Immigration Amendment Bill: assaulting civil liberties and limiting workers’ freedom

In the years following the September 11 2001 attacks, the world has seen a massive tightening of immigration controls. In this country, many New Zealanders’ first experience of this trend was the overnight quadrupling of the cost of maintaining a passport. In one fell swoop, the life of a passport was halved, from ten years to five, while the cost doubled as new “anti-terrorism” identification security features were added. In the US, the Immigration and Customs Enforcement (ICE) has gained, and proceeded to use, sweeping new powers to raid and subsequently deport “illegals”, mostly from Latin America.

The latest round of policy change comes with the Immigration Amendment Bill currently being debated in select committee. While this Bill was introduced by Labour, it appears to have support from National, ACT, New Zealand First and United Future. The Bill, if passed in anything remotely approaching its current form, will represent a massive attack on basic civil rights in New Zealand, not only for would-be immigrants or refugees but also for New Zealand citizens.

Secret Evidence

The new Bill proposes a radical overhaul of New Zealand’s policy on the screening of potential immigrants and refugees wishing to settle here. Following the Ahmed Zaoui case, where the state’s crude attempts to deny Zaoui even the most minimal of rights in conducting a defence, the government has decided to change the rules. The heads of many government departments and agencies will have the right to declare information classified if “in the opinion of chief executive of the relevant agency” it should not be available. All of this applies without the applicant having the right to challenge the decision. Even a summary of the “facts” will not be available by right. What this means is that applicants will have no idea what charges have been levelled against them or by whom. In a notorious case in the USA recently, a Palestinian man, Hany Kiareldeen was imprisoned for nineteen months on the basis of secret evidence, such as would be possible under the proposed legislation here. It finally emerged that the sole source of the “evidence” was Kiareldeen’s ex-wife, who had fabricated charges against him. In testimony to the US House Judiciary Committee in 2000, Kiareldeen described the use of secret evidence as ” profoundly contradictory to our principles of fairness and due process” and an attack on “the safety of the most vulnerable group of our society”.

In New Zealand, Ahmed Zaoui’s lawyer Deborah Manning had to fight to get any access to SIS files relating to his case. The new legislation makes that fight a virtually impossible one. A summary of the allegations can be granted, “except to the extent that providing such a summary would itself prejudice the [security] interests referred to in section 5 (3)”, creating a circular situation where the Bill allows disclosure except where it deems disclosure to be unwise.

Special Advocates

An alternative to the disclosure of the secret evidence to the appellant is the appointment of a “special advocate”, who is able to see “but must keep the information confidential and not disclose it”. (Clause 235) The advocate loses unlimited access to the appellant as soon as s/he sights the secret information. From that moment on “the special advocate can communicate with the appellant, or the appellant’s representative only by written communication through the Tribunal or court (as appropriate). The Tribunal or court must either forward the communication to the appellant, with or without amendment, or decline to do so and notify the special advocate accordingly.” (Clause 23 8)

The effect of this provision is that communication between lawyer and client is censored so that the applicant for refugee status can be denied details of what the accusations against them are. The appellant is expected to defend any charges without knowing what the charges actually relate to.

Torture victims need not apply

Furthermore, the bar has been raised for what defines a refugee (or a “protected person” under UN human rights and anti-torture conventions. Clause 122 declares that “it is an additional requirement for recognition as a protected person that … torture, arbitrary deprivation of life, or cruel treatment would be faced by the person in every part of his or her country of nationality or earlier habitual residence, and is not faced generally by other persons in or from that country (or those countries).” What this means is that if torture is generalised throughout the country of origin, no one from that country will qualify. If there are areas beyond government control, where state torturers are unable to act, there is no chance of getting protected status.

Grounds for appeal have been massively curtailed. the Refugee Status Appeals Authority (RSAA), so vital in the Zaoui case, will cease to exist, replaced by an Immigration and Protection Tribunal, comprised of as few as one member. The Tribunal must, among other things, determine the credibility of any “secret evidence”. The High court is instructed that “it is not the role of the nominated judge to determine” such matters as the credibility of evidence. Should the matter proceed to the High Court, the nominated judge is informed that “the classified information must be treated as accurate” (Clause 289). Where the RSAA had the power to make independent binding rulings on refugee status, under the new legislation grants the Immigration Service the incontestable ability to overrule the Tribunal’s decisions.

Dawn raids

In a throwback to the 1970s, when the Kirk Labour government introduced the dawn raids on Pacific Islanders’ homes in search of overstayers, the Clark government proposes a massive extension of state power to raid homes under the new Immigration legislation. Immigration officials will have the right to enter work places and private homes without the need for a warrant. The implications of the extension of warrantless raids on homes and work places are serious. We should reject such draconian powers, which have traditionally been overwhelmingly used to target the poorest sectors of society, as was seen in the raids of the 1970s.

One provision in the new act is that anyone intending to “provide commercial sexual services” is prohibited from entering the country and that provision of such services is in breach of temporary entry class visa regulations. Operating or investing in such a business is also prohibited. While many might approve of a bid to prevent a “flood” of Asian women moving to New Zealand to work in the sex industry, or the establishment of foreign-owned and controlled brothels, it is worth noting that prostitution is no longer illegal in New Zealand. The legislation does not prevent New Zealand Citizens, regardless of their origin, from establishing such enterprises. Given the legalisation of prostitution, a better approach would have been to control the earning of profits from the sexual services of others. The more likely outcome of such provisions is that the law will be able to be used as another means to attack the poorest people in the country.

Even existing citizens are not exempt from the reach of the Bill. Photographs can be mandated under the new immigration rules for any person entering the country, including returning citizens. While these photographs are purportedly to verify the identification of the person attempting to enter the country, the pictures permitted to be taken will not be limited to facial photographs. How photographs of other parts of the body will help match the individual to their passport, where the only photograph is a portrait, is unexplained. There are no controls written into the Bill to limit the accessibility of this information.

The almost inevitable result of this sort of legislation will be racist campaigns against already vulnerable immigrants and the deepening of anti-immigrant feeling through their further visible criminalisation.

Immigration controls are part of the arsenal of weapons the state is willing to use against the working class, both at the international level, controlling the number of people allowed into New Zealand and locally, deporting them when they are “no longer required”. The working class could potentially be further divided and weakened as immigrant workers come under attack.

Alternatively, the working class could find strength from unity with immigrant workers in the face of attacks on migrant workers. Greater state control over the movement of workers is not in the interests of the working class because the state does not operate in the interests of the working class. Labour’s new law is an attack on the working class, and should be opposed.

Originally published in The Spark.