Ordinary detention warrants: up to 28 days with identity-related release restrictions

Policy effect

From November 29, 2010, section 317 of the Immigration Act 2009 allowed a District Court Judge to issue a warrant of commitment for up to 28 days, or order conditional release if detention was not warranted. In the preceding removal-order route, sections 59 and 60 of the Immigration Act 1987 provided an ordinary warrant of seven days or less after arrest to execute a served removal order; specified extensions for cases involving late refugee claims or the person’s conduct preventing departure could already last up to 30 days. The new framework covered persons liable for deportation or turnaround and certain identity-related cases; it was not confined to the old served-removal-order cohort. Recognised refugees and protected persons were generally exempt from arrest and detention, subject to the statutory deportation exceptions. Under section 317, the court had to establish that the detainee was the person named in the application and consider the statutory departure-impediment or identity grounds, or the public interest. Unless exceptional circumstances existed, conditional release was barred where identity was unknown or unestablished; where the person’s conduct after a deportation liability notice or arrest for deportation or turnaround prevented departure; or where a refugee or protection claim was made only after a deportation liability notice or order, or such arrest. The change concerns the ordinary section 317 warrant and its release conditions, not a universal 28-day limit on total detention or the separate security and prolonged-detention tests.

Conditions and exceptions

Validated condition or limit: From November 29, 2010, section 317 of the Immigration Act 2009 allowed a District Court Judge to issue a warrant of commitment for up to 28 days, or order conditional release if detention was not warranted.; In the preceding removal-order route, sections 59 and 60 of the Immigration Act 1987 provided an ordinary warrant of seven days or less after arrest to execute a served removal order; specified extensions for cases involving late refugee claims or the person’s conduct preventing departure could already last up to 30 days.; Recognised refugees and protected persons were generally exempt from arrest and detention, subject to the statutory deportation exceptions.; Unless exceptional circumstances existed, conditional release was barred where identity was unknown or unestablished; where the person’s conduct after a deportation liability notice or arrest for deportation or turnaround…

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

317 Decision on application for warrant of commitment (1) On an application for a warrant of commitment, a District Court Judge— (a) must, if satisfied on the balance of probabilities that the person is not the person named in the application for the warrant of commitment, order that the person be released from custody immediately: (b) may, in any other case, either— (i) issue a warrant of commitment in the prescribed form authorising the person’s detention, in a place named in the warrant, for a period of up to 28 days, if satisfied of the matters in subsections (2) and (3) (and having taken into account the matters in subsections (4) and (5)); or (ii) order the person’s release from custody on conditions under section 320 , if the Judge is not satisfied that detention is warranted. (2) A Judge may issue a warrant of commitment if satisfied on the balance of probabilities that the person in custody is the person named in the application and that any 1 or more of the following applies: (a) a craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand: (b) the reasons why a craft was not available to take the person from New Zealand are continuing and are likely to continue, but not for an unreasonable period: (c) the other reasons the person was not able to leave New Zealand are still in existence and are likely to remain in existence, but not for an unreasonable period: (d) the person has not supplied satisfactory evidence of his or her identity. (3) If subsection (2) does not apply, the Judge may, nevertheless, make a warrant of commitment if it is, in all the circumstances, in the public interest to do so. (4) In determining whether to issue a warrant of commitment, or whether to order the person’s release on conditions, the Judge must have regard to, among other things, the need to seek an outcome that maximises compliance with this Act. (5) Unless there are exceptional circumstances, the Judge must not release the person on conditions if— (a) the identity of the person is unknown; or (b) the person’s identity has not been established to the satisfaction of the court; or (c) a direct or indirect reason for the person being unable to leave New Zealand is, or was, some action or inaction by the person occurring after the person was— (i) served with a deportation liability notice; or (ii) arrested and detained for the purpose of deportation or turnaround; or (d) the person claimed refugee or protection status only after the person was— (i) served with a deportation liability notice or deportation order; or (ii) arrested and detained for the purposes of deportation or turnaround. Compare: 1987 No 74 s 60 … Skip to main content Kāinga Home Tirohia i ngā tari kāwanatanga Browse agencies Ako atu anō Learn more Advanced search Any legislation In force Bills Not in force Title contains Content contains Secondary legislation In force Latest version as at 28 June 2010 (as made) | SR … | Administered by Ministry of Business, Innovation, and Employment Immigration Act 2009 Commencement Order 2010 Amendment secondary legislation Versions (1) Empowering Acts (1) Section view Download Search content Secondary legislation In force Latest version as at 28 June 2010 (as made) | SR 2010/185 | Administered by Ministry of Business, Innovation, and Employment Immigration Act 2009 Commencement Order 2010 Hide navigation Contents 1 Title 2 Commencement of certain provisions of Immigration Act 2009 Explanatory note Administrative information 2010/185 Immigration Act 2009 Commencement Order 2010 Rt Hon Dame Sian Elias, Administrator of the Government Order in Council At Wellington this 28th day of June 2010 Present: Her Excellency the Administrator of the Government in Council Pursuant to section 2 of the Immigration Act 2009, Her Excellency the Administrator of the Government, acting on the advice and with the consent of the Executive Council, makes the following order. Show contents Contents Order 1 Title This order is the Immigration Act 2009 Commencement Order 2010. 2 Commencement of certain provisions of Immigration Act 2009 (1) Section 477 of the Immigration Act 2009 comes into force on 2 August 2010. (2) The remaining sections of the Immigration Act 2009 that are not in force immediately before 2 am on 29 November 2010, except the following sections, come into force at 2 am on 29 November 2010: (a) section 30: (b) section 31: (c) section 60: (d) section 100: (e) section 104: (f) section 111: (g) section 120: (h) section 149(1)(e): (i) section 278: (j) sections 283 to 291: (k) section 312: (l) section 400(l). Rebecca Kitteridge, Clerk of the Executive Council. Explanatory note This note is not part of the order, but is intended to indicate its general effect. This order brings into force most of the provisions of the Immigration Act 2009. Section 477 comes into force on 2 August 2010. This section amends the Immigration Act 1987 by inserting a new section 141ABA into the Act. New section 141ABA authorises the Department of Labour to disclose certain information to an employer to enable the employer to verify that a person is entitled under that Act to undertake employment in the employer's service. The remaining sections of the Immigration Act 2009 (except the sections listed in the order and the 4 sections already in force) come into force at 2 am on 29 November 2010. The 2 am commencement time on 29 November is to minimise the risk of operational problems at the New Zealand borders as the new immigration processes under the Act come into effect (and those of the Immigration Act 1987 no longer have effect). The 4 provisions of the Immigration Act 2009 that are already in force are sections 474, 475, 476, and 478 (see section 2(4) and (5) of the Immigration Act 2009). The provisions of the Immigration Act 2009 listed in the order that are not brought into force by the order relate to the collection and use of biometric information u …

Review method

Source-based draft with independent Gemini 3.8 Flash verification

Other New Zealand changes operative in 2010

• 2010-03-29Introduction of the Temporary Retirement Category
• 2010-03-29Silver Fern Job Search and Practical Experience policy instructions
• 2010-08-02Employer work-entitlement verification: statutory information disclosure
• 2010-10-01China Working Holiday Scheme: qualification verification and English evidence tightened
• 2010-11-29Detention beyond six months: conditional renewal and release test
• 2010-11-29Employer work-entitlement checks: tax-declaration excuse replaced by due diligence
• 2010-11-29Security detention warrants: 28-day periods and conditional release
• 2010-11-29Visa framework replaces permits while retaining separate entry permission
• 2010-11-29Visa sponsorship: third-party cost recovery with protection for existing undertakings
• 2010-12-20Commencement of refugee/protection biometric collection and general biometric provisions