Sovereignty Under Challenge — the New Protection Regime in the Immigration Bill 2007

Rodger Haines QC

As a matter of well-established international law and subject to their treaty obligations, states have the right to control the entry, residence and expulsion of aliens. The stated purpose of the Immigration Bill 2007 is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals. To achieve this purpose, it seeks simultaneously to strengthen border control while recognizing and ensuring compliance with specified immigration-related international obligations, particularly those obligations under the Refugee Convention, the Convention against Torture, and the International Covenant on Civil and Political Rights. In this regard, the immigration appeal system is radically overhauled so that it will provide a “one stop” forum but with an expanded jurisdiction. A new Immigration and Protection Tribunal will be created, absorbing the jurisdiction of the present Refugee Status Appeals Authority, Removal Review Authority, Residence Review Board, and Deportation Review Tribunal. It will also have jurisdiction over the new forms of claims permitted under Art 3 of the Convention against Torture and Arts 6 and 7 of the International Covenant on Civil and Political Rights. But the Immigration and Protection Tribunal and the new complementary protection regime are not a radical departure from the past. They are but a continuation of the process whereby immigration-related international human rights obligations have been incrementally incorporated into New Zealand domestic law. After a brief sketch of the progressive implementation of these obligations into New Zealand’s immigration law, a broad overview of some of the more important provisions of the Bill is provided and a number of features highlighted. The first is the tension between a narrowly circumscribed Refugee Convention with its specific refugee rights regime on the one hand, and the apparently unqualified scope of application of the complementary protection regime, which carries no specific rights, on the other. Other features include: the prescription of criteria by which claims can be denied on the basis that the individual could have sought protection elsewhere; the statutory requirement to apply the internal protection alternative; and the exclusion of claims based on the absence of medical treatment facilities in the country of origin.

The Adoption of the Special Advocate Procedure in New Zealand’s Immigration Bill

John Ip

This article is about the development of the special advocate procedure. A special advocate is a lawyer appointed to represent the interests of a person in proceedings where the state relies on sensitive material that cannot be disclosed to that person or his or her lawyer. The article traces the origins of the special advocate procedure internationally, and its introduction into New Zealand in the Immigration Bill. It also examines the effectiveness of the special advocate procedure in mitigating the unfairness inherent in the use of secret evidence. Finally, the article considers the resourcing of special advocates and the potential use of the procedure in other areas.

Status Anxiety: The New Zealand Immigration Bill and the Rights of Non-Convention Refugees

Jane McAdam

The Immigration Bill’s codification of New Zealand’s international obligations to protect people substantially at risk of arbitrary depri-vation of life, torture, or cruel, inhuman or degrading treatment or punishment is a positive development. It brings the country into line with international law and State practice in the European Union, Canada, the United States, and, shortly, Australia. However, while the Bill extends protection to a wider class of people, it is notably silent on the immigration status they will receive once their protection needs have been recognized. This article draws on comparative practices to argue that a status for protected persons that is equivalent to that of Convention refugees sits more comfortably with international human rights law norms, is procedurally more efficient, and provides a principled and more humane policy response to people who have experienced serious harm and are looking to rebuild their lives in a safe environment.

Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law

Michelle Foster

It is now well established that international human rights treaties impose obligations on states to protect persons from refoulement beyond the terms of the Refugee Convention. However, there remains much disagreement concerning the scope of protection to be provided. One of the most contentious issues is whether protection is restricted only to persons who fear torture and/or a violation of the right to life (narrowly understood), or whether it can also include persons whose claims rely on a deprivation of socio-economic rights on return to their country of origin — that is, whether return to deprivation in the form of famine, or lack of medical treatment, or education, can invoke a state’s international protection obligations. The notion that the obligation to protect from refoulement may include socio-economic rights violations has been thought to present such a threat to state sovereignty that the right to seek such protection, at least in the context of medical treatment, has been explicitly excluded from some existing and proposed domestic schemes, most recently in the proposed system of complementary protection to be introduced in New Zealand. This article uses the exclusion on socio-economic grounds proposed in the Immigation Bill 2007 as a method of testing the scope of complementary protection at international law. Drawing extensively on international, regional, and domestic jurisprudence, this article argues that socio-economic rights are clearly implicated and must therefore be considered by states in expulsion decisions, and that, accordingly, blanket exclusions are inconsistent with international law. The article concludes by calling for reasoned and principled judicial and legislative decision-making in this area in preference to the unsustainable policy concerns that are at risk of dominating discourse in this field.

Employment Law

Paul Roth

Local Government and Resource Management

Kenneth Palmer