Immigration Amendment Bill (No 2)

A number of comments have been made in this debate in respect of a position that was adopted in 1999 in respect of another Immigration Amendment Bill (No 2). I remind the Committee that the legislation itself had already been passed by the House, and, in fact, the particular provisions in the No. 2 bill had been supported by the Labour Opposition at that earlier stage. We had supported the writing in of the United Nations Convention Relating to the Status of Refugees, and we had supported all the changes that were made in respect of asylum seekers. The No. 2 bill to which members have referred brought into effect those provisions relating to asylum seekers—specifically, those relating to mass arrivals—because there was, allegedly, a boat on the way. That boat still has not arrived today—and that was in 1999.

The only briefing, the only meeting that I asked for in this House, was a brief calling together in the lunch break, while the bill was going through the House, so that officials could provide a briefing to Opposition members.

I provided a briefing to Opposition members yesterday, through the offices of the Associate Minister of Immigration, and all the Opposition parties were invited to participate in it. I think it was perfectly reasonably to offer members an advance opportunity to ask questions about the content of legislation that was to be introduced under urgency. So there is absolutely no contradiction in the position I have adopted in this Chamber, whatsoever.

This part of the bill deals with the Government residence policy. Assertions have been made in this House that I must have arranged for the particular provisions in clause 3 to go through Cabinet and be drafted in a bill before I put out my statement saying that we intended to appeal the decision relating to the New Zealand Association for Migration and Investment case. I can tell this Committee categorically that the date that I asked officials to draft a Cabinet paper seeking permission for this clause to go into the legislation and be drafted was 23 June. Prior to that, it had not been proposed that clause 3 be included in this bill. It was only 2 weeks ago that I asked officials to do this work.

I make the point that clause 3 is not retrospective. Clause 3 clarifies the situation in respect of temporary entry to New Zealand, which is not governed by Government residence policy. If members of the National Party want to have temporary entry policy under the same rules as Government residence policy, then God help New Zealand! That would be an absolute disaster. We make decisions every day of the week as to whether people will comply with the provisions of temporary entry policy to this country. Every day of the week we get applications from people from different countries in the world, and we have to try to decide whether they will comply with the provisions of their visa if we grant them that visa. National Party members had to do exactly the same thing when they were in Government. It is a bit rich for Opposition members now to come to this House and say that they accept that a job-search visa is part of Government residence policy. It was not intended to be part of Government residence policy when the National Party Cabinet considered the Cabinet paper back in 1999, and it certainly was not in my mind when I confirmed the introduction of that policy early in 2000, when I became the Minister. That is the bottom line in respect of clause 3. It clarifies very specifically that temporary entry visas and permits, and limited-purpose visas and permits are not, in any circumstances, part of Government residence policy.

The second element of this part is the global prioritisation—something we have already introduced. It enables us to prioritise the applications of particular individuals who already have skilled-job offers. That will be good for business, good for the migrant, and very good for New Zealand.

The Minister of Immigration, who has just taken a call, needs to do some listening. If she does not do some listening, she will never get the point that members on this side have been expressing concerns about.

The Minister makes a point of Part 1, and in particular clause 3, not being retrospective in its impact. Well, it does not need to be retrospective in its impact, because the rest of the bill has the retrospective impact in it. The Minister is being entirely cute with the Committee, and, frankly, is being less than forthright with the Committee, if she thinks she can get away with an explanation like that.

Part 1 changes the judgment that was brought down by the High Court. I notice that the Minister avoided any reference to that. Part 1 does what the Minister now knows the Court of Appeal was not going to do, which was to agree with her interpretation of the Act. The Minister can wax eloquent as much as she likes about whether this was the intention of the Government in passing that bill, or whether it was the intention of Parliament in passing the legislation in the first place; she may well be right, but that is not the point. The point is that earlier this year the High Court of New Zealand brought down a judgment, dated 16 May, in which it found that some actions taken by the Minister were unlawful.

At that point—16 May—the Minister had several choices open to her. One of those choices was to say she did not think that is what Parliament intended, and she did not think that was what the previous Government intended in passing that bill, so she would go and see her very fine colleague on the other side, the Opposition spokesperson on immigration, and ask him whether he would see reason and support the Government rectifying something that Parliament had not intended to do. But the Minister did not do that. The Minister was much more concerned about the fact that the original changes that she had made, which were the subject of High Court proceedings, were changes made as a result of her losing some political arguments. The Minister, rightly or wrongly in terms of the merit of the argument, had been on the losing end of some political debate. The changes that she promoted were not changes promoted in good faith, after careful and serious analysis by officials; they were changes that were a panic reaction in the Cabinet room.

So, on 16 and 17 May, after she had the High Court decision from Justice Randerson, she did not think: “Oh, that’s not what Parliament intended. I’ll have a talk to the Opposition parties and see whether we can, without too much delay, put matters right.” What she said was: “Oh no, this was a politically driven decision made in a panic. I can’t possibly go and talk to the Opposition parties about what Parliament intended, and whether we should let the judgment of Justice Randerson stand.” She decided to try her usual trick of bluster and pomposity. As a consequence, now, further down the track, the Minister finds herself embarrassed.

She put out a press statement. I must say her explanation to the Committee a few minutes ago of the circumstances of that were less than fulsome, and I will have some further questions about that before the day is out. She says that she released a press statement on 17 June saying, in good faith, that she would appeal Justice Randerson’s decision. We are supposed to believe that she did not have in mind on 17 June, when she released that press statement, some provisions in this bill—a bill that she prepared and got ready for introduction in the House today, 2 weeks later. I tell the Minister that she has some more explaining to do if she expects the Committee to believe that. I want to see those Cabinet papers. I want her to table the Cabinet papers produced before and after she came to think of introducing clause 3 as part of Part 1 of this bill. I want to see the evidence of the Cabinet papers and the officials’ advice to her. I tell the Committee that we should oppose this provision because of that background.

Part 1 is a very serious part of this legislation, and in my view is a very serious departure from the usual way in which the New Zealand Government administers its affairs. In my view Part 1 leaves us wide open to corruption at Government levels, especially in our overseas offices, where we know that, from time to time, there is corruption. New Zealand First has had evidence brought before it that if one wants a visa to come to New Zealand, the best person to go and see in New Delhi is the bloke under the tree outside the front gate of the New Delhi High Commission. He will jack a visa up on the payment of cash. Surprisingly enough, somehow or other the visa becomes available despite the fact that there is never any contact with the high commission.

Section 13BA, inserted by clause 4, states: “(1) The order and manner of processing any application … (2) The chief executive may, from time to time, give general instructions to visa officers … (3) In giving any such general instructions, … (4) Unless otherwise expressed by the chief executive, …” etc. So there are various ways in which, administratively, applications can be processed, according to different priorities.

There has always been a principle that applications are processed on a prioritised basis—first come, first served. If an application has a defect, then, clearly, it can drop to the bottom of the pile, but one does not fiddle with an application’s place in the queue. To do so is the very beginning of corruption. It leaves the prospect of corruption wide open, especially given that the Immigration Service is so dependent upon people in overseas countries where corruption is just a way of life. It is not unusual; it is the norm. New Zealand First is most concerned that, as a result of the opportunities made available in this legislation, there will be even more of the examples that have been put to this Government of corruption involving immigration in various places around the world.

And we are being asked to rush it through Parliament. We would never agree to rush any sort of legislation through Parliament without select committee consideration, but in this case we are being asked to support a Minister’s rushing legislation through Parliament when that Minister has been proven wrong in the High Court on her interpretation and administration of legislation. That is just not possible.

I have looked at the Immigration Act—section by section, in fact. In 1984 I was chairman of a select committee that reviewed the old Act and came out with new immigration legislation, which was subsequently changed, altered, and became law in 1987. Since I became an MP again I have read every section in the Immigration Act, and in terms of, I think, sections 13A and 13B, I have two massive folders. I have been through them all and tried to ask questions on them, but every time one asks a question, one receives the statement: “Oh no, we haven’t really given effect to that.”—especially on the health side of things. So we could not possibly accept another amendment, to insert something else in section 13B, without it going before a select committee to consider whether it will work.

The new section 13B(1A) inserted by clause 3 states: “To avoid doubt, any policy … is not Government residence policy, regardless …”. The Government is saying that anything it does in these areas cannot be regarded as being Government residence policy, and I ask whether it flows on that, therefore, no certificates are required under sections 13A and 13B, to try to get around anyone having a look at this issue later on and deciding that, as a certificate has not been issued, the policy has not been complied with. The Government is saying that it is policy, but it is not policy, because the Government says it is not policy. Well, is it policy, or is it not? This legislation is saying that it is not policy even though it is policy. How can we possibly accept legislation of this kind? Just to avoid doubt, carte blanche is being given to the Minister, the executive, and the various staff all around the world, and there is no proper consideration of how it will be administered.

This is a real recipe for disaster in the administration of our immigration system, which is in some disrepair at the moment—which is why this bill is before Parliament. If everything were fine and dandy we would not be racing this bill through the House. We know that the Minister is in real trouble.

Focusing on Part 1, I think the Minister in whose name this bill stands made a very revealing statement before departing from the Chamber. She said that her first instruction to officials for the drafting of this bill was on 23 June. That is barely 6 days ago. If we take out the weekend we are talking about 4 working-days. So this bill has come back into Parliament under urgency. Obviously on Monday the Cabinet looked at it, and decided to ram it through under urgency, to deny it the scrutiny of a select committee, and to have no consultation whatsoever with the industry—where the expertise lies. In fact, we heard on Morning Report this morning that upwards of 20,000 people who have made applications could be affected by this legislation.

💬 Pansy Wong: Twenty thousand applications.

Twenty thousand applications. That is possibly 60,000 or 72,000 people. That involves 20,000 applications, but then the industry made the point that the Government does not really know. It was reckoned that that figure was the industry’s guesstimate, and the industry’s guess has become the Government’s research in this matter. That is very worrying indeed.

We have not had a satisfactory explanation from the Ministers in the chair or from any Government speaker of the reason for urgency. We have not heard that at all. We do know that Justice Randerson’s decision went against the Minister. The Government was taken to court, and it lost. The Government was wrong, and the court told it so. The Government then decided that it would appeal, and then thought: “Oh, no, there is a short cut to that. We’ll change the law. We’ll use the brute force of the State—change the law, deny people their rights, trample over their rights.” In fact, it smacks a bit of the foreshore and seabed situation, when we think about it, does it not? The Government will end up in a similar sort of pickle, because it panicked in that situation.

Such knee-jerk reactions on the part of the Government never work. We saw it with the booze tax that it slapped on us under urgency. I think it was in the last urgency period we had. Jim Anderton said that there was a crisis, and that if the Government did not move straight away, there would be all sorts of problems—and now everyone is laughing. That legislation is a nonsense, and is actually counter-productive. I predict that this bill will also be counter-productive.

I listened to the Minister’s explanation of clause 3, and I support that explanation. I think there is some rationale in the argument she put forward with regard to temporary entry. But as Dail Jones expressed in his speech, I get very nervous when I see legislation that leads off with the expression “to avoid doubt”. Whenever we see “to avoid doubt” we know we are making muddied waters worse-confounded. It seems to be inevitable. When we have to say in legislation “to avoid doubt”, trouble is on its way.

But then, turning to clause 4, which is the other part of this Part 1, I become really, really worried. In her explanation the Minister used only about two sentences and explained this provision as part of a global prioritisation. The words just sort of flowed over, and that was all she addressed. But when we actually read the words in the clause—and this is why I would have liked the bill to go to a select committee and be scrutinised—the point has been made that the provision is giving awesome discretionary powers to bureaucrats, and is raising the fear of rorts and corruption. We have had cases, and claims and allegations—substantiated allegations—of rorts and corruption in the processing of visas, and associated with immigration.

We see some very worrying text in that clause. Subsection (1) of section 13BA inserted by clause 4 states: “The order and manner of processing any application for a visa or permit is a matter for the discretion of a visa officer or immigration officer.” Subsection (2) states: “The chief executive may … give general instructions … as to the order and manner of processing any application for a visa or permit.”, but the order is solely at the discretion of the immigration officer on the ground. So the various regions around the country, or around the world, where visas might be processed, could have amazing inconsistencies and irregularities associated with them. Then in subsection (3) we see that “In giving any such general instructions, the chief executive may have regard to such matters as the chief executive thinks fit.”

I move, That the question be now put.

I want to take a call on clause 3, and, if I have time, possibly to make some comments on clause 4 as well, although with regard to that clause I support the sentiments expressed by the Hon Ken Shirley. Coming back to clause 3, however, I note that this clause, as we now know from previous contributions by members, legislates to ensure that temporary or limited visas, such as job-search visas, cannot be classed as residence visas. That has the effect of over-riding the court case, because if job-search visas are not residence visas, then section 13 of the Immigration Act does not apply to those 40,000 or so, or is it 60,00 or so—

💬 Dr Paul Hutchison: Forty-six thousand people; 20,000 applications.

—20,000 applications, and 46,000 people. Then section 13 of the Immigration Act does not apply to those people. When the Minister took a call before she left the chair, she explained the reason for clause 3. She said that it clarifies this very situation. In part, the National Opposition agrees that if there is an anomaly or a situation that possibly does not fit into Government residence policy, there are ways of dealing with that. There are legitimate ways of dealing with that sort of issue, but this legislation is not one of them.

Thousands of people started to wend their way through due process within our justice system, to have what they saw as their legitimate rights clarified, and Justice Randerson in the High Court gave a ruling that actually agreed with them, in terms of the way the Government was behaving. Then, as I said earlier, we saw that they were fortified only temporarily, when the Minister said that that was not a decision that was acceptable to this Government, and that the Government would appeal it; but then within a very short space of time the Government changed its mind, to take these draconian steps that we are debating today. And they are draconian.

I felt like commenting when the Minister was on her feet: “Tell that to the 46,000 people out there who, for 2 years, have been pursuing their applications.” They went into the court process—at great cost, I might add—thinking it was fair enough, that there were ways of dealing with the matter, and that they would follow those processes, only to find that in the end the sinister hand of the Government came in, the axe came down, and no matter what they were doing, in any event they were ruled out.

I wonder how this enhances the reputation of New Zealand. We are encouraging people to come here. I think members from all sides of the Chamber will agree that we need more people here. We need an immigration policy, as my colleague said before, that is transparent, fair—

💬 Dr Paul Hutchison: Predictable.

—predictable, and consistent. We can certainly agree with that. But when we get the kind of shambolic management of this very important portfolio that the Minister has been guilty of, what sort of reputation are we developing? It is a reputation that says we will ride roughshod over the legitimate rights of 46,000 people. As Bill Milnes of the New Zealand Association for Migration and Investment said, “The Minister is playing football with people’s lives.” Mind you, I do not know whether the Minister can play football, but that was his view. In other words, she does not care really. She does not care that these people in good faith have made application for visas to New Zealand in the way they saw fit.

I move, That the question be now put.

I would plead with you, Mr Chairman, that this part is very significant, and I do not think the Labour Government should rush through this part without giving due consideration to the very serious issues that Opposition members are raising.

I want to touch on clause 3, but I think clause 4 needs a lot more substantial debate yet. We have heard from the Minister, correctly, that on 17 June she issued a press statement challenging the High Court decision, insisting that the judge got it wrong. On 23 June she instructed her officials to draft this legislation to avoid any doubt, and she claimed that she was not even sure that it would be included in this legislation. She is trying to argue on technical grounds that it will not be retrospective. It does not have to be in clause 3, because when we start to examine clause 4, every New Zealander should be very, very concerned about this. Even though we might think it will affect only non - New Zealanders—overseas potential migrants—it is giving us a taste of the way people could be treated by Labour, supported by United Future.

Let us look at clause 4. It states that the chief executive of the Immigration Service “may give general instructions as to order and manner of processing applications for visas and permits”. Anyone looking at it might say that that sounds fair enough—the chief executive of the Immigration Service should be able to give general instructions. But let us look further. We find: “(3) In giving any such general instructions, the chief executive may have regard to such matters as the chief executive thinks fit.”

What does that mean? How are we going to examine what sorts of criteria the chief executive might have to take into consideration? This allows anything a chief executive might think fit. It carries on to say that unless otherwise expressed by the chief executive, any such instructions would not have to pay regard to the fact that a general instruction may be different from those existing at the time. So it could be contrary to the general instructions given at the time.

But it gets worse and worse. If potential applicants want to challenge whether their applications have been processed in a certain way, the legislation spells out very clearly that there is no ground for questioning whether an application is processed in an order and manner consistent with any general instruction given by the chief executive. Subsection (7)(a) in clause 4 states that “no appeal lies against the decision of the officer concerned, whether to an Authority, the Tribunal, the Minister, any court, or otherwise;”. Subsection (7)(b) provides that no review proceedings may be brought in any court, in terms of questioning any general instructions relating to the order and manner of processing. I can just imagine that from now on every application for a visa or permit will just be turned down when all the officials have to say is that it is not consistent with the “order and manner”. From now on, when my hard-working colleague Phil Heatley gets all these immigration application cases and wants to question the decisions, the officials and the Minister will tell him they might want to help him out, but section 13BA(7)(b)(iv) in the Immigration Amendment Bill (No 2), rushed through under urgency, states that no explanation needs to be given of any decision by the Minister or visa officer to process or not to process. They will say “tough luck” to Mr Heatley. Nobody, neither the Government nor the officials, needs to give any explanation for refusing to process a visa or permit, or decline a visa or permit. Nobody would ever know the rules.

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): The question is that the question be now put. As many as are of that opinion will say “Aye”; to the contrary “No”. The Ayes have it?

I raise a point of order, Mr Chairperson. This matter is at the core of New Zealand First’s policies relating to immigration. We have had only one call on this clause, and I was going to bring in new material. You have cut the debate short. You indicated at the beginning that it was a wide-ranging debate, and we have had five calls on this matter, with only one New Zealand First call. I respectfully ask that we get a second call at least.

The CHAIRPERSON (H V Ross Robertson): I refer the member to Standing Order 139, “Acceptance of closure motion”, and Speaker’s ruling 54/2. I am the sole judge of the debate. Nothing new was coming forward. I have already put the question and the vote has been taken.