Refugee and protection decision-making

There is one key policy decision resulting from the review of the classified information provisions that is inconsistent with earlier decisions made by CBC and Cabinet [CBC Min (07) 20/14, CAB Min (07) 14/1A, CAB Min (07) 18/3]. Agencies have agreed that where a refugee and/or protection decision is to be made using classified information, the decision should be made by the Immigration and Protection Tribunal (Tribunal), not a Determination Officer.

The policy rational for this decision is two-fold. Firstly, it reduces the number of people who may have access to the classified information. This is a safeguard for protecting the information. Secondly, it escalates a refugee and/or protection decision-maker to that of a District Court Judge of the Tribunal ensuring a decision is made at a higher level.

I propose, therefore, that Cabinet rescind the November 2006 CBC decision that:

"in initial decisions using classified information...all protection decisions involving classified information must be made by senior security-cleared determination officers to ensure that the experts in international law are making the decisions" [CBC Min (07) 20/14]

And instead, agree

"all refugee and protection decisions using classified information must be made by the Immigration and Protection Tribunal".

Role of the Inspector-General

The classified information system in the draft Bill does not provide a role for the Inspector-General of Intelligence and Security (Inspector-General). Agencies agreed this should be made explicit in the Bill. This will ensure the integrity of the classified information system that has been agreed.

Definition of security

Agencies agreed that a definition of security should be included in the draft Bill. The concept of security is central to the use of classified information in the exclusion criteria, decision-making, and deportation of persons threatening security.

If the definition was not incorporated into the Bill, challenges to what constituted security, in the immigration context, could be made in the courts.  This could impact negatively on the goal of firm, fast and fair decision-making in cases of security concern.

Agencies agreed that the definition should:

• be fit for purpose for the operation of the immigration system consistent with the provisions for the use of classified information in the exclusion criteria, decision-making and for deporting persons threatening security, and
• include the concepts of defence, counter-terrorism, trans-national crime and reputational issues for New Zealand.

I propose that, subject to any refinement during drafting, the definition of security in the Bill be:

"security,

1. means:
   1. the defence of New Zealand
   2. the protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand
   3. the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being, reputation, or economic well-being
   4. the protection of New Zealand from activities within or relating to New Zealand that-
      1. are influenced by any foreign organisation or any foreign person; and
      2. are clandestine or deceptive, or threaten the safety of any person; and
      3. impact adversely on New Zealand's international well-being, reputation, or economic well-being
   5. the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act
   6. the prevention, investigation, and detection of organised crime, including trans-national organised crime, and
2. in an international security context, includes the safety and stability of the international community, through co-operative measures such as international conventions and other arrangements or agreements between countries".

This definition draws from the definition of security in the NZSIS Act 1969 but is broader than that Act's definition to be fit for use in matters of national or international security, criminal conduct or significant reputational harm to New Zealand as agreed by CBC and Cabinet [CBC Min (07) 20/14, CAB Min (07) 14/1A, CAB Min (07) 18/3]^[1]. The Bill will also contain a clause stating that the definition of security in the immigration context does not impact on the definition of security in the NZSIS Act 1969.

It is proposed that consistent with the definition above references to "national or international security" in the Bill be re-drafted to refer to "security" only. This would require Cabinet to agree to rescind the CBC decisions to specifically refer to "national and international security" in the Bill in the areas of exclusion, decision-making, deportation, review and appeal, monitoring and detention and classified information [CBC Min (07) 20/14].

Agencies note that the proposed definition of "security" is consistent with international understandings of security and is comparable to those used in Australia and Canada - where "security" is defined in legislation, and with the United Kingdom, where is it a matter that has been determined through jurisprudence.

Offence for retaining or disclosing official information

The Bill also requires that where classified information is withdrawn by the owning agency, all information must be returned to that agency. For the avoidance of any doubt, the Bill will clarify that a person can be charged with an offence under section 78A of the Crimes Act 1961 where classified information is unlawfully retained.

The penalty for the offence of "Wrongful communication, retention, or copying of official information" under the Crimes Act 1961 is imprisonment for a term not exceeding 3 years.

The Bill requires that classified information is not disclosed where it is used in immigration and refugee and protection decision-making. This is the core safeguard for the information. For the avoidance of any doubt, the Bill will clarify that a person can be charged with an offence under the Summary Offences Act 1981 where classified information is unlawfully disclosed.

The penalty for the offence of "unauthorised disclosure of official information" under section 20A of the Summary Offences Act 1981 is imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 on conviction.

Refugee and protection decision-making

Rescind the November 2006 CBC decision that "in initial decisions using classified information...all protection decisions involving classified information must be made by senior security-cleared determination officers to ensure that the experts in international law are making the decisions" [CBC Min (07) 20/14]

And instead,

Agree that all refugee and protection decisions using classified information must be made by the Immigration and Protection Tribunal

Role of the Inspector-General

Note that the classified information system in the draft Immigration Bill does not provide a role for the Inspector-General of Intelligence and Security (Inspector-General) and that this will be made explicit

The definition of security

Note the concept of security is relevant to the:

1. exclusion criteria
2. use of classified information in decision-making, and
3. deportation of persons threatening security

Agree that, subject to any refinement during drafting, the definition of security in the Immigration Bill be:

"security:

1. means:
   1. the defence of New Zealand
   2. the protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand
   3. the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being, reputation, or economic well-being
   4. the protection of New Zealand from activities within or relating to New Zealand that:
   5. are influenced by any foreign organisation or any foreign person; and
   6. are clandestine or deceptive, or threaten the safety of any person; and
   7. impact adversely on New Zealand's international well-being, reputation, or economic well-being:
      1. the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act
      2. the prevention, investigation, and detection of organised crime, including trans-national organised crime, and
2. in an international security context, includes the safety and stability of the international community, through co-operative measures such as international conventions and other arrangements or agreements between countries"

Note that the Immigration Bill will also contain a clause stating that the definition of security in the immigration context does not impact on the definition of security in the New Zealand Security Intelligence Service Act 1969

Rescind the Cabinet Business Committee decisions to refer to "national and international security" in the Bill in the areas of exclusion, decision-making, deportation, review and appeal, monitoring and detention and classified information

And instead,

Agree that consistent with the definition of security in recommendation 9, that references to "national or international security" in the draft Immigration Bill be re-drafted to refer to "security" only

Note that the proposed definition is consistent with international understandings of security and is comparable to those used in Australia, Canada and the United Kingdom

Offence for retaining or disclosing official information

Note that for the avoidance of any doubt, the Immigration Bill will clarify that a person can be charged with an offence under the Crimes Act 1961 where classified information is unlawfully retained after it has been withdrawn by the owning agency

Note that the penalty for the offence of "unauthorised disclosure of official information" under section 78A of the Crimes Act 1961 is imprisonment for a term not exceeding 3 years on conviction

Note that for the avoidance of any doubt, the Immigration Bill will clarify that a person can be charged with an offence under the Summary Offences Act 1981 where classified information is unlawfully disclosed

Note that the penalty for the offence of "unauthorised disclosure of official information" under section 20A of the Summary Offences Act 1981 is imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 on conviction

Publicity

Note that the Minister of Immigration intends to release this paper on the Department of Labour's website along with the suite of Act review papers, and

Note that some sections may be withheld under the Official Information Act 1982.

Hon David Cunliffe
Minister of Immigration

Adequacy statement

This Regulatory Impact Statement (RIS) was prepared by the Department of Labour (the Department) and is considered by the Department to be adequate.

Status quo and Problem

In the context of the Immigration Act review, in November 2006, the Cabinet Business Committee (CBC) decided that "in initial decisions using classified information...all protection decisions involving classified information must be made by senior security-cleared determination officers to ensure that the experts in international law are making the decisions" [CBC Min (07) 20/14].

It is important that, where it is used, classified information remains protected. An important protection is that the classified information is viewed by a limited number of people. In the refugee and/or protection decision-making process, it is not necessary that a Determination Officer makes an initial decision and sees the classified information.

Objectives

The proposal in the attached Cabinet paper seeks to limit the number of people who may see classified information where it is used in refugee and/or protection decision-making.

Alternative options

The alternative to the preferred option is to retain the status quo agreed by CBC in November 2006 [CBC Min (06) 20/14].

Preferred option

The preferred option is that in initial decisions using classified information, all refugee and/or protection decisions using classified information must be made by the Immigration and Protection Tribunal.

The preferred option reduces the number of people who may have access to the classified information. This is a safeguard for protecting the information. Secondly, the option escalates a refugee and/or protection decision-maker where classified information is used to that of a District Court Judge of the Immigration and Protection Tribunal ensuring a decision is made at a higher level.

Implementation and review

The Immigration Bill is currently being drafted and is to be introduced to the House in July 2007.

Consultation