CONFIDENTIAL
046711
MDHOAN 2
YEAR. WE WONDER WHY NO REFERENCE IS MADE TO THESE VERY RECENT AMENDMENTS ESPECIALLY AS ONE OF THE OBJECTIVES WAS TO MAKE THESE PROVISIONS LESS INCOMPATIBLE WITH THE BOR.
5.
ON PARAGRAPH 7 OF THE DRAFT BILL, WE AGREE THAT AS THEY STAND THE PRESUMPTIONS ARE INCOMPATIBLE WITH ARTICLE 11(1) OF THE BOR AND THAT THE AMENDMENTS ARE AN IMPROVEMENT. BUT THE EFFECT OF SECTION 17N AS AMENDED, COMBINED WITH SECTION 171(4)
AS AMENDED IS STILL THAT BOTH PRESUMPTIONS COULD BE APPLIED CUMULATIVELY IN RELATION TO THE SAME OFFENCE IE: WHERE A PERSON IS CHARGED WITH EMPLOYING AN ILLEGAL IMMIGRANT, IT COULD BE PRESUMED BOTH THAT THE PERSON FOUND AT HIS PLACE OF EMPLOYMENT WAS HIS EMPLOYEE, AND THAT THAT PERSON WAS NOT LAWFULLY EMPLOYABLE. THE PRESUMPTION IN SECTION 17N SEEMS HARDER TO JUSTIFY, PARTICULARLY AS IT DOES NOT EVEN REQUIRE THE PERSON CONCERNED TO HAVE BEEN FOUND WORKING ON THE DEFENDANT'S PREMISES, BUT MERELY TO HAVE BEEN THERE. PERHAPS A FUTHER AMENDMENT SHOULD BE CONSIDERED TO RESTRICT THE PRESUMPTION TO CASES WHERE THE ALLEGED ILLEGAL IMMIGRANT IS FOUND ACTUALLY WORKING.
6
PARAGRAPH 8 (E) OF THE DRAFT MEMORANDUM: WE AGREE THAT DETENTION OF DEPORTEES FOR ENQUIRIES TO BE MADE INTO THE ACTIVITIES OF OTHER PERSONS IS ''ARBITRARY!! AND THEREFORE CONTRARY TO ARTICLE 5(1) OF THE BOR, AND SHOULD BE DELETED. HOWEVER THE POWER RETAINED IS STILL VERY WIDE. IT PERMITS INDEFINITE EXECUTIVE DETENTION IN THAT THE SECRETARY FOR SECURITY MAY ISSUE WARRANTS (PLURAL) FOR PERIODS (PLURAL) OF SEVEN DAYS AT A TIME. THERE IS NO TIME LIMIT, AND NO PROVISION FOR APPEALS OF ANY KIND. THIS WOULD APPEAR TO BE INCONSISTENT BOTH WITH ARTICLE 5(1) AND WITH 5(4) OF THE BOR, WHICH ENTITLES DETAINEES TO TAKE PROCEEDINGS BEFORE A COURT TO CHALLENGE THE LAWFULLNESS OF THEIR DETENTION.
HURD
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