Summary of proposals

The discussion paper presents two options:

1. Maintain the status quo and continue to enable a person to be detained without a warrant of commitment for up to 48 hours in the case of deportation or up to 72 hours in the case of removal, or
2. Extend the maximum period of initial detention without a warrant of commitment in expulsion cases to up to 96 hours (four days).

The discussion paper indicates that there is no clear preference for either option at this stage.

Submitter response

Eighty seven submitters responded to this question: 49 submitters responded on behalf of an organisation and 38 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, airline representatives, government agencies and one political party.

The response from submitters was mixed. Approximately 45 percent of submitters who responded to this issue agreed that the maximum period of initial detention without a warrant of commitment should be increased to 96 hours in expulsion cases. Approximately 35 percent of submitters were opposed to this option, and the remainder either were unsure or did not express a clear preference either way.

Submitters who support the extension of the initial detention period generally did not elaborate on their views. The main concerns expressed about this option were that there do not appear to be strong reasons for extending the initial period of detention and that it could constitute arbitrary detention, contrary to section 22 of the New Zealand Bill of Rights Act 1990. A number of submitters commented that the initial detention should be for the minimum justifiable period, with access to legal advice and judicial consideration of the need for ongoing detention as soon as possible. Submitters also commented on the need for consistency with New Zealand's domestic and international human rights obligations.

Detention rights should always be kept to a minimum and there is no justification for extending the period of initial detention. Administrative expediency should not be a consideration when important human rights are at stake. (New Zealand Association for Migration and Investment)

The reasons provided to support this proposal are not sufficient to outweigh the rights of detainees to have early access to the legal system to review the ongoing need for detention. The need to renew a warrant of commitment provides the individual with greatest access to the legal system, ensures that the need for continued detention is determined by the appropriate authority and enables the individual to seek assistance to appeal that decision where appropriate/necessary. (New Zealand Law Society)

Some submitters acknowledged that there could be delays in removing a person on the next available flight but did not consider that these issues should or would be addressed by extending the initial detention period. Airline representatives confirmed the difficulties in ensuring persons liable for expulsion have the appropriate travel documentation but did not indicate a preference for or against extending the initial detention period.

To the list of factors influencing removal time given in Paragraph 803 we would add: unsafe country of origin or destination; and statelessness. Neither of these, nor the majority of reasons given in the list would be overcome by extending the period to 96 hours. Given this, such an extension could constitute arbitrary detention. (Human Rights Foundation)

We endorse this identified difficultly and urge the Department to work to develop solutions. It is a major problem for airlines. (Board of Airline Representatives New Zealand)

A number of submitters expressed the view that the status quo should be maintained, with a warrant being required in order to detain a person longer than 48 hours in the case of deportation or 72 hours in the case of removal. One submitter, however, considered that the maximum period should be 48 hours in both cases.

One submitter commented that 96-hour detention could be acceptable if the following pre-conditions were met:

• it follows the issue of a removal/expulsion order
• the detainee is given access to a lawyer for the purpose of challenging the detention
• the detainee is clearly informed of his or her rights in a language that s/he understands
• the detainee is given a meaningful opportunity and all necessary assistance to exercise these rights.

Summary of proposal

The discussion paper proposes that judges have discretion to authorise detention, after the initial detention period, for up to 28 days at a time rather than review the renewal of a warrant of commitment every seven days as is currently required.

Submitter response

Eighty three submitters responded to this question: 45 submitters responded on behalf of an organisation and 38 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, a government agency and one political party.

The response from submitters was mixed. Approximately 40 percent of submitters who addressed this issue agreed that the review period for warrants of commitment for detention should be increased to no more than 28 days. Approximately 40 percent of submitters were opposed to the proposal, and the remainder either were unsure or did not indicate a clear preference either way.

A number of submitters expressed qualified support for the proposal, commenting that:

• every 14 days would be more appropriate
• there should be provision to allow the detainee to apply for conditional release during the period,
• legal aid should be available, and/or
• the detainee should be allowed to waive the weekly review period if they are represented by counsel other than the duty solicitor.

Some submitters commented on the need to emphasise the discretionary nature of the judge's power to order detention beyond seven days. A participant at a public stakeholder meeting suggested that the legislation include guidance about the factors a judge should take into account when determining the period of detention.

Many submitters expressed concern that the current system of weekly reviews is a "rubber stamping" exercise and should not be carried over into the new system.

The current 7-day review period is viewed by many as little more than a "rubber-stamp" procedure. If this practice was carried into a 28-day review period, it may impact on the right to not be arbitrarily detained unless the requirements of a fair trial are established. (Wellington Community Law Centre)

Submitters who oppose the proposal considered that regular and frequent reviews are required to assess the ongoing need for detention and protect the human rights of detainees. Submitters commented that circumstances can change within a short period of time and detainees need to be able to present new information to the courts as soon as possible.

It is a fundamental right for a detained person to have the legality of their detention reviewed within a reasonable time. The present system allows for a regular independent assessment of whether such detention is justified. (Amnesty International New Zealand)

As with the possible extension of the initial detention period, a number of submitters commented that extending the timeframe for review for reasons of administrative convenience could constitute arbitrary detention and/or contravene section 23 (1) of the New Zealand Bill of Rights Act, which includes the right to consult a lawyer without delay. Some submitters commented on the vulnerability of many detainees.

Any proposal to increase the amount of time a person may be held without a warrant of commitment, or seven-day extension thereof, should be resisted as in my experience the regular supervision entailed by the present system stops abuse. Many of the people thus held have poor, or no English, and limited understanding. Often they have had no access to any form of legal representation. (Individual submitter)

The Auckland Refugee Council expressed the view that there should be a presumption against the detention of refugee status claimants and that, in such cases, the review period should be extended only if a person has been convicted of a crime. The Council also commented on the framework for the review of detention.

We also believe that there should be a statutory framework for frequent and regular reviews of decisions to detain, legal aid available for such reviews AND that the District Court should have 1. statutory discretion to release detainees; and 2. an obligation to release detainees where Immigration is unable to prove that there are well founded security or identity concerns in relation to such detainees. (Auckland Refugee Council)

As with submitters who support the proposal, a number of submitters who oppose the proposal commented that 10 or 14 days would be a more appropriate period if the review period is to be extended. One submitter suggested the Canadian approach would be preferable, with the first review after seven days and a review every 30 days thereafter. Other submitters suggested that the review period should only be extended with the consent of the detainee, who would have to be represented by counsel to give such consent.

Summary of proposal

The discussion paper proposes that a third exception to the three-month maximum period of detention be included in the legislation. The discussion paper proposes that a judge may detain a person for up to six months in cases where the judge is satisfied that administrative requirements for the expulsion could not be finalised within the three-month period, through no fault of the Department of Labour. The onus would be on the Department of Labour to do everything possible to arrange removal within three months.

Submitter response

Eighty submitters responded to this question: 42 submitters responded on behalf of an organisation and 38 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, a government agency and one political party.

As with the other proposals to extend statutory detention periods, the response from submitters was mixed. Approximately 45 percent of submitters agreed that detention be allowed for up to 6 months in cases where administrative delays beyond the control of the Department of Labour prevent earlier removal, and 45 percent disagreed.

A number of submitters expressed qualified support for the proposal, emphasising the need for the provision to be used in truly exceptional circumstances and only following consideration by the court.

RCNZ would not object to an extension of the maximum period during which a person slated to be removed from New Zealand may be detained, provided the onus is placed on the NZIS to satisfy the Court that, on a balance of probabilities, that without that extended period of detention, the removal could not be carried out. (Refugee Council of New Zealand)

Submitters who oppose the proposal considered that the maximum detention period is already too long and that any extension could result in the detention being considered arbitrary under section 22 of the New Zealand Bill of Rights Act. A number of submitters commented that there is insufficient justification for the proposal, with some expressing concern that administrative processes could take more than three months.

This proposal met unanimous opposition. There seems no justification for extending already overlong periods of detention. (Immigration and Refugee Law Committee, Auckland District Law Society)

Despite the administrative justifications made for this proposal, such a move would encroach unacceptably on the rights of individual detainees and may be construed as an extra-judicial means of imposing a penal sentence. (New Zealand Law Society)

If the bureaucracy was efficient it would get its job done before the 3 months period was up. (Individual submitter)

One submitter expressed the view that, if there is to be an extension, it should only be in the circumstances proposed in the discussion paper and the person detained should have the right to access a lawyer without delay and in private, and that this should be funded by the Government.

Summary of proposal

The discussion paper proposes that the legislation enable the court to waive the existing requirement to renew a warrant of commitment every seven days where a person has been refused entry to New Zealand and is serving a prison sentence for criminal behaviour. The discussion paper suggests that the requirement for judicial review of immigration detention be waived until seven days after the end of the criminal sentence.

Submitter response

Seventy submitters responded to this question: 33 submitters responded on behalf of an organisation and 37 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, other community groups, businesses and a government agency.

Approximately 60 percent of submitters agreed that the court should be able to waive the requirement to renew a warrant of commitment to detain a person who has been refused entry to New Zealand and is serving a prison sentence for criminal behaviour. A number of submitters expressed qualified support for the proposal, commenting that:

• the application for the renewal requirement to be waived should made by the affected person
• the requirement should only be able to be waived while the person is in prison and not while they are on bail or following their release
• review of the warrant of commitment should take place before the scheduled release date
• detainees should have full access to review and appeal rights, and/or
• particular care should be taken in situations where a person is charged with passport fraud and is determined to be a refugee.

Approximately 20 percent of submitters opposed the proposal that the court should be able to waive the requirement to renew a warrant of commitment to detain a person who has been refused entry to New Zealand and is serving a prison sentence for criminal behaviour. Most of these submitters did not elaborate on their views. One submitter expressed the view that there should not be a warrant of commitment at all if a person is serving a prison sentence. Another commented that the proposal is open to abuse and could amount to arbitrary detention.

Summary of proposal

The discussion paper proposes that any refugee status claimant who meets the criteria for detention may be detained while their claim is being determined, regardless of whether they claimed refugee status at the border or after arrival in New Zealand. The discussion paper notes that, under the criteria for detention, a person could only be detained if they were refused entry at the border, were in New Zealand unlawfully or claimed refugee status under a different identity to that specified in their permit. In all circumstances, secure detention would be limited to very high-risk claimants where the risk could not be managed through open detention or release on conditions and where it was not appropriate to grant a permit. Detention would be subject to judicial review by the courts.

Submitter response

Seventy five submitters responded to this question: 42 submitters responded on behalf of an organisation and 33 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, the United Nations High Commissioner for Refugees, a government agency and one political party.

There was a difference in response from organisations and individuals. Of the organisations that responded to this issue, there was a fairly even split between those who support the proposal and those who oppose it. Of the individual submitters, approximately two thirds indicated support for allowing all high-risk refugee status claimants to be detained, and approximately 20 percent were opposed to the proposal.

Most submitters who expressed support for the proposal did not elaborate on their views. One submitter commented that the ability to detain is essential to counter allegations that New Zealand is a "soft touch" and another expressed the view that all refugee status claimants should be detained in a similar way to Australia.

The United Nations High Commissioner for Refugees (UNHCR) expressed qualified support for the proposal.

UNHCR answers the question in the affirmative PROVIDED that the same strict criteria for detention as stated at Paragraph 896 of the Discussion Paper are applied and UNHCR's relevant Guidelines on Detention are duly taken into account. (United Nations High Commissioner for Refugees)

The UNHCR also commented that detention of asylum seekers is undesirable and should only be undertaken where necessary, after having considered all possible alternatives.

Many submitters expressed concern that the proposal is contrary to the Refugee Convention. They commented that the purpose of the proposal appears to be to provide a deterrent to people claiming refugee status after arrival in New Zealand, rather than at the border, which does not meet the requirement that detention only be undertaken where necessary. Concerns were also expressed about the detention of people who use fraudulent documents given the Refugee Convention requirement that refugees not be punished for travelling on false documents.

Definitions of 'high risk' asylum seekers within the discussion paper includes those detainable on counts of identity fraud because of use of false documents, which contravenes the 1951 Geneva Convention right of refugees to not be punished for travelling on false documents. The purpose of this proposal to use detention as a deterrent to asylum-claims from within communities, amount to punishment of asylum-seekers, which is also unlawful under the Convention. (Individual submitter)

Some submitters commented on why refugee status claimants travel on false documents.

Those making decisions on detention for those claiming refugee status must keep in mind the reasons why refugee status claimants enter the country on false documentation, which may include fear of government agencies, fear of reprisals from their home government, instructions from "people smugglers" and so on. (New Zealand Law Society)

Others expressed concern that measures aimed at deterring people from unlawfully entering New Zealand to claim refugee status would adversely affect genuine refugees.

Increased deterrence measures are not likely to make any difference in this area, but will simply create additional barriers for genuine asylum seekers, who have little option but to use any means possible to escape persecution. (Human Rights Foundation)

As with other proposals in this area, submitters expressed concern that this proposal could result in arbitrary detention and the infringement of individual rights. Some submitters considered that there should be a presumption against the detention of refugee status claimants given the Refugee Convention requirement that refugees only be detained "where necessary". Others emphasised the need to make decisions on a case-by-case basis, and for reasons other than the fact that a refugee status claim has been lodged.

We firmly believe that there should be a built in presumption against detention for refugee claimants explicit in legislation. We are conscious that a number of refugee claimants have ended up in prison pending removal. Those who make a subsequent application for refugee status are sometimes subject to many months of incarceration. We would like to have made available to such people a thorough investigation as to their humanitarian circumstances in order for bail or conditional release to be considered. (Auckland Refugee Council)

Caritas considers that there is too frequent use of detention of refugees, and that the status quo at times already resembles a borderline situation of arbitrary detention. We believe there is a need for a re-examination of the approach taken in regard to people seeking refugee status in New Zealand who appear to be routinely detained in custody. (Caritas Aotearoa New Zealand)

If a person has not been detained for some other lawful reason (e.g. breach of immigration law or an extradition request), we see no reason why the mere fact that a refugee claim has been lodged should make that person liable to detention. (Immigration and Refugee Law Committee, Auckland District Law Society)

A number of submitters expressed the view that a decision to detain a refugee status claimant should only be made at the border. One submitter suggested that if a person has been in the community for some time with no evidence of risk, there is no basis for subsequently detaining that person. The submitter commented that there should be clear and robust information on why a person poses a security risk, and that information from a refugee status claimant's home country should not be considered conclusive.

Summary of proposal

The discussion paper proposes that immigration officers have the power to undertake immigration detention in places approved by the Chief Executive for that purpose. This would enable the Department of Labour to detain a person for immigration purposes in places other than Police or Corrections facilities.

Submitter response

Seventy eight submitters responded to this question: 45 submitters responded on behalf of an organisation and 33 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, airline representatives, the United Nations High Commissioner for Refugees, a government agency and one political party.

Most submitters agreed that people detained for immigration purposes should not be detained alongside remand prisoners and convicted criminals. However, submitters expressed different views about the appropriate response to this issue. Approximately 55 percent of submitters who addressed this issue indicated support for enabling immigration officers to undertake secure detention. Approximately 25 percent opposed the proposal and approximately 20 percent either were unsure or did not indicate a clear preference either way.

Submitters who support the proposal commented on the need for detention to take place in facilities that:

• meet international standards, including UNHCR guidelines
• are staffed by well-trained personnel, and/or
• are separate from facilities for Quota refugees, who are among New Zealand's most vulnerable residents.

Some submitters supported the use of separate facilities but expressed the view that immigration officers should not undertake secure detention.

Immigration detainees should certainly be treated differently from remand prisoners and convicted criminals, and should not be held in the same facilities as criminal offenders. The power to undertake secure detention is not a power to be extended to immigration officers who, in general, do not have sufficient qualifications, skill nor expertise. Those who undertake secure detention should have appropriate police/corrections experience balanced by an understanding of the human rights issues involved. (New Zealand Law Society)

The UNHCR expressed the view that the legislation should clearly define which immigration officers would have the power and what is meant by "undertake" secure detention. The UNHCR also commented that any designation of a place of immigration detention by the Chief Executive should occur before detention takes place and not after its commencement.

Some submitters expressed support for the proposal but questioned why additional powers of detention are proposed in the absence of adequate facilities.

Since the Paper acknowledges that detention facilities are inadequate and clearly states that no new facilities are intended to be built, why does it seek so many extra powers of detention? (Individual submitter)

A number of submitters reiterated their view that detention should always be a measure of last resort and only undertaken when absolutely necessary. Some of these submitters expressed concern that the designation of additional detention facilities may lead to increased use of detention and opposed the proposal on this basis.

This submission opposes the extension of powers to create new places of detention, as there is no guarantee that the 'limited' and 'temporary' nature of such places of detention as envisaged in the policy process, would remain so in practice, or that there will be any safeguards against abuse of the power. (Individual submitter)

Detention for immigration purposes should only be used in extreme circumstances. Immigration detainees should be dealt with outside the prison system and preferably in non-custodial options. It follows that it is inappropriate to create new facilities. The aim should be to minimise the use of correction facilities, not create more. (Human Rights Commission)

Some submitters commented that there is no need for this power, and one submitter suggested that consideration be given to home detention-type devices as an alternative.