Monday, October 15, 2007

Immigration Bill: arbitrary arrest, indefinite detention

So far, New Zealand has avoided much of the madness of George Bush's "war on terror". Other countries have significantly restricted freedoms and violated human rights, subjecting suspected terrorists to control orders and indefinite detention, and even torture. We haven't. But the government's new Immigration Bill will change that, at least as far as visitors and immigrants are concerned. Buried in there among the arrest powers (most of which are aimed at enforcing deportations) is a clause which allows the arrest of anyone who is

on reasonable grounds, suspected by an immigration officer or a member of the police to constitute a threat or risk to security.
Once arrested, they can then be detained indefinitely under a warrant of commitment, or deported without any proper judicial process, all on the basis of secret evidence they are forbidden from effectively challenging.

The breadth of this clause is astounding. This is not about new arrivals and people who turn up at the airport with a bad security record. It applies to anyone. Tourists, visitors, students, even permanent residents. People who have lived here for years, who can work, receive superannuation, and vote, will be subject to arbitrary arrest and detention. All those Australian and British citizens who came here years ago but never bothered to apply for citizenship (because as de facto citizens it would make no difference to their lives) - people who are New Zealanders in every sense of the world, despite their lack of paperwork - will likewise be subject to arbitrary arrest and detention.

The potential for abuse here is astounding. While current law allows police to arrest on suspicion, it must be suspicion of having committed a particular offence. Removing that and replacing it with a vaguely-defined criteria of being a "risk to security" is simply asking for police and immigration officers to enforce their prejudices rather than the law. We've also seen in recent years several cases of people being victimised by unfounded allegations of terrorism made through MPs or bottom-feeding media outlets - the latest apparently being the result of some sort of employment dispute. Under this law, those people could very well have ended up being arbitrarily deported or in prison.

The clause is also likely to fall foul of the BORA's affirmation of freedom from discrimination, as it clearly discriminates on the basis of national origin (prohibited by s21 (g) of the Human Rights Act). Now, in a sense immigration law is all about discriminating on the basis of national origin - but it's supposed to be about who is allowed into the country, not whether they are equal before the law and enjoy basic human rights while they are here. It was on that basis that the UK House of Lords found a system allowing for the indefinite detention of foreigners - but not British citizens - suspected of terrorism to be unlawful back in 2004. In New Zealand, our Bill of Rights Act affirms that the right to liberty, the freedom not to be arbitrarily arrested or detained, applies to everyone, not just citizens. And from a moral perspective, if we wouldn't tolerate this sort of treatment for New Zealand citizens, we should not tolerate it for permanent residents or visitors either.

The proper way of dealing with threats to security is prosecution. This allows the evidence to be fully tested before a jury, and ensures that the government actually has to prove its case. The proposed changes in the Immigration Bill would remove that vital safeguard, and allow the government to inflict significant punishment having convinced only itself. And that is not something any of us should be happy with.