Gordon Campbell on John Key, personality politics and the Immigration Bill
Some of the more excited posts on my last column queried whether I lacked the fortitude to accuse John Key of corruption
over his use of Parliamentary questions on Tranzrail. Actually, I thought I’d said plainly that there was no evidence
that Key had asked those questions for direct personal gain – which is what makes his case different from the Neil
Hamilton ‘cash for questions’ affair in Britain.
A brief history of the British Parliament’s handling of the questions issue can be found here.
The essence goes like this :
Conventionally, MPs were expected to refrain from voting on matters in which they had personal interests, but this was
interpreted narrowly; in a decision of the speaker in 1811 it was limited to a direct, pecuniary interest. Then in 1845,
a resolution was passed deeming it to be improper for a member to `promote or advocate' any cause in Parliament in which
he had a pecuniary interest. In other words, not only was it forbidden to accept money as a direct payment for promoting
a particular interest, it was improper to promote a cause or organisation with which one had any financial connection at
all.
In Key’s case, the timeline is as follows. Key had sold his 30,000 Tranzrail shares in June 2003, a week before he began
asking Parliamentary questions about Tranzrail. However in October 2002 and April 2003, he had asked such questions in
Parliament while still owning the shares and had not made those interests public. As No Right Turn points out, Key
himself had acknowledged the validity of the public concern, and told the House so in October 2003 :
It might be a bit uncomfortable, but if I am a shareholder of Tranz Rail and I want to get up in this House and start
talking about that company, then my shareholding is relevant.
That being the case, it would have been more than nice if he had said so at the time, when the conflict was still alive.
As I said in the original post, it is largely an issue of perception. It is hardly a good look for parliamentarians to
be using the proceedings of Parliament to extract information that happens to be of direct or indirect financial
interest to them – at the very least, the public should be told by the MP concerned that this conflict of interest
exists. In 2002 and early 2003, Key failed to do so.
Ironic though to find the centre right – both in Parliament and in the blogosphere - crying foul about Key’s persona
being questioned. As Brent Edwards pointed out today on Morning Report, the centre right has been more than happy to
carry speculations and attacks about Helen Clark’s sexuality and her lack of children – and National MPs saw fit to use
the Paintergate and Drivergate scandals to attack the Labour leader’s personal integrity, for months on end.
Frankly, these kind of attacks – call it the dark side of personality politics – are probably inevitable, and in terms
of rough justice, they can even be desirable. The party leader’s personality is an increasingly powerful asset, one
buffed to a fine sheen by public relations minders. That process should not a one way street. Routinely, we get only the
nice, baby kissing side of the leader’s profile, in artfully arranged photo ops. If people are being sold a package,
they have the right to examine the goods very closely, and to kick them around before buying. All we can ask is that all
players in the game get the same sort of appraisal, and that the children are spared.
Immigration Bill, Part II
The Ahmed Zaoui case – a big part of the Govt's attempt to tighten Immigration law
*****
The report back on the Immigration Bill has been delayed from June 30 until July 21, but the extra breathing space seems
unlikely to resolve the flaws in this legislation – which violates just about every human rights principle the Labour
government supposedly stands for.
Politically, the Bill will also be re-entering the political frame just as Helen Clark needs to start rallying her core
support for the election campaign. Frankly, it is hard to imagine a set of measures more likely to induce Labour-leaning
voters to give up the ghost. This legislation seeks to enshrine in law some of the worst national security features of
the Ahmed Zaoui case – and confers sweeping new powers of search, entry and detention on the officials of a
scandal–ridden Immigration Service.
Even if one leaves aside the moral/human rights objections, and looks only at who stands to benefit most from this Bill,
the answer is probably…New Zealand First. The Bill will provide a perfect election year launch pad for Winston Peters to
vent his party’s anti-migrant spleen, and thereby make inroads into the conservative wing of the Labour vote. A few
weeks ago, Scoop analysed the national security and biometric aspects of the Bill. In this second part today, I’m
looking at a few of the search, detention, and deportation aspects.
Before doing so, centre left governments around the world seem to be just as prone to over -compensating on national
security and defence issues. Only last week, Barack Obama triggered the first major policy conflict within his own ranks, and it was over a national security issue. To the consternation of many of his supporters, Obama
has thrown his weight behind key parts of George W. Bush’s surveillance programme, including the granting of legal
immunity to telecommunication companies that abetted the Bush administration’s covert wiretapping of ordinary US
citizens. Significantly, it has been the increasingly conservative US Supreme Court – and not the Democrats in Congress
– that has repeatedly thwarted the White House attempts to try Guantanamo detainees in front of kangaroo courts run by
the US military.
In Britain, it has been much the same story. During the Blair/Brown era, successive centre left administrations have
been zealous – before and since the London bombings - about extending the state’s powers of surveillance, detention and
deportation. Time and again, they have been knocked back by rulings from the conservative British law lords, who have
become Britain’s last line of defence for traditional civil liberties.
Still, it has been surprising to find the same pattern recurring in this country. New Zealand did not, after all, join
the coalition of the willing and thus has far less domestic need for the kind of anti-terrorism measures enacted by the
countries that invaded Iraq. Yet just as in Britain and the US, it has been our higher courts ( and not politicians)
that have tried to strike a proper balance between national security and individual rights, as outlined in the various
High Court, Court of Appeal and Supreme Court rulings on the Zaoui case.
The upshot is that Labour and National politicians are in virtual unison on national security and immigration issues,
thanks to the authoritarian tendencies common to both major parties. In recognition of the fact that the major parties
are unlikely to amend the Immigration Bill significantly, the New Zealand Law Society and other submitters have tried to
promote a referee – in the shape of an Immigration Commissioner - as an intervention body of last resort for people who
may been the victims of errors of judgment or procedural mistakes by immigration officials under the proposed law.
While this safeguard is better than nothing, it would probably function serve more as a figleaf for a bad law than as a
genuine solution for the injustices it would be expected to resolve. Leaving aside the resources for such an office - on
what grounds could the Immigration Commissioner intervene and reverse the decisions made by officials, upon whom the new
law has deliberately conferred such sweeping powers ? The answer surely, is not to confer such unfettred power in the
first place.
Lets look at some of those powers. My outline of the national security and biometric information parts of the Bill can be found here.
Later, after the Bill is reported back on July 21, it will be useful to have a look at any improvements the select
committee and departmental officials have tried to make. To day, I just want to cite some concerns about the enhanced
powers of search, detention and deportation that the Bill gives to immigration officials.
Powers
Clauses 250-252 of the Bill confer on Immigration Service officiazls officials the kind of powers that we normally
concede – for good reason – only to police officers. All the NZIS officer will need is the belief that ‘reasonable
grounds’ exist, and he can proceed to apprehend any person who is, or appears likely to be, in New Zealand unlawfully.
Nor are those powers restricted to land. An official can - without a warrant - enter and search any craft within New
Zealand territorial waters, interview anyone, and identify anyone seated with them. Similarly the official can, without
a warrant, enter and search any part of the foreshore, port, bay, harbour, lake, or river - or any port premises, wharfs
or transit buildings, piers or structures attached to or extending from a shore or a bank.
Under clause 253, any immigration officer can enter any building or premises without a warrant – at any ‘reasonable’
time of day or night, unspecified – if they believe someone they may be wishing to serve with a deportation notice may
be present. Once a potential deportee is located, the officer is them empowered to photograph, measure, and take finger,
palm and foot prints of that person, and subject them to iris scans on suspicion that such a person could be liable for
deportation, or is (255c) ‘undertaking work or a course of study’ that the person may not be entitled to.
In essence, immigration officers are being provided with a toolkit of powers that could be used for either genuine
detection - or for the equivalent of dawn raids, with virtual impunity. The fact that reasonable belief – rather than a
warrant – allows such intrusions leaves the door wide open to abuse. Throughout the Bill immigration officers are
granted power to make sweeping unilateral judgments ( eg see clause 133) about the validity and the completeness of the
information before them, and the bona fides of the individuals concerned – and can then proceed to cancel refugee and
protection status, with far-reaching impact on migrants and their families.
The net cast by such search and entry provisions is wide. It can apply to those providing work, or accommodation, for
suspects. Under clause 241 (3 people are required to provide information about someone who is, or may become liable for
deportation, and information on their present or past whereabouts – and also about the occupiers past and present of
premises where they may have worked or resided. Under the same clause, any employer or employee may be required to
provide, or allow the official to copy “ any record or information held by or reasonably available to that person,” and
no one can be held legally liable ( clause 241 (4) in civil or criminal proceedings for what happens as the result of
the use or disclosure of such confidential information.
Once issued by an immigration officer with a relevant certificate, the list of organizations that must provide address
information to the NZIS include : the Ministry of Social Development, Housing New Zealand, education providers,
telecommunication service providers, internet service providers, postal providers, insurance companies, banks, local
government bodies, real estate agents, employers and former employers.
Clause 270 of the Bill empowers the chief executive of the Immigration Service to disclose categories of personal
information by agreement with any overseas agency, body or person engaged in border security, or in processing
international passengers, or in detecting or investigating immigration ‘or other’ offences.
That ‘ or other offences’ phrase makes this a potentially wide provision, well beyond immigration purposes. Under it, a
variety of agencies can enter into an agreement with NZIS to receive such information as - the Bill stipulates - airline
passenger and crew lists, the past travel movements of specified people and any previous convictions they may have.
Under clause 270(e) this agency or person agency can also acquire “the general history of specified people, which may
include associates and networks.” Also to be made available to foreign agencies : information about the ‘modus operandi’
of specified people, their currency transactions, intelligence assessments and reports, details of mail interceptions,
personal identification details, and details of known or suspected involvement of people in illicit activities.
Got that? On request, personal details that go beyond the suspected individual and based on grounds nothing stronger
than suspicion about them – can be provided to a range of security and law enforcement agencies overseas, and to those
involved with the processing of international passengers. Note that the CEO of the NZIS can supply ‘ intelligence
assessments and reports’ on request to any of those overseas agencies - even though the classified reports would be
denied on grounds of national security to the person in New Zealand most affected by them !
Detention
Overall, the Immigration Bill extends the period that migrants can be held in detention by Police without charge or
warrant, from the current 72 hours to 96 hours. Routinely, this will mean being held in police cells, even though the UN
and NGO agencies have been pointing out to the NZ government for the best part of a decade the need for non-penal
facilities for the assessing of migrants and asylum seekers. Several clauses do allow the NZIS to designate other
premises as detention centres, but prisons are the only ones identified.
Immigration officers themselves will be able to detain people for up to four hours without a warrant. Clause 272 (e)
allows detention for up to 96 hours of anyone suspected by an immigration officer or by a member of police of possibly
constituting a threat or a risk to security.
At the very least, these clauses extend the power of the New Zealand police to hold people in detention without charge,
pending checks on whether the suspects are liable, or not, for deportation. While 72 hours was previously possible, the
general norm already seems to be shorter, and this calls into question the need for any extension to the 96 hours
envisaged - for administrative convenience – under the Bill. Why is this necessary ? It does not seem to be required,
with respect to criminal offences. In its November 2007 comparative study of detention practices ( called Charge or
Release ) the British human rights organization Liberty concluded :
In New Zealand, persons arrested must be charged “promptly”. There is no
fixed definition of “prompt” but case law on this question indicates that pre-
charge detention of more than 48 hours would not be considered “prompt”.
Deportation
In a welcome move, the Immigration Bill does enshrine various UN conventions – including the Convention Against Torture
- in our domestic law. However, in my earlier post, I outlined how the Immigration Bill violates key provisions of that
same UN Convention Against Torture – by, for instance requiring ( see clause 122b ) an asylum seeker to prove they would
face a worse risk of torture if returned home, than would be usual in their country.
As written, clause 122 would allow New Zealand to return victims of mass torture and persecution, back into the hands of
their torturers. Clause 132 allows for people to have their status as refugees or protected persons revoked, if the NZIS
judges, in its wisdom, that circumstances have changed in their country enough to allow their safe return – or even, if
a new NZIS officer happens to re-think an earlier decision made by a previous officer.
The even murkier aspect is whether New Zealand can arrange to return asylum seekers to a so called ‘ safe’ third country
– or on the basis of diplomatic assurances or promises that the person will not be tortured, or returned to where they
would be tortured or persecution. The real trouble with ‘ diplomatic assurances’ is that they are quite unenforceable -
in a notorious case, Sweden returned two Egyptian asylum seekers back to Egypt, and the Swedes found out too late that
Egypt’s diplomatic promise not to torture the duo was not worth the paper it was written on.
Commonly, these diplomatic assurances entail the recipient countries ( Libya, Algeria et al) promising, with hand on
heart, that they recognize the Convention Against Torture – even as Amnesty International and Human Rights Watch report
on the extent of torture by security services.
On this point, clause 125 is the relevant part of the Immigration Bill. It creates an initial gateway decision by the
immigration officer to consider a claim for refugee or protection status, based on whether the immigration officer feels
that the applicant could find refuge in some other country. Moreover, clause 125 (2) (b) allows for the decision frame
to include whether “relevant international agreements or agreement have, or could be lodged” for protection in another
country. To my knowledge, New Zealand currently has no such agreements that would allow it to shuttle its asylum seekers
elsewhere – so, this can only be an example of future proofing, a provision to allow the NZIS to pursue such agreements
in future.
At it stands, the vagueness of clause 125 heightens the risk of return to torture, in violation of New Zealand’s
commitments under the UN Refugee Convention. At the very least, the issue of alternative countries of refuge and
associated risks should be treated as part of the claim, and not entrusted to some desk officer as a reason to reject
the claim at the outset. In addition, New Zealand should not be entertaining the prospect of diplomatic assurances and
the bogus rationale they provide for offloading asylum seekers into situations of peril. The reality facing New Zealand
is that fewer and fewer asylum seekers are getting here to claim protection - and the best international practice is
headed towards the scrapping of diplomatic assurances, not the embracing of them.
In February 2008 for instance the European Court of Human Rights ( in a major case called Saadi vs Italy) stopped the
deportation from Italy of one Nissam Saadi, back to his homeland in Tunisia. The deportation was refused, despite the
fact that Italy had sought and got assurances from the Tunisian government that it did not practice torture, and
voluntarily accepted all of the relevant UN conventions. The sceptical Court found instead that :
“The existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in
principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in
the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are
manifestly contrary to the principles of the Convention.
Diplomatic assurances, the Court went on, did not remove the obligation to examine whether such assurances in practice
provided a sufficient guarantee that the applicant would be protected against the risk of the cruel and degrading
treatments prohibited by the Convention. “The weight to be given to assurances from the receiving State depends, in each
case, on the circumstances obtaining at the material time.”
Exactly. Yet judging by New Zealand’s readiness to take at face value the European convictions against Ahmed Zaoui -
convictions later found, when tested, to be quite irrelevant to his alleged risk to our national security – it is hard
to see the NZIS vigorously adopting a stance of healthy scepticism towards the convenient agreements envisaged under
clause 125. It would be far safer if clause 125(2) (b) in particular was dropped from the Bill entirely.
That’s probably enough for now. One should also mention in passing though the very short timeframes that migrants have
for gathering and filing the complex factual and humanitarian grounds for appeal against deportation. Or the unilateral
ability of the Minister in clause 152 to deport people by Order in Council…and so on., and so on. .
On July 21, we will all get a clear idea of just how diligently the officials who advised the select committee have
responded to the criticisms of the Bill voiced by the Privacy Commissioner, UNHCR, the Law Society, the Zaoui legal team
and the dozens of other people and organisations that made submissions. It seems unlikely the Bill will be substantially
revised – and if it isn’t, it deserves to become an albatross around the neck of the Labour government.
ENDS