Immigration Bill

Dr JACKIE BLUE (National) Link to this

I am very pleased to take part in the debate on Part 5. I was not a member of the Transport and Industrial Relations Committee in the last parliamentary term. I think this part might be a little bit contentious. But first of all I will give some background to Part 5 and talk about the types of refugees that New Zealand does accept.

The most common route is through the United Nations quota system. New Zealand accepts 750 refugees each year. These refugees are vetted by the United Nations High Commissioner for Refugees, and on their arrival they spend several weeks at Māngere, where they are orientated and have further checks. As refugees accepted through the quota system, those people are automatically given permanent residence.

As a signatory to the 1951 United Nations convention and the 1967 protocol on the status of refugees, New Zealand is obliged to consider all claims for refugee status or political asylum. The second group of refugees are asylum, or convention, refugees, who claim refugee status after they arrive in New Zealand, at the border or when their temporary permit expires. There are an estimated 300 asylum seekers per year, and of those who go through the review or appeal process, approximately 50 percent would be accepted. Many of these people arrive at our borders having destroyed all documentation, so proving who they are and the situation in the place where they have come from can be very difficult and time consuming. However, while they are making a claim for refugee status and are waiting to be verified, they are able to use the public health service, their children go to school, and they are entitled to benefits.

In New Zealand all claims are considered by the refugee status branch of the New Zealand Immigration Service. If a claim is unsuccessful, there is an appeal process. People can lodge an appeal against the New Zealand Immigration Service decision to the Refugee Status Appeals Authority, or RSAA, which is an independent body. In fact, there are four review bodies: the Refugee Status Appeals Authority, the Removal Review Authority, the Residence Review Board, and the Deportation Review Tribunal. It is important to note that all four appeal processes will be put into one body called the Immigration and Protection Tribunal, thus making it a much simpler process for all.

While refugees wait to be verified, they can generally get a work permit while their claim is being determined. Asylum, or convention, refugees might be in New Zealand for 2 or 3 years before their status can be determined, so it is quite a long process for many of them. Of course, they have to prove that if they go back to their country of origin, they could be persecuted, tortured, or under imminent threat of death.

The third route is the family unification category, which I will not go into.

It is important to note that Part 5 does not affect our refugee quota programme at all—it is not about changing that—and that the bill upholds our international refugee and protection obligations. But a new framework is being created for refugee and protection decisions. It incorporates all the conventions and protocols that we subscribe to. In relation to the changes in this part that could be contentious, it is important to note that often over the last few years we have had examples where asylum seekers have come to New Zealand, are going through very much a good-faith process with the Immigration Service to prove their claims, but start using the media to put out information, whether or not it is correct. In that way it becomes a bad-faith process. They are able to say that because they are in the media now, they cannot go back to their country of origin as the authorities there know that they are here and they will be persecuted if they go back. That approach is not acting in good faith. To give the Immigration Service some balance, the bill now provides for an implied waiver of confidentiality in refugee and protection decisions where a refugee, protected person, or a claimant puts information about his or her case in the public realm. It provides the Crown’s perspective on an individual’s case. If individuals choose to go to the media, the Crown should have the right of reply in that instance. None of this will be done lightly. It is important to stress that the process is a good-faith process, and if individuals choose not to follow that good-faith process, they will suffer the consequences.

Another change, on Supplementary Order Paper 32, provides that refugee and protection decisions can be released where it is in the public interest and it is safe to do so. Again, this has not been done lightly at all. It would be a last resort.

Hon PETE HODGSON (Labour—Dunedin North) Link to this

Time is almost up, so I do not think I will begin a speech. I might just tell a story. We are talking about refugees, so I will tell a story about a couple of guys from West Africa. They got into trouble with their President, because the President, in their view, had overturned a mayoral election in a major city, so they started a general strike. The local cops and the special cops came after them. They fled to a neighbouring country. They got on board a ship to go to Europe, or so they hoped, and one of them was imprisoned and tortured in the meantime and escaped through a roof. But the ship never went to Europe. It went via the Philippines and Australia to Port Chalmers in Dunedin, where they passed a note out through their little prison within the ship to a watersider, who gave it to the Otago Daily Times. It was reported in the newspaper, and then my phone started ringing. After a couple of days I got them off the ship, which is just as well because it was due to go on to Korea, Alaska, and who knows where after that. They had been on this thing for about 3 or 4 months.

They stayed at home with us for 4 years, so we got a bit of an insight into what being a refugee looks like. They waited 22 months for their first interview under the New Zealand system. That is just a matter of fact. They were accorded refugee status and, if you like, I will tell members the rest of the story after dinner.

KEITH LOCKE (Green) Link to this

There have been some improvements made to Part 5, through the good work of the Transport and Industrial Relations Committee. Some of the concerns raised by groups like Amnesty International were addressed. One of the things that was rather disconcerting was the wording of clause 122B, which will now be omitted, and which said that persons could claim protective status only if they could show they faced the risk of harm “in every part of his or her country” and that the harm “is not faced generally by other persons in or from that country.” Of course, one of the things about persecution is that it is often quite targeted. If people live in Iran, they are subject to some general persecution, but if they are a Baha’i or a Christian convert from Islam they face specific persecution. The idea that some parts of the country are safe and some parts are not is a difficult one to apply. It is good that that provision was taken out of the bill by the select committee.

The provision that is related to that clause is now in new clause 120, which states that the application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to such claimants requires “the existence in the country concerned of a consistent pattern of gross, flagrant, or mass violation of human rights.” That just makes clear what is at issue here, in terms of determining refugee status, and the persecution that results from that status.

Another improvement is made in clause 125, which states that if we send the person to another country where the refugee convention, the convention against torture, and the International Covenant on Civil and Political Rights apply, there must be “appropriate processes”. The words “appropriate processes” were added so that countries cannot just sign up to these agreements; they have to actually put them into effect. There must be appropriate processes. So that is an improvement.

In clause 127 there is an improvement in that a decision would be invalid if we sent a claimant to another country where they might be safe, for example to Fiji, Malaysia, or wherever, which was thought about for some asylum-seekers, but that particular country then sent the person back to the country of persecution, and we in New Zealand had some knowledge that that might take place. Clause 127 requires the refugee tribunal to really have a look at that.

There is also an improvement in clause 133, which relates to the cancellation of a person’s recognition as a refugee or protected person. It is true that a lot of refugees embellish their stories, and that there is a bit of falsehood in them, and sometimes other members of the community slander them in one way or another, so it is often a very murky business trying to establish exactly to what degree refugee claimants have lied. They may have gained refugee status, and it is a big step to cancel their refugee status. This provision means that it is not just up to someone in the refugee status branch of Immigration New Zealand; the tribunal actually has a role in the cancellation of someone’s refugee status. That is a step forward. Those are some improvements, and I appreciate that the committee has done good work along those lines. Thank you.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

When I became the Minister of Immigration under the previous Labour Government there were 3,000 people waiting for their first-level determination for refugee status. That was because the refugee status provisions of the legislation of the time were being abused. They were being abused by people who came here from, significantly, Thailand, probably more than anywhere else, and who used the fact that there would be a lengthy delay for the consideration of their first-level claim—essentially for up to 3 years—to get a work permit to live and work in New Zealand for 3 years before they would be sent home for having no claim for refugee status.

The issue is that that abuse did not mean every single person from Thailand who lodged a claim did not have a claim for refugee status. But 99.99 percent of those people did, and the question is how we change a system to ensure that the one person in a million is able to have his or her case determined appropriately. That is what Part 5 does, and that is why I am very supportive of the provisions in this part. It ensures that we have an opportunity to hear cases that are genuine claims for refugee status, and, at the same time, to move on those people who are seeking to abuse provisions that are designed to offer protection for people who come to New Zealand.

I should say, before I move on from talking about what I inherited, that when I stopped being the Minister of Immigration there were about 300 people waiting to have their claims heard. So we managed to make quite a significant difference in that period of time.

I know that my colleague who has just resumed his seat has made the comment before that we should not be happy with the very low number of people who claim asylum when they come to New Zealand now, but I am actually very happy about that because the rate of approval of refugee status on a percentage basis has gone up. That is because the vast majority of people who now claim are genuine claimants, rather than those who sought to abuse the provisions of the law in the past.

There has been a really good change in what we do when determining refugee status for those who do not come here under the United Nations High Commissioner for Refugees quota programme. But I am concerned about the changes that the Supplementary Order Paper makes, and we have discussed this with officials. I understood that the Minister was going to provide us with some background on how the United Nations High Commissioner for Refugees had responded to these particular provisions. My understanding of our conversation was that there would be feedback to members of the Opposition about what the United Nations High Commissioner for Refugees had said about these particular provisions. We had quite a lengthy discussion about it. I am looking around for my colleague the immigration spokesperson, but that is my very clear recollection of the discussion that we had—or maybe it was with the officials rather than with the Minister.

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

I rise to take a call on Part 5, “Refugee and protection status determinations”. In doing so, I want to make two statements of the obvious, to start with. The first is that there has been a strong tradition of bipartisan support for refugee policy in New Zealand, and largely for protection policy. Refugees are amongst the most vulnerable in our society. Many of them come here having endured things that most of us could not imagine, and their challenge of adapting to a new society is made all the more difficult because of the scars that they bear from their former experience.

Refugee policy is too easy, as my colleague the Hon Lianne Dalziel has said, to play politics with, because the level of resources that is invested in the settlement of refugees is sometimes considerable. For that reason I am pleased that, across the major parties, we have maintained a steady quota of refugees and a good bipartisan approach to this policy; long may it continue.

The second statement of the obvious is that much of Part 5 is very, very positive. It represents the bipartisan contributions, as I said in the Part 2 debate, of several Ministers and Governments—that the history of this Act reflects the need to strengthen border protection and then to balance those protections with improved human rights protections. I will give a couple of examples, but I do want to state at the outset that the Opposition is opposing the Supplementary Order Paper provisions for Part 5, and I will outline why.

Several of the things that we think are very positive in terms of this part reflect the travel of this bill through, first, the executive, and then the select committee. The bill extends protections to include the Convention Against Torture—the so-called CAT—and the International Covenant on Civil and Political Rights. This is something that both Governments have strongly supported, and I welcome that. The select committee has further amended the wording of the bill so that as reported back the wording of the claims under the Convention Against Torture are more accurately representative of the convention, and that is to be welcomed. The requirement has been removed that a protection claimant must show that torture, arbitrary deprivation of life, or cruel treatment is not faced generally by other persons in the claimant’s home country, in order to be granted protection status. The burden of proof was always very high in that regard, and, on balance, it is a good thing that that has been removed.

Also in Part 5 there are changes to the roles of determination officers. A determination officer may not, in the bill as introduced, consider a subsequent refugee or protection claim unless satisfied that there has been a significant change in circumstances or that the change was not brought about by the claimant for the purpose of creating grounds for recognition. That has been amended by the select committee. A refugee and protection officer may not consider a subsequent refugee claim unless satisfied that those conditions apply, but it now does not apply to a protection claim. That amendment liberalises the legislation somewhat and is to be welcomed.

Now we get to the slightly difficult bits. First, the bill as reported back from the select committee recommends that refugee and protection officers make first instance decisions on refugee and protection claims, using classified information. That seems to me to be at odds with the structure of the more general provisions of the bill for the use of classified information, which hold that where they are used without corroborating open source evidence a special process must be set up and special protections applied, including an advocate, and so forth. In the bill as introduced the protection existed that the use of classified information under this part had to be done by a tribunal. I fail to see the rationale why that has now been generalised to allow any front-line refugee and protection officer to gain access to and use classified information, apparently without open source corroboration, in the absence of those special procedures. I welcome the Minister’s clarification on that point.

Now we come to Supplementary Order Paper 32 on Part 5. Taken as a group, four important amendments are proposed in the Supplementary Order Paper, which Labour believes have been generated mainly as a response to certain individual cases. Cases like the Ali Panah case and perhaps the Thomas Yadegary case—both cases are of Iranian Christians—spring to mind. We are firmly of the view that hard cases make bad law. It is just too clumsy to write into the principal Act a specific set of prohibitions that would get around the particulars of one or two difficult cases. This has all the hallmarks of ensuring that no one gets it over the department again like those two did. That is not a first-principles argument, and I do not think it is worthy of the level of thought that has gone into other aspects of the bill.

Here are the substantive problems with it. Firstly, the Supplementary Order Paper states that an implied rather than a stated waiver of confidentiality in refugee and protection decisions exists where a refugee, protected person, or claimant puts information about his or her case in the public realm. There is not an express but an implied waiver. The difficulty with that is that there are many ways—Lord knows, politicians should be aware of this—in which things can reach the public realm, not always with a great deal of forethought, sometimes without knowledge, and certainly without malice. The problem with an implied waiver is that it is subjective. It is the officer of the department who is making a decision that something is implied, and it lacks the due protections that should exist.

If that clause did not raise enough risk on its own, when it is put together with the clauses that follow in the Supplementary Order Paper, refugee and protection decisions can be released. It is not OK for the claimant to put his or her information in any way in the public domain, by accident or design, without a waiver of his or her rights, but it is perfectly OK for the department to do it. What is fair about that? The bill lacks protections and it impinges on human rights.

The third clause states that where a foreign national creates the grounds for a refugee status claim in bad faith, his or her claim can be declined for consideration. Who decides whether something is in bad faith? And how is bad faith defined precisely in the Act? I know who is making the judgment; the refugee and protection officer is making the judgment. I know—and I think I acknowledged in the earlier part of the debate—that departments of State are not perfect. Most of our individuals get up every day and they go to work to do the best job they can, but they make mistakes. This is a subjective test. It is one thing to decline after consideration, but this provision declines for consideration. If the refugee and protection officer gets out of the wrong side of the bed in the morning and thinks someone has acted in bad faith because the officer does not like the cut of his or her jib, his or her case will not be heard. The case will be declined for consideration. Of course, he or she could appeal but that is a difficult process and there is only one shot at it. That makes the protections so much weaker.

The fourth clause states that it does not matter whether any number of people deemed to be the claimant’s friends or supporters stand up and say that the person is a wonderful person. Take the Yadegary case, which I was involved with as a member of Parliament before having to recuse from it as a Minister. There was no end of people—if I recall correctly—in the Catholic Church who said that the young man was a genuine convert, had been for years, and was active in the church long before his case was held. This amendment states that that material could not be considered. Well, how on earth is that fair when the original officer is making a subjective decision, when the claimant has no rights because anything he or she says implies a waiver of confidentiality, and when any supporter he or she may have cannot be taken in account because he or she is a priori excluded?

I understand why these provisions are here, but I think they go too far. They expose the department to risk, and they expose the Minister of Immigration to unnecessary risk. I ask that the Minister in the chair, Dr Jonathan Coleman, reconsider the amendments. Labour will not be supporting the amendments to this part. Thank you.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I will carry on from the argument my colleague David Cunliffe made, because he started off with the point that perhaps I had overlooked, which was that hard cases make bad law. We have a really high risk of doing that with the series of changes to the refugee and protection provisions of the Immigration Bill. I think the Minister wants to make the changes for appropriate reasons, so I am not having a go at the Minister for making these changes. But the changes will not act in the way he thinks they will, and they will not offer protection in the kinds of examples we have already had put before us. The reason for that is that there is a high risk that other people could be involved in putting things in the public arena. There is a high risk that others could suffer the consequences of information being disclosed in the public arena within New Zealand. Of course, any information that is publicised in New Zealand is automatically available internationally within seconds, as we know in a whole lot of different areas.

The Minister may have wanted to see changes in this area, and they may not look like they are much of a change. We need to put it on the record that the bill as it stands states: “Nothing in this section applies to prevent the disclosure of the fact that a person is a claimant, a refugee, or a protected person, or the disclosure of particulars in relation to a claimant, a refugee, or a protected person, to the extent that the person concerned has expressly waived his or her right to confidentiality under the section;”.

The Minister’s amendment to clause 140(5) in Supplementary Order Paper 32 has now been extended with “by his or her words or actions, impliedly waived his or her right to confidentiality under this section.” The amendment is not needed. If the implication is of sufficient weight, then it will fall within the express waiver of the right to confidentiality. Many court cases have upheld the right to do so. Adding “impliedly waived” gives incredible authority for the Minister of the day to just basically draw the line wherever he or she wants to draw the line. It is a very dangerous provision.

I do not think it would stand up in any international jurisdiction. That is why we have been waiting to hear what the United Nations High Commissioner for Refugees had to say about the provision. We find it hard to believe that the United Nations High Commissioner for Refugees would say that it is a good change for us to be making to our law. When we had our meeting with officials, we certainly made the point that we did not agree with the particular change to the law, but we did understand that we were going to get some feedback about what the United Nations High Commissioner for Refugees thought about this. We would really appreciate the Minister providing us with some explanation as to how the United Nations High Commissioner for Refugees has responded.

I think the implied waiver is an extremely risky track to go down. I am urging this Committee to think very carefully about supporting this amendment. This amendment has high risk for people whose very lives may be at risk. It is all very well to say that because somebody has dared to suggest to a journalist on the way to a hearing that he or she has a genuine case, that that suddenly gives the Minister the right to put everything in the public arena. One has to be extremely careful about that. There are so many instances that I can think of where it may be thought that there is an implied waiver, but, in fact, there is no waiver intended. Indeed, the involvement of third parties, as my colleague David Cunliffe has said, may lead to people inadvertently creating the implied waiver situation, because it may be regarded that in advising someone else of their circumstances, they have impliedly waived their right to confidentiality under the section.

That provision is in section 129 of the Immigration Act 1987, and as a former Minister of Immigration I was very, very mindful of my obligations to keep confidentiality. I think the Government needs to rethink this provision.

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

One of the saddest things about the Minister’s amendments is that they weigh against—and to some extent, they undo—so much of the good work that the select committee has done to ensure an appropriate balance is taken for human rights and civil liberties. Four amendments were mentioned by my colleague the Hon Lianne Dalziel, New Zealand’s finest Minister of Immigration—she has paid me again to say that; no she has not, that would be treating and would probably be against some law or other. There you go, that may be taken as an implied waiver of confidentiality!

If one were getting political about that issue, one, just for a moment, could observe that the current Government is getting a little bit of a name for waiving confidentiality. The Minister for Social Development—

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I am surprised that the Minister will not take a call, because we are raising—

Hon Dr JONATHAN COLEMAN (Minister of Immigration) Link to this

People sitting at home listening to this debate will probably wonder what it is all about. In essence, Part 5 means that refugees who are seeking refugee status must tell the truth and act in good faith, and then they will be fine. I think we all agree that New Zealand has a world-class refugee system. António Guterres, the United Nations High Commissioner for Refugees, was here a few months ago. He was certainly very fulsome in his praise of our system.

I think we agree on the parts of the bill that codify elements of procedure, and rights of refugees, under the Convention Against Torture and the International Covenant on Civil and Political Rights. But clearly, there are points of difference relating to these bad-faith provisions. We are essentially saying that if refugees lie about their background and why they are claiming refugee status, they probably will be exposed in the course of their dealings. Up till now, that provision has not been there.

Opposition speakers have said that hard cases make bad law. They say there have been only three of those cases. If we look back since 2002, there have been 20-something cases where elements of bad faith have been a factor in applications. When we are talking about confidentiality and the ability of the Attorney-General—not the Minister, I say to Mr Cunliffe—to put decisions into the public arena when he thinks it is in the public interest, there are very good reasons for that.

We had a case with a judgment in February of this year for an individual, who has been mentioned in this debate, who now has refugee status in New Zealand. He is living in New Zealand and probably will remain here for the rest of his life. When we read this judgment, which could not be released with the claimant’s full name, it tells us some very interesting facts about this individual. If we look at paragraph 100 of the judgment, the judge who wrote this said that this man deliberately misled all those who have taken up his cause in the belief that he has been sentenced to death. If we go over to paragraph 105 it says that he is a manipulative and opportunistic individual who is indifferent to his sworn obligation to tell the truth. Tell the truth! In paragraph 121 it says the untruths told by the appellant, the false documents he has produced, and his general lack of candour in dealing even with those who are his strongest supporters is evidence of the underlining utilitarian nature of his belief, in the absence of a true commitment to his new proclaimed faith. This is a gentleman who became a refugee in New Zealand because he claimed he had converted to Christianity, when, in actual fact, there was no way that he had and the judgment fully illustrates that fact.

So we are saying that people might be acting in bad faith, but if they convince people around them who are acting in good faith—maybe supporters from their church—to take up their case in public, the good-faith actions of those third parties will not be of any help to them. Mr Cunliffe was complaining that it was not appropriate that classified information should be available to refugee and protection officers in the first instance. I remind him that this was a change that Labour members proposed at the Transport and Industrial Relations Committee. So, perhaps he should have spoken to his own members in refuting that particular point.

The bottom line in Part 5 is that if refugees act in good faith and tell the truth throughout, they will be fine. If they manipulate their circumstances and lie to try to claim refugee status, that will not help them, and they will be exposed. Quite frankly, if one goes out there and talks to the public, this is the right side of the argument to be on.

Hon DAVID PARKER (Labour) Link to this

I have to respond to that contribution from the Minister of Immigration. I have been listening to the debate, and I have to say that I am not convinced. The State will always have the upper hand in refugee decisions. In the end, the decision is one that the State takes. If the State does not think that it can deal with the occasional bit of criticism, then it needs to grow up a bit and grow broader shoulders.

In the end, the State’s will will prevail, and the State will win if it is acting legally. If, in the meantime, the State suffers a bit of criticism through interest groups advocating on behalf of someone whom they feel sorry for, then that is the price of an open democracy. I cannot see why that is a terrible thing. Those who cannot stand criticism should not be involved in democracy. We all have to put up with criticism. At times that criticism feels unfair, but, in the end, we rely upon the media to get a bit of balance. In respect of the immigration cases that have been discussed, I think that the media largely does provide balance in those situations.

The idea that the Crown should have some superior right or a sword of Damocles hanging over the neck of anyone who is brave enough to criticise poor decisions or poor process is wrong. I do not think we should support that particular amendment to the bill that is proposed in Supplementary Order Paper 32. What is wrong with people criticising the Crown or arms of Government? There is nothing wrong with that; that is what we are talking about.

I do not think that the previous Labour Government was particularly damaged by some of the accusations that were made by people who were claiming refugee status, even when those claims were wrong. Lots of claims are made in society that prove to be wrong, but, none the less, people have the right to make those claims.

Let us say that in the future we have a Government that approaches these refugee decisions wrongly, it starts to move away from the cross-party position that we have had over many years in New Zealand, and for reasons of political gain it decides to act unjustly. I am not saying that the National Government would do that, but there is always a risk that a future Government would. How do people protect themselves against the inappropriate use of governmental powers? Effectively, Governments can stack refugee appeal panels with people who will find against refugees in a way that I would find abhorrent. In that situation, I think I would want the media to be able to get close to those refugee claimants and to expose the situation for what it is. I hope it will never come to that, but I certainly think that the fourth estate, in league with people who are involved in refugee claims, should have the right to make those accusations in the future if that circumstance arises.

I do not think that the proposed amendment set out on the Supplementary Order Paper should be countenanced. From a matter of principle, it should not be countenanced. Is it necessary? No. The prior law has not had that level of protection, and Governments did not fall because of it. When I was a member of the previous Government, at times the rule annoyed us, but in the end it did not bring down the Government. In the end there were plenty of countervailing forces in society that were willing to argue against the rights of refugees and to put the other side of the debate. I do not think any injustice was caused to the Government as a consequence of the prior rule.

I am completely unconvinced by the justifications the Minister in the chair gave, and I encourage members of the House to vote against this proposed amendment on the Supplementary Order Paper. Thank you.

KEITH LOCKE (Green) Link to this

I rise in support of my Labour colleagues in terms of the Minister’s amendment. I think it is very bad to have a subjective term such as “good faith” scattered throughout the Supplementary Order Paper. There are a couple of factors that I think we need to bear in mind, and they follow on from what David Parker said.

One thing to bear in mind is that when refugees make their applications, they are often desperate. They see it as a matter of life or death for them and their families—sometimes wrongly, but that is often the attitude. As anyone who has been involved in this field knows, they sometimes embellish their applications. Refugees in that situation could be seen as operating in bad faith, and they could easily be swept aside if this Supplementary Order Paper goes through in its present form. I think that refugee authorities generally take into account the fact that one does not hang everything on whether a person says something that is not entirely true.

The other factor is that there is, unfortunately—partly through the wrongful efforts, in my opinion, of a previous member of this House, Winston Peters, and his party—a widespread prejudice against refugees. I was brought up in the tradition that Jewish refugees from Nazi Germany, etc., are people who have suffered and need our support, comfort, and compassion. But there is, because of the efforts of certain politicians, a feeling that somehow refugees are spongers. There is not a full understanding of what refugees are and how we must support them.

The case the Minister just quoted is interesting. It is a case I know quite intimately. When that case was put on the Refugee Status Appeals Authority website in February, the lawyer for the person involved made it quite clear, and went to the media to clarify the situation. The lawyer made it clear that many people who knew that person—workmates, parishioners, priests, the lot, including myself; I did not make a submission but I can testify about this person—testified that the person was a genuine Christian convert. The people who convinced me the most were his workmates, because he had no reason to try to convert them to Christianity. He is one of the most religious people I have ever met, and he could quote the Bible backwards.

That report on the Refugee Status Appeals Authority website does not mention that every single person who knew him and testified for his conversion to Christianity said he was a dedicated Christian. Nobody made a statement to the contrary, but the Refugee Status Appeals Authority did not even mention that. In my opinion, an injustice was done in that case, although he now has refugee status for other reasons.

If we add an amendment like this, which adds a subjective element like good faith, where are we going with that? It could create terrible problems. Thank you.

Hon PETE HODGSON (Labour—Dunedin North) Link to this

Let me contribute to this debate by saying how easy it is for a refugee to be tricked into telling a mistruth. This is an honest, straight story from my own experience. It is those same two guys I mentioned in an earlier speech. When I got to the ship, the captain assured me they were Liberian. He had no written record and he had no reason to mislead me. He was a Chinese national who spoke perfect English, and he told me they were Liberian. They were not. The two guys in question had papers to say they were Rwandan. The papers came from a United Nations High Commissioner for Refugees office in Libreville, the capital of Gabon. They were not Rwandan.

The reason they carried papers to say they were Rwandan was that when they fled their country, Cameroon, and crossed the border to get away from the secret police, they spent 6 months in Gabon. The secret police came after the six of them. One of them disappeared, the other five fled, and two of those five ended up in Port Chalmers, Dunedin. Before they fled, they went to the United Nations High Commissioner for Refugees office in Libreville and were advised to be Rwandan because Rwanda was hot. Do members remember? So they got Rwandan papers with United Nations High Commissioner for Refugees certification that they were from Rwanda, their names, etc., and carried the papers with them to New Zealand and presented them to me. They then said through an interpreter “We are not Rwandan.” I was pretty confused. So back again through the interpreter, the cop I was telling members about, I came to a deal. I said I would back these guys if they did two things: never run away, and always tell the truth. That deal was struck on the night I got them off the ship, and they have never broken it.

The next morning the first question I asked them was their nationality. Through the interpreter again they said “Cameroonian”. I gave them the subscriber trunk dialling for Cameroon—0237. I told them if they had a phone number of anyone at home—these guys had been missing for 9 months altogether—they could ring someone and tell them they are still alive, and here are the digits they need to get into their country. They rang the number and I waited in the next room. Of course, all hell broke loose with the joy from one of those guy’s mothers.

That is how I learnt their nationality and that they had told the truth, even though they had papers telling me something else. That is how easy it is to make a mistake when someone is a refugee, and I say to the Minister that I think this is wrong law and we should abandon it.

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

Firstly, I acknowledge my colleague the Hon Pete Hodgson. For one thing, his was an amazing story that not only was he able to get those two Cameroonian gentlemen off that boat but also he took them in to his home for 4 years. I would like to publicly say that that tells us something about the man, as well as the former Minister.

I will divert slightly and recognise the immense courage of the refugee community. Many of us have been to a refugee and migrant day, for example at one of the Auckland festivals. I remember going to one early in my time as Minister of Immigration and coming away thinking that it was we who are privileged to have that body of people in our country, because most of them are amazing individuals with incredible qualifications. The fact that they have survived what they have been through to get here tells us that they have amazing character, as well.

On that note I will come back to the points that my colleague David Parker made with great eloquence. The State has immense resources. Two gentlemen who were traumatised, who were cooped up in a cabin for 6 months, who could not speak the language, who had false documents, and who had no friends and no phone numbers had the whole power of the State, the ministry, and the Minister arrayed against them. The State of New Zealand does not need these illiberal clauses for truth to prevail in refugee decision-making.

The Minister said that if refugees act in good faith and tell the truth, then they will be fine. I am sure he believes that. We would all like to believe that that would always be the case, but here is the rub: usually, telling the truth is not good enough in the law. It was not good enough for the mums on the domestic purposes benefit when the Minister’s colleague the Minister for Social Development and Employment outed their personal files. That action was deplorable, it was unethical, and it should have been, and may be, illegal. It was not good enough for the prison officers who testified at a select committee recently and who were told by the prison service, which was backed up by the Minister’s colleague the Minister of Corrections, that they stood to lose their jobs if they dared speak out against a provision of the Government. We live in a democracy and we ought to treasure that. We ought to at least offer some rights to have the considerations of democracy extended to refugee claimants.

Going back in history a way, it should not have been the case that Robert David Muldoon outed Colin Moyle in the Chamber, not because he was allegedly gay but because Robert Muldoon was violating his sworn duty as the Minister responsible for the Security Intelligence Service and in the Chamber used as a political debating point information that came to him by law in a different capacity.

ALLAN PEACHEY (National—Tāmaki) Link to this

I appreciate the opportunity to speak in support of Part 6 of the Immigration Bill. Part 6 provides for a streamlined deportation process that balances efficiency with fairness, and that is really the thrust of the whole bill. The deportation process as outlined in Part 6 brings together numerous provisions from the Immigration Act 1987. Words like “removal”, “revocation”, and “deportation” itself are put into an ordered framework that sets out a person’s rights and, just as important, a person’s obligations. The deportation thresholds broadly reflect the status quo, with enhancements to ensure that they are up to date and that they enable New Zealand to remove people who are not New Zealand citizens who do the wrong thing. A sovereign State must always have the right to remove people who do the wrong thing—in this case, those who do not comply with the New Zealand immigration system, or who do not comply with New Zealand law.

A key change is that in most cases the bill allows a person, with the exception of a foreign national who is unlawfully in New Zealand, to remain lawfully in New Zealand while that person’s appeal against deportation liability is being heard. This means that if the conditions of that person’s visa allow it, he or she can continue to work or study until that time—that is fairness. The bill allows for liability for deportation to be cancelled or suspended at the discretion of the Minister of Immigration, and the Immigration and Protection Tribunal can suspend a deportation liability of residents. However, a suspension may be used where the Minister wants to put a foreign national who is liable for deportation on to a form of good behaviour bond. Again, there is fairness and balance.

The Transport and Industrial Relations Committee, which held hearings into the bill—although I was not a member of the committee when those hearings were held—recommended an amendment to allow the cancellation of a deportation order of a foreign national unlawfully in New Zealand. This will facilitate the voluntary departure of foreign nationals. The ability to cancel a deportation order has some protections built around it so that it does not become another avenue of appeal for foreign nationals seeking to defer their departure from New Zealand. Again, this is balance and fairness.

One change the Government is making is the provision that the Minister can order the early release from prison of any foreign national offender who is liable for deportation, after having considered the safety of the community that the offender will be deported to. When an offender has been sentenced to 2 or more years in prison, he or she may not be released for deportation until he or she has served the lesser of a minimum of 2 years or one-third of the sentence. The requirement that an offender spend a minimum of 2 years or one-third of his or her sentence in prison in New Zealand is a clear signal about the desirability of offenders serving their sentences. But in exceptional circumstances, such as where the offender may have a serious medical condition and is being deported because of excessive cost to the health system or there are scarce flights available to deport an offender about be released, such as during a busy holiday period, the Minister has a discretion. I commend Part 6 to the Committee.

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

It is a pleasure to rise in support of Part 6, covering deportation. It is probably appropriate to begin by relating to the Committee the process that the Minister will be all too aware of, concerning the difficult decisions that Ministers and officials face in relation to what was formerly known as removal and deportation, and is now known as deportation. When a migrant has been accorded residence, but that status is removed from the migrant, typically because he or she has committed serious criminal offences, the decisions concerned are always very, very difficult—well, not always, but they are often very difficult. Although the migrant may clearly have done wrong, very often he or she has a family that has not done wrong and who will be fundamentally affected by the decision to deport the family member.

I guess the first thing I want to do is to acknowledge that those decisions are not taken lightly; they are not taken lightly in any case. Ministers rely heavily upon the advice and good offices of the department, which prepares extensive and thorough briefings, and particularly in difficult cases thanks are due to the department’s legal service, which can offer helpful advice at the most crucial of times. I would also like to acknowledge ministerial office staff, who provide invaluable assistance in helping Ministers to make those difficult and life-changing decisions for the people who are potential deportees.

We come to the provisions in Part 6. The essence of this part is to streamline a system that was more complex and more difficult to understand, into one that is more easily understood and implemented. It takes what were known previously as removal decisions for people who were not residents, and deportations for the revocation of visas and permits of non-citizens, and streamlines them all into a process called deportation—one word—for people who have visas; one word. That irons out, in and of itself, undue complexity. It also introduces more flexibility because rather than being a win/lose, pass/fail, it is easier to have gradations of decision making that are appropriate to the nature of the particular case that comes before Ministers.

The next clauses of the part are around the deportation by Order in Council of non-citizens who are a threat or who pose a risk to national or international security. This part of the bill tightens the requirement that a Minister cannot make such serious decisions on his or her own; the Minister must go to Cabinet and on Cabinet’s recommendation go to the Governor-General for an Order in Council.

I am sure there are many reasons why I cannot go into the details, and probably the official secrets legislation is but one, but I can clearly recall one case, and probably some of the officials present will remember too, when there was a grave risk concerning an individual who had allegedly—we think almost certainly—been proximate to the 9/11 bombings. Without breaching any secrets or going into the details of the case, it was possible, fully in compliance with the law and the Order in Council process, while preserving all of the appropriate legal rights of the individual, to have that person removed from New Zealand inside 48 hours from discovery of the circumstances. It was a proper, thorough, and expeditious process that protected the citizens of New Zealand. An Order in Council process was used. It was appropriate, because it was a serious matter, and it was done quickly. There is no reason why that should not be the requirement for the exercise of this very strong power. It requires Cabinet scrutiny, it requires the Governor-General’s final check, and it requires an Order in Council process.

It is a new provision of this bill that residents are liable for deportation if, within 5 years of residence being granted, new information relating to character applicable at the time of residence being granted indicates that the person would not have been granted residence if the information had been available. That is to say, if new information comes to light that changes the original decision to grant a residence permit, that information can subsequently be brought to bear upon the case to allow deportation to be effected. The types of cases that that might apply are where somebody has clearly lied to a very serious extent to falsify the conditions under which he or she gained entry. When that lie is discovered, clearly that person would not have been granted the original decision and that decision can be reversed, and the person is subject at that point to deportation.

I also want to mention that flexibility has been introduced in terms of the post-deportation re-entry bans, which were previously set at a 5-year bar for deportees. The new system allows the re-entry ban period to be graduated according to the circumstances of the case. In my view, that is both humane and ethical, and it is also good because it provides an incentive for compliance by the deportee—firstly, that he or she should leave New Zealand before being deported; and, secondly, if the worst comes to the worst and the person has to be deported, that the full circumstances of the case can be applied in determining what the re-entry period should be.

Those are just a few of the issues that occur in Part 6. In general, the Labour Opposition believes that this part is well crafted, it is well-thought-through, and in contradistinction to the amendments to Part 5, that it does offer an appropriate balance between the protection of the citizens of New Zealand, the ability to hear complex cases thoroughly, and the ability to move expeditiously when national security is threatened. Thank you.

KEITH LOCKE (Green) Link to this

I have an amendment to Part 6. It seeks to omit clause 152, “Deportation liability of persons threatening security”. That is a very short clause, but the key point is in subclause (1): “Where the Minister certifies that a person constitutes a threat or risk to security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person.” That gives quite extreme powers to the Minister, under the vague definition of a threat or a risk to security. This provision, as expressed in the previous Immigration Act, was applied to one person, and it may be the person that the previous speaker was referring to, a person by the name of Rayed Mohammed Abdullah Ali.

I want to talk about his case because I think it shows the injustice of that clause in the old Act and the similar one in the new bill. This person was Yemeni, but he went to school with one of the September 11 bombers, and one of the September 11 bombers flatted with him in the United States. When the September 11 event took place, he went directly to the FBI and voluntarily told the FBI everything about the situation. The American Government—he was married to an American woman—said he could stay in America. If he had been a danger to security he would have been kicked out of America, but he was not. He was told he could stay in America.

After some time in America he got so sick of the witch-hunt against Islamic people that he left voluntarily and went back to work in his parents’ business in Saudi Arabia. Then he decided to continue his flying lessons and he came out here. There was no prima facie case, or any obvious case, that he was a danger to the security of New Zealand, but he was picked up under the provision existing in the previous Act and, by Order in Council, was kicked out of the country. He had no legal representation.

When he arrived back in Saudi Arabia, where he had been living peacefully with his family and working in his family business, he was thrown in jail. He was thrown in jail because he had been expelled from liberal New Zealand. It was considered that someone who was expelled from liberal New Zealand must be a danger. His family visited him in jail and now he is in the community and no danger to anyone in Saudi Arabia. That is his history and it can be checked; he is a real person, he does live, and the Government can check. The Government made completely the wrong decision in that case and that can be proven by facts. That is where this legislation is so bad.

Interestingly enough, this person’s name and picture were flashed on the news on Television New Zealand last night during a special item about biometric testing relating to this bill. It stated that, somehow, if we had had biometric testing, Rayed Mohammed Abdullah Ali would have been picked up and would never have got into the country in the first place. That would have been an injustice, too, because he was not associated with September 11, and that is easily proven. His name ended up in the 9/11 commission report, because all sorts of names were just chucked in that report, but he was cleared. That case shows that we have to have a due process. We cannot have a Minister just throwing people out of the country willy-nilly.

The other point I want to make is about an improvement brought in by the select committee under clause 168, which gives discretion to the Minister. Clause 168(1) states: “The Minister may in his or her absolute discretion reduce, or remove altogether, the period of prohibition on entry that would otherwise apply to a person under section 167(1).” It gives the Minister power of discretion. Often when a person is living illegally here and an MP is advocating on his or her behalf there is a certain justice in the person staying here. We want to remove the prohibition on entry. Thank you.

Hon CLAYTON COSGROVE (Labour—Waimakariri) Link to this

I want to make a couple of brief comments on this part, as we have an alumni of former and, obviously, current Ministers of Immigration.

The CHAIRPERSON (Lindsay Tisch) Link to this

The debate on Part 7 includes debate on clauses 169AA to 239A and schedule 2.

KEITH LOCKE (Green) Link to this

I propose several amendments to this part, and I will go through them quickly. I will make a general comment, which flows from the previous part. The question here is justice.

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

Part 7 of the Immigration Bill is very large. It covers appeals, reviews, and other proceedings, including, as my colleague Keith Locke has said, the use of special advocates and classified information as part of the appeal process. Why is this part here? Well, let us begin with a short homily. Imagine refugee claimant X loses a claim, then goes to appeal and loses the appeal. Then he or she goes to the Removal Review Authority and loses the second appeal. On the way to the airport he or she thinks of a new ground for a fresh appeal, and the whole process goes back virtually to the beginning. The process can take years and can cost the taxpayer millions of dollars. Usually, it does not change the outcome.

I have spoken on a number of occasions to say that collectively we have worked hard to make sure that there are sufficient human rights protections in the bill, and this part is no different. It has appropriate human rights protections, but, my goodness, we needed to streamline the process. It was getting rorted—I think that is the technical term.

There is no justification for repeat appeal processes that are or appear to be designed simply to elongate the time the claimant can live in the country no matter how often or how decisively the various appellate bodies say he or she has to go. The system has been open to abuse, and the taxpayer has been footing the bill. We have had enough, and the system is being changed. It is being changed in a thoughtful way, not a thoughtless way, because the provisions of Part 7 amalgamate the appellate bodies into one tribunal and give the claimant one shot to make a thorough and comprehensive appeal, both on points of law and on humanitarian grounds. The appellant loses none of his or her substantive rights under the law and, it can be argued, has a better chance of success by being able to deal with all the grounds in one process. Refugees’ rights are not being curtailed, but what is being curtailed is the abuse that has too often occurred, and of which I think the public has had a gutsful.

Administrative efficiencies are made by joining the various appellate bodies into one. It was almost unbelievable that as a Minister I would get quarterly or monthly reports from each of the appellate bodies that appeared to be identical. We could hardly tell one from the other, but they were all covering separate matters, and the whole process was done in quintuplicate to make each one comply with the reporting provisions. It is much better to have them confined—

KEITH LOCKE (Green) Link to this

I want to finish explaining my amendment to clause 238 in Part 7 on the issue of special advocates. I think those members who have followed criminal trials, particularly the David Bain case, which was one of the most recent, will be able to understand how complicated it is to get to the bottom of what happened. Often context is everything. In that case David Bain and his lawyer conversed about the context of the case and the Crown evidence. It went to and fro, more witnesses and evidence came forward, etc., and it was very difficult to get to a resolution. We can see the problem with special advocates who are appointed by the Government and represent a complainant in an immigration case. The special advocate gets all this classified information and does not quite know the truth or falsity of it, or the context of it, and needs to ask some questions. Perhaps those questions will be put in an indirect form so as not to disclose the sources of the classified information, but the special advocate needs to get more of a context of that information to properly represent the complainant in an immigration case. That is all the amendment is about. We just have to trust the lawyer appointed by the Government, not by the complainant, in these particular cases.

Finally, I will explain a bit further my amendment on Supplementary Order Paper 31 to omit clause 234 “Restriction on appeal and review”, so that appeals may be taken in cases involving classified information. Clause 234(1) states: “No appeal or review proceedings may be brought in respect of classified information” under the Act. Clause 234(2) states: “no appeal lies and no review proceedings may be brought in respect of—(a) a determination of the Minister” using classified information. That is out of bounds. It may not be done in respect of “(b) the form or content of a summary prepared”—that is the summary of the classified information, or in respect of “(f) a decision to withdraw, update, or add to the classified information.” None of that is subject to review. My amendment would at least allow a review to take place. In any case, new subclause (2A) has been inserted and it is a good clause. It states that no appeal under section 219 may be brought before the tribunal unless the tribunal has issued its final determinations. That means one can get to the end of a process but there can be some appeal or review process beyond that point. I think that is important for justice.

Hon CLAYTON COSGROVE (Labour—Waimakariri) Link to this

I will touch on Part 7 in respect of a couple of comments that my colleague David Cunliffe made in terms of the amalgamation of the appeal processes, and I will reinforce the point that this does not mean the removal of people’s rights to have their case examined. With one appeal to one tribunal, with the same individuals sitting on it, there is actually an advantage in that the same individuals on that tribunal will hear the case and will be briefed on it. That is preferable to having several layers of appeal, over several years in many cases, where other individuals will come and listen to that case.

DARIEN FENTON (Labour) Link to this

It is a pleasure to take a call on Part 8 of the Immigration Bill. Part 8 is an interesting part, and it absorbed quite a lot of time of the Transport and Industrial Relations Committee because of the clauses around the powers of immigration officers. In fact, there were a large number of submissions on that issue and a great deal of concern and suspicion about it, although I think and I hope that the select committee’s recommendations have managed to allay those concerns.

Part 8 is a heavy-handed part of the bill—it is about compliance and information—although I have to say that many parts of the bill sound pretty heavy-handed when one reads them. When it comes to immigration there are some things we have to do that maybe do not always sit comfortably with us all, and much of the debate tonight has been around that.

The purpose of Part 8 is “(a) to confer on immigration officers the power to obtain information in order to allow the Department to—(i) detect immigration fraud or misrepresentation: (ii) identify persons failing to comply with immigration-related obligations, including by breaching the conditions of their visas: (b) to confer on immigration officers the powers to assist in locating persons who are or may be liable for deportation: (c) to authorise the Department to share information with other persons and agencies, to enable those persons or agencies to effectively administer and comply with legislation or to check eligibility for publicly funded services: (d) to confer on members of the police the powers described in paragraphs (a) and (b).”

As I said, the amendments sound fairly heavy-handed, but they are absolutely necessary and they build on previous legislation. In going through the select committee process for the bill we saw that many of the things people were feeling fearful about are actually not new but are powers that have been described in previous legislation.

One of the parts of Part 8 that I will talk about is clause 244(3), which states: “An immigration officer may—(a) enter any part of the employer’s premises in which the officer reasonably believes a wages and time record, or any other document referred to … is kept; and (b) require the employer or the person appearing to have the record or document under that person’s control to produce that record or document for inspection; and (c) copy or require a person to provide a copy of any part of any record or document that is required to be produced to the officer.”

There was a lot of discussion—and I think it comes further on in the bill—about the responsibilities of employers in employing people whom they may well in good faith have taken on to their payroll believing that they had the right to work in New Zealand. There was a lot of feeling from employers that the sorts of powers whereby immigration officers can come in and search their premises and demand wage and time records are a bit unreasonable. We had a lot of discussion about that issue in the select committee, and we looked at a whole range of things we could try to implement to make it easier for employers to find out whether people they are employing are legally in New Zealand. We looked at whether the Inland Revenue Department could offer some sort of complementarity, and so on. I support that idea. I do not want to see employers being punished unnecessarily, but this is a very important part of Part 8, because we do not want to see in New Zealand the rise of illegal immigrants, workers being exploited in workplaces, workers being taken on by employers and not being paid the minimum wage and other requirements of New Zealand law, and workers who are not being treated properly. We have seen a little bit of that—

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

Part 8 is an important part of the Immigration Bill. It applies to the powers of immigration officers required to undertake enforcement duties, and also deals with certain aspects of the provision, collection, and sharing of biometric information. I wish to briefly discuss both aspects.

Firstly, I acknowledge the work of the Transport and Industrial Relations Committee and the officials who serviced it. They did a very thorough job, and it is quite instructive to read the committee’s report, in particular pages 25 to 27, where the committee notes the need for adequate protections in avoiding the overextended powers of immigration officers. A series of recommendations follow, which extend those powers somewhat further. I compliment the officials who served the committee; that must have been some discussion! They are trying hard to keep a straight face.

These are important provisions. I think we are all aware of the fact that immigration officers have a difficult job to do. They need to be empowered to do it, but they also need to have appropriate safeguards in place to ensure that those powers are not abused. The Minister may wish to take a call, because one of the issues that confront every Minister of Immigration is how to appropriately draw the line between ministerial accountability and the operational independence of the enforcement arm of the department. I still have a lingering suspicion that on occasions where somebody did not particularly want to write a report to the Minister about a particular issue, the issue of operational independence was raised as something of a smokescreen for “I was playing golf”, or something. That might be a bit harsh, but I can think of one or two examples where the “head” of the department was pointed in the appropriate direction and the “tail” did not wag at the right time.

I say to the Minister that I think he should take a call to reassure the Committee that nothing like that has ever happened on his watch, and that he is entirely satisfied with the operation of the department’s enforcement arm. Sometimes the enforcement arm operates rather too much at arm’s length from the department head office, shall we say. That is why it is very important that the extension of powers given in this bill to immigration officers on the front line is not extended past the point of good sense.

The Minister has introduced, by way of a Supplementary Order Paper, certain further amendments to Part 8 around information matching and sharing. The Labour Opposition will support those amendments on the grounds of the assurances we have received from the Minister’s officials that these amendments have maintained a clean New Zealand Bill of Rights Act vet, and have the support of the Privacy Commissioner. We wish to record that we do so only on the basis of those assurances. And further, in respect of the sharing of biometric information, there is the explicit assurance of officials that some of the safeguards negotiated in the earlier version of the bill around on-passing that information to third parties have remained and will be effective in this bill.

If a non-citizen goes through an airport check and has biometric information taken, such as face patterns, fingerprints, and iris scans perhaps, it is recorded on a database, and matched against information on a partner country’s database, for example, Australia, the United States, or the United Kingdom. That information is shared and may be retained for some period, but only for the purposes for which it was collected. The understanding that has been reinforced by officials and that is part of the protection, which is a condition of our support, is that sufficient protections exist to avoid the on-passing of that stored information to third countries or to third parties in those countries, beyond the purpose of legitimate immigration or, perhaps, police activity. It is very important that this measure is not an open-ended opportunity for officials the world over to swap individuals’ private information beyond the reasons for which it was legitimately collected.

We are also interested in the amendment around information matching for health provisions. We think this is more sensible, because we have probably all heard stories about members of the community who may have fronted at a hospital—some of whom, by accident or design, may not have been entirely clear about their immigration status. Further, there may have been language problems, or it may have been such an emergency that it was not possible to ascertain whether they are legally entitled to receive free hospital treatment in this country. The information-sharing provisions here will help to iron out any inconsistencies and any lack of clarity—in the end, to the benefit of potential migrants and the hospital system. I say that for two reasons: firstly, there is a significant loss of funds to the health system when ineligible people claim health benefits in New Zealand. That is not appropriate, and we do defend it. Secondly, where individuals who are either unclear or possibly untruthful about their immigration status do get treatment and incur debt, it can be a terrible burden for them and their family to have to work their way out of it. It is better to know at the start, and information matching can assist both the hospital and the claimant to clarify the situation, if clarification is required.

We want to underline, too, that the provisions around biometric information are different between citizens and non-citizens. We emphasise that it is a condition of our support that the biometrical information of citizens cannot be stored or used for purposes other than for the departure they are undertaking, and that sufficient privacy protections apply. We are reassured by the officials that the Privacy Commissioner is happy with these provisions, and that is, and remains, a condition of our support.

So to sum up, these amendments provide what we think are necessary powers. The Transport and Industrial Relations Committee has warned against them being taken beyond the purpose for which they are intended, and has introduced some safeguards in that process. Some extensions have been included, which we are comfortable with, and the Minister has included further extensions through his Supplementary Order Paper that take us to the limit of what we can support. But we do so, firstly, on the basis of the assurances that we have received from his officials that the New Zealand Bill of Rights Act has been respected and it has been approved under the Act, and, secondly, that the Privacy Commissioner is happy.

Finally, Irepeat my exhortation to the Minister to confirm to the Committee that he has never had cause for concern that any of the enforcement arms of the department may ever have been operating at, should we say it, somewhat further than at arm’s length than he might like. I look forward to his assurance in that regard.

Hon CLAYTON COSGROVE (Labour—Waimakariri) Link to this

I want to refer, for rather unusual reasons, to clause 251, “Power of entry and search of craft”. I do this for a couple of reasons. One is a sad reason. I recall, when I was Associate Minister of Immigration, going to Auckland Airport to meet—I ask members to forgive me; I forget the designation of this individual—Carl Manning, who, sadly, is no longer with us. He was a superb public servant, a person who was taken from us and his family earlier this year. He was a person whom I rated when I was Associate Minister as someone who could have gone all the way, in respect of his career.

Mr Chairman, before you ask me, I will relate this meeting back to the bill. I recall visiting Auckland Airport, as I was wont to do—although I think Ms Thompson, the then deputy secretary of the Department of Labour, did not like me going around and asking officials what they thought; it could have been hazardous to their health. I visited the airport and asked Carl Manning what he thought needed to be changed—and I suspect this change may have originated from Carl Manning. I did this with the Minister’s leave; he was generous enough to allow me to ask the officials a question, and I did. Carl Manning told me that apparently way back in times gone by, immigration officials could not search a ship. Everybody else could search a ship. The Customs Service could search a ship, the police could search a ship, and Uncle Tom Cobbleigh and all could search a ship. But even if it was docked at the harbour, the poor old immigration officials could not, without a series of permissions, search a ship if they felt there was nefarious or illegal activity going on in respect of immigration. I remember sitting and having a coffee with Carl Manning, scratching my head, and trying to work out why this had occurred. I think he did give me, from his history, a rationale for it. So to go on the record, Mr Chairman, with your indulgence I wanted to mention that.

More important, I wanted to pay tribute to Carl Manning and to extend belatedly my sympathies to his family. This guy was initially in charge of the border at Auckland Airport. He was also in charge of some pretty heavy-duty crisis situations, and I know he was respected by the department at the highest level. As a border control officer, he demonstrated integrity and legitimacy in terms of the operation and execution of his duties. We talk about the powers of the officials at the border, and Carl Manning exercised incredible integrity and professionalism in every case that he dealt with. Indeed, he was not afraid to make the tough decisions. But he was a person, in my view, whose opinion one could always count on, and have huge confidence in, when it was put before one. In this short call, I wanted to place on the record in this Chamber my sadness at Carl Manning’s passing. The department and the country have lost a superb public servant who exhibited all the good things that are reflected in the ability that we give our immigration people to exercise their powers at the border.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I am taking a call on Part 8 of the Immigration Bill because I want to ask a question about clause 245, “Powers of entry and inspection relating to records of education providers”. I want a bit of clarification about one of the paragraphs in subclause (4), which refers to the exercise of powers by immigration officers. It provides that an immigration officer may enter any part of an education provider’s premises in which the officer reasonably believes that information or a record is held that would enable the officer to identify somebody who should not be in New Zealand. Subclause (3) states: “The powers in subsection (4) may not be exercised in relation to a person undertaking compulsory education or any member of the family of such a person.”

Given the provision that enables the Minister of Education to intervene under the Education Act to allow access to education for the children of overstayers, I ask whether clause 245 in fact lets all secondary and primary schools off the hook as far as the power to inspect their records is concerned. It is expressed not in relation to the provider but in relation to the person who is undertaking compulsory education, and I ask whether the child of an overstayer is undertaking compulsory education. I ask whether the language used here is sufficient to provide the level of protection that is needed. A lot of schools are nervous about enrolling children who are not legally allowed to be enrolled, even though at the moment schools have Cabinet authority to do so and under this new legislation would have authority to do so as long as the Minister of Education addressed that issue. The question I am asking is this: is the wording of clause 245 strong enough to provide protection from a school being used as the place where someone who is looking for overstayers and their family members goes to access information on their children? That is one of the fears that people have.

I watched a television programme a few weeks ago that interviewed an overstaying family and, in particular, the children about how they felt about not being at school. The thing that came up for me was the sense of fear in the family that if they sent their children to school, that would somehow be a means by which they would be caught out, traced back to where they were staying, and sent home. I just wonder whether the language of clause 245 is sufficiently strong to send the message that the issue is not just about a person who is undertaking compulsory education. We are actually talking about our compulsory education facilities, and about anyone who is of an age that means that person would otherwise be in compulsory education if he or she were a New Zealand resident or citizen and entitled to use our education facilities. I think that the language of clause 245 may not be sufficiently strong to give people assurance on that issue.

The second point I want to talk about is the health issue. The health rules were introduced as a result, I think, of decisions that were made when I was the Minister of Immigration. They were very important in terms of sending a very clear message about what it was that was acceptable by way of an application for residence to New Zealand, in terms of the applicant’s health status and also his or her disability status, as well. Again, that issue links into education, because we had a large number of people coming from a particular country. Parents from that country would get residence, come to New Zealand, and, essentially, one parent—normally the father—would go back to the home country to continue to run a business there, while mum stayed here with their child and enrolled that child in a special school in Auckland. A significant number of such children were in that particular school. The school was designed specifically for the purpose of ensuring that there was not the issue of gaining access to taxpayer-funded institutions; it was designed essentially to get around the immigration rules by taking advantage of that situation.

The difficulty with regard to this issue, though, is that the quality of information that is gathered and the decision that is made will sometimes be two different things. Somebody may not be entitled to access the public health system when he or she arrives—