Immigration proposals threaten balance between border security and international obligations

Proposed amendments to the Immigration Act including mandatory detention for groups of asylum seekers arriving by sea upsets the careful balance between the need for border security and New Zealand’s international treaty obligations.

Race Relations Commissioner Joris de Bres says, “As a New Zealander I find it hard to contemplate a situation in which we would accept the mandatory detention of whole groups of people in an army camp or elsewhere without any consideration of their individual circumstances.”

Mr de Bres was speaking before the Transport and Industrial Affairs Select Committee considering the Immigration Amendment Bill today.

The proposed legislation and the associated policy changes it enables are in breach of New Zealand’s obligations under the 1951 Refugee Convention, international human rights instruments to which New Zealand is a party, and the New Zealand Bill of Rights Act 1990.

Mr de Bres says it was important to correct the mistaken impression that the bill would address asylum seekers who were “queue jumping” to the potential detriment of the 750 refugees accepted via the UN High Commission for Refugees each year.

“These people have a legitimate and lawful right, long recognised by international law, to seek asylum, to have their claim considered expeditiously, and for due process to be followed.  Applying for protection onshore is not a means of “jumping any queue” and is the correct and legitimate means of seeking recognition as a refugee under the Refugee Convention,” he said.

The Commission is particularly concerned about four main aspects of the Bill.

  • the Bill and associated policy changes unduly penalise asylum seekers for irregular entry to New Zealand in clear breach of Article 31 of the Refugee Convention.
  • the detention provisions in the Bill will result in arbitrary detention in breach of both New Zealand’s obligations under the International Covenant on Civil and Political Rights and section 22 of the New Zealand Bill of Rights Act.
  • the blanket suspension of applications from nationals of specific countries without providing them protection is discriminatory and violates the right to seek asylum as guaranteed by international law.
  • restrictions  on the right of judicial review proposed by the Bill goes against the basic and longstanding constitutional right to challenge the legal validity of government actions as protected by section 27(2) of the New Zealand Bill of Rights Act.

The Commission believes the detention provisions are not only unlawful but unnecessary. Detention and other penalties have not worked as a deterrent to boats arriving in Australia and have resulted in significant health and social consequences.

Overwhelmingly evidence shows that placing asylum-seekers in the community is less costly both financially and in human terms, and that the risk of asylum seekers absconding are low. Treating people with dignity and respect, including due regard to human rights standards throughout the asylum process contributes to constructive engagement in that process, including improved voluntary return outcomes.

Mr de Bres outlined alternatives to detention which have proved successful in other jurisdictions – from reporting requirements to structured community release programmes. In a welcome development Australia has recently started significant steps to reduce immigration detention and develop community based alternatives.

Mr de Bres understood the Select Committee would be hearing from experts from the UN High Commissioner for Refugees and the International Detention Coalition. He urged the Select Committee to listen to such advice and amend the proposals.

Click to: Submission on Immigration Amendment Bill

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