Monday, November 21, 2011

No reasons

One of the more odious changes introduced by the Immigration Act 2009 was the massive expansion of what the Act terms "absolute discretion" - the ability to make a decision without having to give reasons. Previously this applied only to decisions made about people outside New Zealand, but the new Act expanded it to cover a host of decisions about people inside New Zealand as well (notably, "last ditch" appeals to the Minister from people unlawfully in New Zealand). The purpose of this change was to make it easier to kick people out, by stripping them of any grounds for review. However, these decisions can still be reviewed, by the Ombudsman. So, Immigration has come up with a simple solution: don't keep records. Their latest circular on handling such appeals - Internal Administration Circular 11-10 [PDF], issued just last week - contains a new section, instructing staff refusing to consider a request to:

not record any reasons or rationale for refusing to consider the request in either AMS notes or in the communication with the client.
There's a similar section for staff who have considered a request and made a decision:
The rationale and reasons for the decision should not be recorded, either on the template, in the notes or in communication with the client.
These clauses were not present in the circular's immediate predecessor, Internal Administration Circular 10-21 [PDF], and their net effect is to thwart any Ombudsman's review, by destroying the evidence.

But this isn't just an attack on the right to justice and the ultimate right of recourse to the Ombudsman. Its also a contravention of the Public Records Act, which requires all public bodies (including Immigration New Zealand) to

create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor
(The reason for this is in the Act's purpose clause: "to enable the Government to be held accountable by ensuring that full and accurate records of the affairs of central and local government are created and maintained". But accountability is exactly what Immigration doesn't want...)

While the Immigration Act allows Immigration staff to refuse to give reasons for a decision made in their absolute discretion, it does not require it, it does not require that those decisions have no reasons (that would make them, by definition, irrational and arbitrary), and it certainly does not require that no record of those reasons be kept. Failure to properly maintain public records is a crime, punishable by a $5,000 fine. And every Immigration officer who obeys this circular is putting themselves on the hook for that for every decision they make.

Government departments should obey the law. Government departments should certainly not be demanding that their staff commit crimes in order to do their everyday jobs. But that's exactly what Immigration is doing. I'm not sure whether the changes were demanded by the Minister, or are just another example of their arbitrary control-freakery, but either way, they should be reversed.