause sets personal alarm bells ringing: 9 (1), which states that "no visa or entry permission may be granted, and no visa waiver may apply to any person [who]" has (a) ever been convicted of a crime punishable by at least 5 years; (b) been convicted of a crime punishable by at least 12 months in the last 10 years; or (f) "has at any time been removed, deported or excluded from another country".

One blog commenter suggested that this may just be badly drafted and that an immigration officer may -- at their discretion -- deny entry to someone deported, removed or excluded from another country, rather than denial of entry being mandatory for someone in this circumstance.

Even in this case, these conditions are draconian. Presumably 9 (1) (a) and (b) would include someone who has been a political prisoner in a state like China or Saudi Arabia. Should a human rights activist from Burma be denied entry to New Zealand because she was thrown in jail by the dictatorship?

Clause (9) (1) (f) is just crazy. In this supposedly globalised world, the nation state still carries a fair wack of arbitrary power over personal movement. The rights which citizens of many states take for granted evaporate once a border is crossed, and you can be deported, removed or excluded from a country without being anything like a criminal or badly-intentioned person. When I was in Mexico a few years ago I had the chance to chat to a guy who worked at the New Zealand embassy, who said that his colleagues at the Spanish and Italian embassies had had to process the deportations of about 100 of their citizens in the past year, who had annoyed the Mexican military by volunteering as human rights observers in Chiapas. It was with this in mind that I narrowly decided not to do the same thing myself.

As other bloggers point out, you can be refused entry to a country through a simple misunderstanding, or because some petty official doesn't like the cut of your gib. You don't have to go far to find stories of a respected British journalist detained, strip-searched and deported at LAX by paranoid US Immigration because there was an irregularity in her paperwork. Is it the intention to turn all such people away from New Zealand?

Both major parties are supporting the Bill (only the Greens and the Maori Party are likely to oppose it), so with no 'horse race'-style story available, our lamentable excuse for a mainstream media is ignoring the Bill altogether.

Campbell comments that internationally centre-left parties have been only too willing to stengthen the authoritarian reach of the state, and it has been the crusty conservatives in the British and US courts who have been the last bastion of traditional civil liberties. Unfortunately, as I've argued previously, the principles of the 'liberal' right tend to disappear in the political arena. Campbell says:

[I]n New Zealand, the centre right and its libertarian wing seem concerned merely with corporate freedom and property rights, and not with the civil rights of individuals. Thus, Act and National seem certain to applaud the extensions of state power the Bill contains, and will vote with the Government to pass them into law. Much as they may whine on about the nanny state, the centre right in New Zealand has always had a love affair with the authoritarian powers of the daddy state

So it will be down to a couple of minor parties, civil groups like the Law Society and concerned citizens to oppose this overrreaching legislation.


Cecilia said...

A couple of things:

1. Poor, poor drafting. Don't they make people take the much despised legal drafting class in law school in NZ? Or, maybe it's all non-lawyers doing the drafting (not that lawyers do such a great job, but since they will be the ones interpreting and applying the statute later, it's usually good to get some input).

2. Yes, draconian and disturbing, but, oh my god, not even in the same ballpark as the fact that overnight the NZ government essentially dismantled hundreds of years of fundamental legal principles by creating a massive and very vague exception to double jeopardy a couple of weeks ago. There appeared to be no debate almost at all about this and it happened within a few weeks of first being proposed. Apparently most of the country has absolutely no idea that a huge, fundamental legal right that has stood in British common law for centuries has been stripped away from them. Worst of all, it seems that the bill in question was created and passed in direct response to Chris Kahui's acquittal because it was inconsistent with his conviction in the court of public opinion.

Sorry, to hijack your post somewhat but I just don't understand why this proposed immigration legislation is apparently worthy of discussion (it is) and upsetting people (rightly so) yet nobody cared about the double jeopardy. Shame on the lawyers of NZ who know better even if the general public does not. (You Simon, sort of get a pass since you were in Australia at the time but I was a little surprised it didn't show up on your radar.)

This immigration bill sounds like it has borrowed all kinds of sinister bits from the Patriot Act. At least in the US, the federal courts have been pretty good at striking down parts that violate the Constitution. In the last 5 years, there have been numerous successful challenges in the courts to a number of large draconian sections of the Patriot Act that were riding roughshod over civil liberties. I don't know if the NZ Supreme Court has the power to do the same in NZ. I hope so, although the lack of a written constitution must make that a little difficult.

Simon Bidwell said...

Hey Cecilia

NZ legislation is generally drafted by lawyers (or at least legally-trained) people in the Parliamentary Counsel Office. I think they may outsource some of it (google and correct me if I'm wrong).

You're right, I hadn't picked up on the double jeopardy issues. This is what I could find after a quick look:

Blog post from often outraged libertarian leftist; and

question in parliament from the Greens.

So, the usual suspects -- little comment it appears from the law sector.

Aha..and yes, I see it has now been passed...

As to striking down bits of law...well, we do have the Bill of Rights Act, with which all legislation is supposed to be consistent, but how robust that is, and whether parliament can in fact decide to explicitly override it...strike me down for my lack of constitutional knowledge. I could do some googling (and I guess will), but you would probably find the explanations and assess them with a much more informed eye than I.

The NZ courts certainly played a role in eventually extracting Ahmed Zaoui from his Kafkaesque situation, but again I'm poor with the details. Gordon Campbell was a genuine crusading journo in that case, and if you read his posts you'll his the opinion that this Bill is trying to close the loopholes that that tripped up the govt over Zaoui.

Susan said...

I can't believe the fundamental rights that are being swept away by our government in such haste before the end of the parliamentary term. It's extremely disturbing that judicial oversight of the immigration decisions is part of the proposed legislation. I suspect that the role of the courts in the Ahmed Zaoui case was perceived by officials to be counter to their interests and power and they want to get rid of it. I certainly hope that part of it at least will outrage public opinion but I am not particularly optimistic given the total lack of debate or even interest that allowed the double jeopardy protection enshrined in law for hundreds of years to be done away with overnight without a murmur even from the legal profession. The week that it passed into law the popular media were more concerned with the model and the English rugby team! Maybe we get the politicians and media we deserve... but I despair of my fellow citizens.