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Bali ProcessLegislative Workshop

Trans National Organised Crime Legislation

New Zealand Case Study

10 -11 November 2003Port Dickson, Malaysia

Arron BakerNew Zealand Immigration Service

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The New Zealand ExperienceImplementing Trans National Organised Crime Legislation

An Immigration Perspective

• Legislation – part of a wider strategy• Integrated international engagement • Border Strategy• Technology - APS• Mass Arrival Planning• Legislation to implement TNOC convention• New NZIS Fraud Unit • New Intelligence Unit• Prosecutions and Convictions• The Judiciary

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Summary of Legislation Changes

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NZ Legislative Changes• TNOC Bill passed in 2002

• Changes were made to the Immigration Act in June 2002 in the following areas:

Employment Offences / Penalties Arrival and detention Entry, search and surrender of documents Release on conditions Disclosure of information overseas

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Trafficking

• Crimes Act prohibits the trafficking in persons. The legal definition of trafficking in persons is:

• The arranging of entry of a person into New Zealand or any other state by one or more acts of coercion against the person, or one or more acts of deception of the person, or both, or;

• the arranging, organising or procuring the reception, concealment, or harbouring in New Zealand or any other state of a person, knowing that the persons entry into New Zealand or that state was arranged by one or more acts of coercion against the person, or one or more acts of deception of the person or both.

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Trafficking• ‘Act of coercion against the person’ includes:

– abducting the person;– using force in respect of the person;– harming the person;– threatening the person expressly by implication with the use of

force in respect of, or the harming of, the person or some other person.

• ‘Act of deception’ includes fraudulent action.

• ‘Harming a person’ means causing harm of any kind to the person and in particular includes:– causing physical, psychological or financial harm to the person;– sexually mistreating the person;– causing harm to the persons reputation, status or prospects.

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Confiscation

• General legislative provision for such action in the form of the Proceeds of Crime Act 1991.

• That Act provides that where a person is convicted on indictment of a ‘serious offence’ a court may order:

– the forfeiture of property that is ‘tainted property’ in respect of the offence;

– that a pecuniary penalty be paid by the person convicted in respect of the benefits derived by them from the commission of the offence.

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Mutual Legal Assistance• New Zealand has specific legislation for mutual legal

assistance in the form of the Mutual Assistance in Criminal Matters Act 1992.

• Under the Act New Zealand may request assistance of any foreign country. Such assistance may include assistance in:

– locating or identifying persons;– obtaining evidence;– arranging the attendance of persons in New Zealand;– serving documents;– obtaining articles or things;– arranging enforcement of various orders made under the

Proceeds of Crime Act;

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Co-operation

• The Immigration Act 1987 was amended in 2002 to contain specific provision for the sharing of a immigration type information with any overseas agency, body or person whose function include:

– the prevention , detection, investigation, prosecution or punishment of immigration or other offences;

– the processing of international passengers; or

– border security.

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Employer Provisions

• $50,000 fine for knowingly employing a person not entitled to work

• $10,000 fine for employing without ‘reasonable excuse

• Not knowing is not a reasonable excuse

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Exploitation of Employees

• Up to $100,000 fine and/or 7 years imprisonment

• Enhanced ability to deport employers committing offences

• Creates an offence for the exploitation of persons not legally entitled to work

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• Examples include:

– Retaining possession of documents

– Preventing or hindering access to leave premises

– Preventing or hindering use of telephone

– Preventing access by a Labour inspector

Exploitation of Employees

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Offences/Penalties

• Can apply to criminal activity outside NZ (enforceable in NZ)

• Creates new offence for knowingly assisting any person remaining in NZ illegally for material benefit

• New offence for any person altering an immigration form after it has been signed

• Makes some offences summary/indictable with no time limits

• Up to $100,000 fine and/or 7 years imprisonment

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Powers of Entry & Search

• Coverage of Act expanded to NZ’s contiguous zone

• Strengthened provisions to require information from persons suspected of being in NZ unlawfully (surrender of documents).

• Police can arrest and detain if refusal to supply that information

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Information Exchange

• Enabling provisions introduced to provide for sharing of intelligence and information

• Information may be disclosed to an overseas or international agency whose functions include law enforcement, international passenger processing, or border security

• Objective of law change is to help prevent, identify or respond to violations of New Zealand or overseas laws

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International Context

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GlobalEnvironment

IntelligenceCapability

Refugee Interventions

Policy Awareness

PeopleFlows

Border ControlAnd

Facilitation

International Engagement Themes

PacificSecurity

CommonImmigration

Standards

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International Engagement BORDER CONTROL AND FACILITATION

COMMON STANDARDS PACIFIC SECURITY INTELLIGENCE

Model Immigration Legislation (BALI, APEC, PIDC).

Professional Service & Integrity Standards (APEC, PIDC).

Airport Liaison Officers (APEC).

Regional Network of Repatriation Agreements (BALI).

APP Standards (APEC, 5 Nations, PIDC).

Data Exchange for Lost and Stolen Passports and Alerts (APEC, BALI, ICAO, Interpol, PIDC, FRSC).

Travel Document Security (APEC, ICAO).

Pacific Security Funding and Risk Framework (PSSF).

Regional Law Enforcement Training Initiative (PIDC, FRSC).

Co-Funding PIDC Secretariat Position and PIDC Travel (PIDC).

IOM Roles in the Region (PIDC, BALI).

Border Control Training Workshops (PIDC)

Documentation examination training.

Trans Organised Crime Model Legislation & Implementation (BALI).

Raising Awareness about People Smuggling (BALI).

Interpol Liaison (NZIS Intelligence Unit).

Intelligence Data Exchange on Illegal Migration & People Smuggling (PACRIM, PIDC).

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Operational Initiatives

• Bi-laterals for repatriation• Mass Arrivals Planning completed.• Participation in 17 international fora• Training Pacific Immigration staff.

• More investigators• More fraud prosecutions• Refugee cancellation Team• Targeting failed refugee

claimants for removal

• Establish Intelligence Group• Consolidate Intel systems• Harmonising identity systems

with NZ Internal Affairs• Data matching

• Offshore interdiction programme• Detention of high risk asylum

seekers• Advance Passenger Screening

for all flights

PREVENTION

COLLABORATIONSYSTEMS

COMPLIANCE

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Border Strategy

ArrivalEntry

Control

Biometric identificationTargeted interception

Inter-connected e-Border Systems

• Airlines• Airport Companies• Border Agencies

Passport

Biometric captureContact-less chip

Trusted Traveller

Registration

Visa

Advance information processingRisk profilingPre-processing of auto-referrals

Baggage Handling

Hold/stow baggage screeningAdvance bio security screeningTravel

BookingCheck-in

Self-service kiosksAdvance Passenger ScreeningPassenger information capture

Inter-government information &

intelligence sharing

Boarding

Biometric identification

Departure Control

Biometric identificationTargeted interception

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From concept to reality…

• TNOC / 9.11 / Increased smuggling, trafficking, spurious

refugee claims (85%)

• Government decision to implement APS (January 2002)

• Funding agreed (May 2002)

• Solution model defined (July 2002)

• Contract negotiated (February 2003)

• Pilot commenced with Air New Zealand (July 2003)

• Official launch August 2003

• Roll-out with other Airlines (from September 2003)

Advance Passenger Screening

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NZ Advanced Passenger Processing System

Airportcheck-inagent

New Zealand passports, visas,

alerts,Person location

NZ Customs

API

validation requests, biodata requests

boarding directives

Not yet implemented

Australian government approval is underway

Australian APP

Application Processor

Australian passports

& visas

expected movements

visas, alerts, person locations

boarding requests

Real time messages

NZIS APPApplication Processor

Airline Check In Counter

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Roll-out schedule

• Air New Zealand Trans Tasman Complete Sept 2003

• Freedom Air (except Coolangatta) Complete

Sept 2003

• Malaysian Airlines Complete Oct 03

• Royal Tongan Complete Oct 03

• Emirates Complete Oct

03

• Thai Airways Now Nov 03

• Remaining Air NZ inbound flights (Japan, Singapore, Noumea)

& outbound flights Dec 03

• Cathay Pacific & Singapore Airlines Early 2004

• Other Airlines Early 2004

• Transits & Crew Early 2004

Advance Passenger Screening

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Proposed between NZ and Australia

• Verification requests – passports and visas

• Document alerts (lost & stolen passports)

• People alerts (shared intelligence)

Future opportunities

• Global lost & stolen passports (APEC / ICAO / BALI initiatives)

• Bi-lateral / Multi-lateral intelligence agreements

• Verification against passport databases

Information SharingTNOC Enabled

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Planning For Mass Arrivals

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Experience & Application

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NZIS Fraud Unit

• New specialist team of investigators and lawyers

• Investigation of Immigration related offences

• Prosecution of offenders

• Gathering intelligence for the Intelligence Unit

• Liaising with other law enforcement agencies

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• 39 prosecutions taken between May 2002 to May 20003

• 43 prosecutions active as at May 2003

Prosecutions Taken

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Intelligence Unit

NZIS developing an enhanced intelligence capacity in 2003/2004

Aim - to provide an effective intelligence operating framework incorporating the direction, collection, analysis, dissemination and evaluation of information.

To make useful immigration intelligence accessible throughout the NZIS and to share with other agencies and internationally as appropriate.

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Prosecution Issues

• Interpreters – Availability (dialects) and security clearance

• Significant backlog of cases – compromises• Witness intimidation – One prosecution and evidence

it is widespread• Witness departure from New Zealand• Distinguishing between victims and participants• Jurisdictional issues – extraterritoriality where part of

an offence committed overseas• Multi agency investigations – developing new

sequence of procedures

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• Sirwar Rahimi - Kerr D.C.J.

• “In aggravation of the offence you lied to circumvent New Zealand’s humanitarian refugee policy with regard to staying in New Zealand because you did not otherwise qualify. Your conduct breached the security and integrity of New Zealand’s border control on migrants.”

• Sentence : 9 months imprisonment

Judicial Comments

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Judicial Comments

• Lida Rahimi - Lockhart D.C.J.

• “You told lies and made up stories so you could obtain Refugee Status. Any country has to be aware of people such as yourself. All you have done is make entry into the country far more difficult for people who, unlike you, may be genuine refugees.”

• Sentence : 9 months imprisonment

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• Mohammed Wasin - Mackintosh D.C.J.

• “I consider immigration status in this country to be a precious commodity. The integrity of the system depends on the truthfulness of applicants. To attempt to manipulate the system in the way that you have, is a very serious matter.”

• Sentence : 8 months imprisonment

Judicial Comments

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Refugee Claims

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50

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150

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350

400

450

1997

-07

1997

-10

1998

-01

1998

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1998

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1998

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1999

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1999

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1999

-07

1999

-10

2000

-01

2000

-04

2000

-07

2000

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2001

-01

2001

-04

2001

-07

2001

-10

2002

-01

2002

-04

2002

-07

2002

-10

2003

-01

2003

-04

2003

-07

2003

-10