Security detention warrants: 28-day periods and conditional release

Policy effect

From November 29, 2010, section 318 of the Immigration Act 2009 provided for warrants of up to 28 days for people arrested and detained on suspicion of a threat or risk to security, or whose deportation was ordered under section 163. A judge had to order immediate release if satisfied on the balance of probabilities that the detainee was not the person named in the warrant application; otherwise the judge had to issue a warrant or, if satisfied that release would not be contrary to the public interest, order conditional release. The corresponding former section 79 regime for suspected terrorists and persons under security or terrorism deportation orders also allowed public-interest conditional release, but its warrants ran until specified delivery or release events rather than an express 28-day period. Under section 322, suspected-security cases detained under a warrant or released on conditions ceased to be liable to arrest and detention if the Minister declined certification or failed to certify within 14 days of initial arrest. Conditions could include restrictions on specified communications or associations under section 321. The post-six-month test in section 323 excluded persons with section 163 deportation orders. Legacy security-risk-certificate cases remained subject to section 438’s special transition: the former Part 4A continued for those certificates, with specified deportation execution and detention provisions applying under the new Act. Conditional release and security detention were not first created in 2010.

Conditions and exceptions

Validated condition or limit: From November 29, 2010, section 318 of the Immigration Act 2009 provided for warrants of up to 28 days for people arrested and detained on suspicion of a threat or risk to security, or whose deportation was ordered under section 163.; The corresponding former section 79 regime for suspected terrorists and persons under security or terrorism deportation orders also allowed public-interest conditional release, but its warrants ran until specified delivery or release events rather than an express 28-day period.; Under section 322, suspected-security cases detained under a warrant or released on conditions ceased to be liable to arrest and detention if the Minister declined certification or failed to certify within 14 days of initial arrest.; Legacy security-risk-certificate cases remained subject to section 438’s special transition: the former Part 4A continued for those certificates,…

Official source excerpt

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

318 Decision on application for warrant if threat or risk to security (1) This section applies where an immigration officer applies for a warrant of commitment to authorise the detention of a person— (a) who was arrested and detained under section 313 on the suspicion of an immigration officer or a constable that the person constitutes a threat or risk to security; or (b) whose deportation has been ordered under section 163 . (2) A District Court Judge 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. (3) Except where subsection (2) applies, the Judge must— (a) 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; or (b) if satisfied that the release of the person would not be contrary to the public interest, order that the person be released on conditions under section 320 pending the person’s deportation from New Zealand. 79 Powers of District Court Judge in relation to persons in custody (1) Every person who is taken into custody under section 75 or section 78 of this Act shall be brought before a District Court Judge as soon as possible (and in no case later than 48 hours after the person was taken into custody). (2) Where any person is brought before a District Court Judge under subsection (1) of this section, the following provisions shall apply: (a) the Judge shall, if satisfied on the balance of probabilities that the person is not the person named in the deportation order, order that the person be released from custody forthwith: (b) except in a case to which paragraph (a) of this subsection applies, the Judge shall— (i) issue a warrant of commitment in the prescribed form for the detention of the person; or (ii) if satisfied that the release of the person would not be contrary to the public interest, order that the person be released on conditions in accordance with subsection (4) of this section, pending the person's deportation from New Zealand or an order of the High Court under section 84 of this Act. (3) Every warrant of commitment issued under this section shall authorise the person to whom it is addressed to detain the person named in it until— (a) required by a member of the Police to deliver up that person in accordance with section 85 of this Act; or (b) ordered by a District Court Judge under subsection (9)(a) of this section to release that person; or (c) ordered by the High Court or a Judge of the High Court to release that person. (4) Any order for the release of any person under subsection (2)(b) of this section shall be conditional upon the person residing at a specified address and reporting to a Police station, at intervals of not more than 7 days, on such days and at such times and in such manner as the Judge may specify, and may be subject to such other conditions as … may think fit to impose. (5) Any condition imposed under subsection (4) of this section may be varied at any time by a District Court Judge on the application of a member of the Police or the person released, after hearing both parties or having allowed such opportunity for both parties to be heard as seems reasonable in all the circumstances, and any such condition shall take effect as so varied. (6) Any conditions imposed on a person under subsection (4) of this section, and any variation of such conditions under subsection (5) of this section, shall be notified in writing to the person on that person's release or, as the case may require, as soon as possible after the variation is made, and the written notice shall— (a) specify the address at which the person is to reside; and (b) set out any reporting or other conditions imposed; and (c) include a warning that, if the person fails to reside at the specified address or breaches any reporting or other condition, the person is liable to be arrested without warrant and placed in custody. (7) A breach of any condition imposed under subsection (4) of this section, or varied under subsection (5) of this section, shall nullify the order for release, and thereafter the person is liable to be arrested by any member of the Police without warrant and placed in custody. (8) Every person who is arrested under subsection (7) of this section shall be brought before a District Court Judge as soon as possible (and in no case later than 48 hours after the person was arrested), and the Judge shall, if satisfied of the breach, issue a warrant of commitment in the prescribed form for the detention of that person in custody pending that person's deportation from New Zealand. (9) Where, in respect of any person arrested under section 75 of this Act and subsequently detained pursuant to a warrant of commitment or released on conditions under this section, the Minister decides not to make a deportation order, or fails to make a deportation order within 14 days after the day of the arrest, an immigration officer shall forthwith inform the Registrar of a District Court, and the following provisions shall apply: (a) if the person is in custody, a District Court Judge (or, where no Judge is available, the Registrar) shall order that person's release from custody forthwith: (b) if the person was released on conditions, the Judge (or Registrar) shall order that the person shall cease to be bound by those conditions, and the Registrar shall forthwith notify the person accordingly. (10) Any conditions imposed on any person in accordance with this section shall lapse, and the person shall cease to be bound by them, when the person leaves New Zealand. 322 Persons detained under warrant of commitment or released on conditions pending making of deportation order (1) This section applies in the case of a person who was arrested and detained on the suspicion of an immigration officer or a constable that the person constitutes …

Review method

Source-based draft with independent Gemini 3.8 Flash verification

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• 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
• 2010-11-29Ordinary detention warrants: up to 28 days with identity-related release restrictions
• 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