Immigration Act Review III: Detention

This is the third post in a series on the government's Immigration Act Review Discussion paper [PDF]. The review aims to completely rewrite the Act so as to "modernise" and "simplify" it - however, in practice, this "modernisation" and "simplification" seems to involve treating people unfairly while making it as difficult as possible for them to challenge their treatment.

The first post in this series dealt with Chapter 5: Decision-making, while the second covered Chapter 6: Exclusion and Expulsion. This post will cover Chapter 12: Detention.

Currently, the law allows the police to arrest and detain people where they have been served with a removal order or are to be deported, or where they have arrived and been refused entry or their eligibility for a permit cannot be determined (typically this covers cases where people, usually refugee claimants, arrive on false documentation). The conditions and duration of detention vary depending on the exact reason, but it is typically short; those arrested pending deportation or removal can be detained for only 48 or 72 hours respectively, after which immigration officials must persuade a judge to grant a Warrant of Commitment allowing continued detention for some period of time, typically a week (or up to 28 days in the case of someone refused a permit). Given the multiple different procedures and rules for detention, and the desire to standardise on one system for expulsion, there's clearly scope for procedural streamlining here - but Immigration wants to go further than that. They want to detain people for longer, with far less oversight by the courts, they want a general power to detain those in the country illegally against which no order has been served, or anyone claiming refugee status from within New Zealand rather than at the airport, and they want to detain those people themselves, rather than having to rely on the police or the Department of Corrections. In keeping with the general tenor of the review, most of these proposals ignore the human rights of potential detainees in favour of the administrative convenience for officials.

For example, the review proposes to increase the maximum period of detention without a warrant to 96 hours, or four days. Their reason is that the current period (48 or 72 hours) is too short to arrange a deportation - and much space is spent on the time-consuming administrative procedures involved. No thought is given to improving the efficiency of those procedures (there are a few obvious shortcuts which can be made) - and even less to the principle, fundamental in a free society, that any detention requires the strongest justification. Instead, they are proposing being able to throw people in jail for longer just because it is convenient for them.

It's a similar story with Warrants of Commitment. Immigration wants to increase the review period from 7 to 28 days, thus significantly decreasing oversight of the necessity of detention. Again, this is justified on administrative grounds - its just so much hassle having to go before a judge and make a case that you need to keep someone in jail. But these are short-term detainees, and the current timeframe provides a very definite deadline to work towards. Any increase in that timeframe would reduce the pressure on immigration officials to work quickly, and raise the spectre of American-style immigration detention, where people are jailed for months or years (without the usual constitutional protections) while waiting for their paperwork to be done so they can finally be deported. I do not think that we should be giving officials an incentive to be lazy where people are being kept in jail. And on a more fundamental level, I do not think we should be sacrificing the Magna Carta principle that detention must be justified simply to reduce the paperwork.

The review proposes increasing the maximum length of detention while waiting for deportation from three to six months. The justification is that it can sometimes take longer than three months to obtain travel documents. Interestingly, the review notes that both Australia and the UK reduce this problem by having arrangements with other countries allowing illegal migrants to be returned without documentation - but there is no proposal that New Zealand seek similar agreements. Immigration would rather jail people.

One of the scariest proposals is to allow the detention of anyone claiming refugee status from within New Zealand without proper documentation. This opens the doorway to Australian-style mass-detention of illegal immigrants - and ironically, at a time when Australia seems finally to be abandoning that "solution". Since when did we become Australians? And since when did seeking refugee status become a crime? This is nothing more than an attempt to deter claims, in violation of the spirit of the Refugee Convention.

Finally there's the question of who does the detaining. Here the Immigration Department wants to supplement its ability to declare places of immigration detention with the actual power to act as jailers. To some extent, they have such powers already - s140A of the Immigration Act allows the use of reasonable force to prevent those held in declared facilities from harming others, damaging property, or escaping custody - but these apply only after the issuing of a Warrant of Commitment. Initial detention still requires the use of police or prisons - which has attracted some criticism due to immigration detainees being held with criminals (a general problem for remand prisoners in our overcrowded prison system). Rather than working with police and the Department of Corrections to establish proper protocols for the treatment of immigration detainees and ensure that they are treated accordingly, Immigration's preferred solution is to cut those organisations (the ones that actually know how to run detention facilities and when the use of force is appropriate) out of the loop entirely. Instead, facilities (likely short-term holding rooms at airports) will be established and run by the Department of Immigration, and staffed by Immigration Officers. These Immigration Officers will supposedly be trained for the job, but given the low demand for such detention, it is unlikely that they will be full-time specialists - which will mean problems in ensuring that prisoners are treated properly, particularly in the event of violence. There is also the issue of oversight - the Department of Corrections has well-established (if flawed) oversight provisions to ensure that prisoners are treated lawfully and humanely, as well as established avenues of complaint. The review makes no mention of establishing similar oversight and complaint mechanisms for immigration detention. Combined, these two factors spell trouble. Ad-hoc detention by improperly trained staff who lack experience in running a detention facility and handling potentially uncooperative prisoners is simply a recipe for disaster.

Next: Chapter 10 - Compliance and Enforcement

Update: Inserted links.