Even as the legal brains of the country denounced it as discriminatory, the Immigration Amendment Bill passed its third reading in Parliament on June 13, paving the way for its enforcement as legislation.
Such a divide is not new as the legal profession in this country is known for its independence and integrity and takes a non-partisan and dispassionate view of issues that tend to either upset the applecart or place unfortunate people in disadvantaged situation.
In moving the Bill, Immigration Minister Michael Woodhouse had spoken about the need for fresh legislation that would empower the Government and its officials to manage ‘mass arrivals,’ and deter human traffickers from smuggling people across our waters.
Active smugglers
“New Zealand is a growing target for boats from Asia, as demonstrated recently by the Geraldton boat carrying 66 Sri Lankan asylum seekers, which was on its way to New Zealand when bad weather struck,” he said.
Defining ‘mass arrival,’ as a group of more than 30 persons, the proposed Bill would enable the law enforcement agencies to detain them for a maximum period of six months or extend such detention to 28 days at a time, subject to an order obtained from a District Court.
Mr Woodhouse insisted that the Amendment does not either prescribe arbitrary or indefinite detention or breach our international obligations to asylum seekers.
“The arrival of a vessel carrying asylum seekers has the potential to quickly overwhelm New Zealand’s immigration and court systems. It could also have significant security implications – overseas experience shows it is often difficult to establish the identity of those arriving on such vessels. Having the ability to detain people being smuggled into New Zealand is vital to give agencies time to establish and confirm identities, and assess whether an individual poses a risk to national security or public safety,” Mr Woodhouse said.
Arbitrary & non-compliant
But New Zealand Law Society has not only spoken down the Bill but also said that it should be withdrawn.
Dr Rodney Harrison QC said that the Bill was legally flawed, since it breached the International Human Rights and Refugee Law.
Presenting the views of the Society to Parliament’s Transport and Industrial Relations Committee, he said that the Bill focused on the imposition of discriminatory sanctions on refugee status claimants who arrive in New Zealand by “mass arrival,” in contrast to those who do not, and was therefore inconsistent with New Zealand’s obligations under the Refugee Convention.
“The right to seek asylum in other countries from prosecution is recognised internationally as a fundamental human right. Imposing sanctions on those who arrive here as part of a “mass arrival” and associated measures in the Bill involves an unjustified limit on the right to not be arbitrarily detained, as affirmed by the New Zealand Bill of Rights Act 1990,” he said.
Undesirable law
According to Dr Harrison, many UN documents showed that detention of asylum seekers was inherently undesirable and should be normally avoided.
“Detaining authorities should assess, on a case-by-case basis, whether there is a compelling need to detain an asylum seeker, not just because they arrived in a boat with over 10 people. The Bill shows insufficient regard to alternatives to detention. International law draws no distinction between the obligations owed to asylum seekers based on mode of arrival,” Dr Harrison said and asked, “Why is an arrival of only 11 people sufficient to trigger a proposed detention regime?”
Mr Woodhouse claimed that the Amendment was part of ensuing changes.
He said that such changes would include limits on family reunification and reassessment of a claimant’s refugee status after three years and before a person can apply for permanent residence.
Immediate family can be sponsored only after the person concerned has been granted residence but extended family will be ineligible.
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