This submission is made by the New Zealand Council for Civil Liberties (“NZCCL”); an incorporated society with a membership of over 80 members and supporters. The draft was circulated to the members and has benefitted from their input.
NZCCL has the following Objects, to -
(a) assist in the maintenance of civil liberties including freedom of speech and assembly,
(b) advance measures for the recovery and enlargement of civil liberties,
(c) encourage and support debate and dialogue within New Zealand on civil liberties, and
(d) educate and inform the people of New Zealand on issues and events arising from the application and operation of international and national treaties and legislation on human rights.
In relation to the Immigration Amendment Bill (No. 2), NZCCL is concerned at aspects that impinge on rights and protections contained in the New Zealand Bill of Rights Act 1990 (“BoRA”) and the Privacy Act 1993. NZCCL welcomes the opportunity to discuss these with the Committee.
The aspects of the Immigration Amendment Bill that the Council has concerns about are:
- the failure to confirm that Privacy Principle 6 (PP6) does apply to personal information that will be relied on in making absolute discretion decisions on the grant of visas under section 61 of the Immigration Act 2009 (the Immigration Act);
- changes to the search regime that allow for search of a dwellinghouse without a warrant;
- power to use force to collect biometric data from an individual.
1. Clause 8 – access to personal information
Immigration New Zealand (“INZ”) says the amendment is to clarify that the ability to request personal information under the Privacy Act does not apply to reasons for decisions made using absolute discretion (as defined in section 11 of the principal Act). NZCCL is concerned that this is only half the picture.
Currently INZ has difficulty separating out the reason for a decision, from the personal information that it holds about the person. As it stands, section 11 does not restrict Privacy Principle 6, and so INZ ought to, on request, disclose the personal information on which the decision is based.
INZ is loath to do this because, they say, this amounts to an unintended disclosure of the reasons for the decision.
NZCCL’s concern is that if this amendment is made, the personal information on which the decision is based in these visa cases involving absolute discretion, will not be made available.
It is fundamentally unfair to have a decision made on the basis of incorrect information; this is an aspect of natural justice, to which, under section 27(1) of the NZ Bill of Rights Act, everyone has a right. To ensure that decisions are made on a correct factual basis it is essential that there is a real and effective right to access the personal information on which the decision is based.
Because of the importance of natural justice, the Council suggests that the ideal approach is for INZ to be open about the information it is relying on in deciding whether to grant a visa or not, under section 61.
Adherence to the Privacy Act’s Privacy Principles (PP) would assist INZ in making sound, defensible decisions. For example, PP 8 states that before using personal information on which it intends to rely, the agency ought to take reasonable steps to ensure that the information is accurate, up to date, complete, relevant and not misleading. In other words, INZ should also give the person a reasonable opportunity to respond to potentially prejudicial information. PP 6 gives the right to access personal information held by the agency. PP 7 gives the person the right to request correction of information.
NZCCL submits that the clarification should be to confirm that PP 6 allows access to the personal information relied on in making the absolute discretion decision, but not to the discretionary assessment of that information.
2. Clauses 60 and 61 - power to search a dwellinghouse without a warrant
Clauses 60 and 61, amending section 277 and adding a new section 277A would allow immigration officers to search a dwelling house without a warrant; in the first case to look for employer records, in the second to look for unlawful employees.
Search of a dwellinghouse generally requires a warrant, except in an exigent situation; NZCCL refers to Part 4 of the Search and Surveillance Act 2012. The Immigration Act allows immigration officers powers to search without a warrant in an immigration control area, and when searching for a named person in order to execute a deportation order or removal notice, but we are not convinced that the case has been made out for its extension of this power to a dwellinghouse.
The extended power needs to be looked at in terms of section 21 of the BoRA; whether this is still within the bounds of a reasonable power of search.
A dwellinghouse is where people sleep, carry out personal functions; it is where children live. We should be very vigilant as to the powers conferred on immigration officers to search a dwellinghouse without a warrant.
The value of a search warrant is that the process of applying for it brings in an independent eye and tests the reasonableness of the proposed search. The requirement for a warrant is a safeguard against fishing expeditions by those searching.
NZCCL recognises that the process of obtaining a warrant takes a little more time. It does ensure a check that the immigration officer has reasonable grounds for the belief that a “specified person” or “specified employee” is in the dwellinghouse. The fact that a person does not have to be named increases the risk that unwarranted searches become fishing expeditions.
NZCCL says that the search of a dwellinghouse needs to require a warrant, even for a search of a dwellinghouse where work is carried out.
3. Clause 67 – Power to obtain biometric information by compulsion
The Council accepts that where a person has been served with a deportation order and the time has been allowed to access relevant appeal rights; there is a need to facilitate the steps to enable the person to be deported.
However, NZCCL would like to see recognition that the person is in detention and therefore is entitled to certain rights under section 23 of the BoRA; importantly the right to consult and instruct a lawyer, and to be informed of and enabled to exercise that right. Considering also that the person may be compelled by force to have biometric information collected, the right to be treated with humanity and with respect for the inherent dignity of the person, is relevant.
NZCCL agrees that the process set out in clauses 288 to 290A for the compulsory taking of biometric information has safeguards to protect the human rights of the person. Our assessment is that they probably are sufficient to minimise the intrusion on the person’s dignity, noting that the force must be no more than is reasonably necessary to achieve the legal objective of collecting the biometric data.
NZCCL has one suggestion to make, and that is to allow the person the additional safeguard of a having a support person of their choosing present when the collection takes place.
- The amendment to section 11 of the Immigration Act needs to make it clear that while Privacy Principle 6 does not apply to reasons for a decision, it does apply to the personal information relied on in making the decision;
- That clause 60, amending section 277, and clause 61 inserting section 277A (5) allowing a search to be carried out of any premises that is a dwellinghouse, require a warrant for the search;
- That in cases where biometric information is to be obtained by compulsion, the person be accorded the right to have a support person of their choosing present at the time; section 290A.
Thank you for the opportunity to make a submission on this Bill. NZCCL wishes to appear in support of this submission. Contact details are set out below.