8 Immigration Amendment Bill 1998 Special Procedures In Cases

8 immigration amendment bill 1998: special procedures in cases involving security concerns _______________________________

8
Immigration Amendment Bill 1998: Special procedures in cases involving
security concerns
_______________________________
Report by the Privacy Commissioner to the Social Services Select
Committee in relation to Part 3 of the Immigration Amendment Bill
_____________________________
17 November 1998

Part 3 of the Immigration Amendment Bill 1998
Introduction
1. Clause 34 of the Immigration Amendment Bill will insert a new Part
IVA into the Immigration Act 1987 to establish special procedures in
cases involving serious security concerns. The explanatory notes
states that:
“The immigration decision making process and fairness generally
requires that the individual concerned has access to any information
held about them. This requirement sometimes stops the New Zealand
Security Intelligence Service from providing classified security
information on an immigration application or decision even though that
information may have a direct bearing on the matter. The bill
therefore establishes a special security process to allow for such
classified security information to be considered in immigration
decisions without putting the classified nature of that information at
risk, while ensuring that the rights of the individual are protected
through a process of independent scrutiny.”
2. The nature of the information involved is such that, if it can be
demonstrated to apply to an individual, “firm and conclusive action
will be taken against the individual”. The bill brings into sharp
relief a classic information privacy dilemma: the conflict between an
individual’s desire to know the information held about him or her
which will be used to base a decision affecting his or her interests
and the State’s desire to use such information against the individual
while keeping it secret from him or her. The stakes are high since the
individual’s liberty is directly at issue. National security may also
be at stake.
3. In terms of the information aspects of the proposal might be
described as follows:
*
a new class of information is defined to be known as “classified
security information” - proposed section 114B;
*
classified security information will be provided by the New
Zealand Security Intelligence Service (NZSIS) and used in making
certain decisions having important consequences for the individual
(freezing legal proceedings, taking into custody etc) - proposed
sections 114C-114P;
*
classified security information will be withheld from the
individual notwithstanding its use in taking decisions in relation
to that individual - for example proposed sections 114A, 114B,
114H.
4. Undoubtedly the proposal would be of concern to any Privacy
Commissioner. Placing an individual in custody in reliance upon
certain information, using that same information in an expedited
process to take significant and adverse decisions affecting that
individual, while at the same time withholding that information from
the individual and thereby denying him or her the opportunity to
challenge or explain it, is fundamentally at variance with normal fair
information practices.
Balancing interests
5. Nonetheless, fair information practices are not absolute standards
that cannot be varied. Our information privacy principles, with their
various exceptions and their subordination to other specific statutes,
certainly create no absolute standards. One must have regard to
competing interests.1
6. I expressed concern on the Intelligence and Security Agencies Bill
that a wider mandate was being given to intelligence agencies in areas
where normal policing, with attendant accountabilities and openness,
might suffice.2 This initiative seems to confirm the trend. There is a
danger in elevating security interests over cherished and long
established rights. I understand the desire that relevant information
in the possession of the NZSIS be brought to bear to protect the
state’s interests. I see nothing inherently wrong in establishing by
statute an ability for the NZSIS to present information to the
immigration authorities. However, I believe that the starting point
ought to be that NZSIS accept the usual consequence of doing so which
is that the information may be the subject of challenge through normal
adjudicative, typically adversarial, processes. To use a class of
secret information for taking persons into custody, freezing legal
proceedings and then expelling them from the country is alien to our
legal traditions.
7. Although the bill obviously has information privacy implications -
and indeed mentions the Privacy Act in section 114H(2)(b) - I was not
consulted on the proposal in advance of the bill’s introduction into
Parliament. I have not, for example, been briefed by the Department of
Labour as to the perceived risk, shortcomings in existing law or how
the new law is intended to operate. I can therefore only urge caution
in respect of so dramatic a proposal affecting individual liberties.
It falls to the select committee, as always, to be fully satisfied as
to the need for this new law.
8. Questions that the Committee might wish to satisfy itself about
could include the following:
*
What precisely is the problem to which the initiative is
addressed? When vague claims of “risks to national security” are
indicated, one is left to assume the most serious cases of public
emergency. Is this the case or will the law also encompass lower
level problems?
*
Does persuasive evidence establish the existence of such risks?
While it is appropriate to anticipate some risks and not await the
harm to be suffered, I suggest a cautious approach when making
serious inroads into existing rights.
*
If a risk does exist how serious is it? What might be the
consequence of leaving the risk unaddressed?
*
Why is existing law unable to address the problem? For example,
why is the existing Part III of the Immigration Act, which
concerns deportation of persons threatening national security and
suspected terrorists, inadequate?
*
If the Committee is satisfied of the existence of the risk, and
believes that existing law is inadequate, are there alternatives
to the proposal which might effect less dramatic inroads into
personal liberties? Is the proposal proportionate to the accepted
problem?
9. I am not in a position to answer these questions. If a significant
risk exists, and there is no satisfactory alternative, then it follows
that this proposal may well be justified. If the Committee reaches
that conclusion then I think there are many features in the proposed
new Part IVA which go some way to safeguarding individual liberties.
The overall balance is, I believe, still of significant concern but it
is at least reassuring that there is some oversight of the processes
through the involvement of the Minister and the Inspector-General of
Intelligence and Security.
10. Unfortunately other priorities have prevented my office from
studying the bill in the detail that would have been desirable. The
bill, which is on a fast track through Parliament, was introduced in
late-August at a time when my staff were fully deployed elsewhere. My
invitation to address the Committee has been arranged at short notice
as the Committee finalises its deliberations. However, three issues
have occurred to me:
*
Have the rights of access to personal information been narrowed
further than they need be?
*
Should an individual have a remedy if the Inspector-General
decides that the security risks certificate was not properly made?
*
Ought there be some public reporting in respect of the use of the
extraordinary powers?
Access rights
11. Section 114H sets out the rights of a person in respect of whom a
security risk certificate is given and relied upon. These include
allowing a person who seeks a review under section 114I to:
“Have access, to the extent provided by the Privacy Act 1993, to any
written information about the person other than the classified
security information.”3
12. This right of access may be rather illusory. First, Part IV of the
Privacy Act provides certain reasons for refusing access to
information which may, in these circumstances, enable much or all of
the information before the Inspector-General to be withheld.4 I am not
in a position to know since I have not been briefed on the type of
information which will be utilised in this procedure. However, the
NZSIS, in most cases where personal access requests are made to it,
refuses to give access to information and indeed normally refuses to
confirm or deny that any information is even held (an option under
section 32 of the Privacy Act which will obviously not be possible in
these circumstances).
13. Second, proposed section 114H(2)(b) refers to “written
information”. I question why the provision is so limited. Certainly
the Privacy Act’s rights of access are not limited to written
information. It would be disturbing to think that what little rights
of access exist might be circumvented by the NZSIS providing a
supplementary oral briefing to the Inspector-General knowing that such
information will not be accessed under section 114H.5
14. The other limitation arises through the definition of “classified
security information”. I understand why the matter has been approached
in this way but I ought mention that there has been a long-standing
mistrust of the establishment of “class” withholding grounds since the
work of the Danks Committee which underpinned the Official Information
Act 1982. The preference in New Zealand information access laws has
been to draft withholding grounds which describe a particular public
interest needing to be protected and allowing that to be applied on a
case by case basis without defining any class of documents or
information “off limits”. Although the definition of “classified
security information” appears to follow that tradition I expect that
all information provided to the NZSIS by overseas governments will
effectively be off limits because disclosure of any such information
will be said to carry the likely consequences mentioned in paragraph
(b).
15. The position of information received from overseas governments is
problematic for information access laws such as the Privacy Act and
Official Information Act. However, since both of those statutes also
contain within them that problem there may be little to be gained by
attempting to find a solution in this bill. Nonetheless, I am
concerned about the fairly sweeping protection of information supplied
by New Zealand departments or agencies to the NZSIS. Public sector
agencies have, for many years now, operated in an environment where
they have been subject to information access laws, and latterly all
agencies have been subject to the information privacy principles. New
Zealand government departments cannot, for example, take the benefit
of the “international entrusting of information” reason for
withholding in section 27(1)(b) of the Privacy Act or section 6(b) of
the Official Information Act. It would be desirable to modify the
definition of classified security information with respect to
information sourced within New Zealand to make it more strictly
limited. I suggest that paragraph (a)(iv) of the definition should
simply be omitted.
Remedies?
16. Section 114I will enable an individual, by that stage in custody,
to apply to the Inspector-General of Intelligence and Security for a
review of a security risk certificate. Section 114J provides what
happens as a result of that review. If the security risk certificate
was properly made, the consequences are as set out in section 114K. If
the Inspector-General decides that the certificate was not properly
made there are two consequences spelt out in section 114J(2) namely:
*
the person must be released from custody immediately; and
*
normal immigration or refugee processes must resume.
The Inspector-General may also, under section 114J(5), make a
recommendation in relation to payment of costs or expenses of the
person who has sought the review.
17. It seems to me that there ought to be some further consequence
flowing from a finding that a security risk certificate was not
properly made. At the very least, it seems desirable that the bill
require the individual’s costs or expenses to be met. If a mechanism
for quantifying those does not exist in immigration law then perhaps
the Inspector-General could quantify those. I suggest that the
provision should go further and empower the Inspector-General to
recommend compensation in appropriate cases.
Public reporting
18. When extraordinary powers are utilised, for the most part in
secret, there should be some public accounting after the fact. By
analogy, I refer to the powers in the Crimes Act for interception of
private communications. In that Act, there is a requirement to report
back to the court after the interception has been completed and to
include in the annual report of the New Zealand Police the number of
times that interception warrants were obtained. I suggest something
similar would be appropriate in this case. It will give some
reassurance to the public if reporting shows that such powers are
exercised sparingly. It would give rise to further public debate if,
some years down the track, it appears that routine use were to be made
of these powers in immigration cases.
Recommendations
19. Accordingly, I recommend:
a.
That the Committee satisfy itself as to the existence of a serious
risk and that it also consider any available alternatives which do
not trespass so significantly on personal liberties.
b.
Paragraph (a)(iii) of the definition of “classified security
information” in section 114B should be omitted.
c.
The word “written” should be deleted from section 114H(2)(b).
d.
The exercise of powers under these new provisions should be
reported, annually, after the fact, in the appropriate annual
reports.
e.
Section 114J(5) should provide that:
i.
where the Inspector-General decides that the certificate was not
properly made, the person’s costs or expenses in seeking the
review should be met; and
ii.
the Inspector-General should be entitled to recommend
compensation if appropriate.
B H Slane
Privacy Commissioner
17 November 1998
rep98/immamnd
1 See also Privacy Act 1993, section 14.
2See Report by the Privacy Commissioner to the Minister of Justice on
the Intelligence and Security Agencies Bill, 26 February 1996.
3 Proposed section 114H(2)(b).
4 See especially Privacy Act, section 27(10)(a) and (b).
5 I note in passing that proposed section 114H(2)(b) may not be
effective as a prohibition on access any way since it purports to
guarantee rather than limit access rights. See Privacy Act section
7(1) and (2) and 30.