Immigration Bill

I am pleased to take a call on Part 2 of the Immigration Bill. As I did not have the opportunity to speak on Part 1, I begin by congratulating the officials and the various Ministers who have worked on the bill to this point, and also those hard-working members of the Transport and Industrial Relations Committee, of which I am one. Of course, as I was not here in the previous parliamentary term I did not face the dubious challenge of wading through the several thousand submissions I am sure the committee received on the Immigration Bill.

I will not pretend that I know terribly much about the bill, but I want to make a few comments in relation to Part 2. However, I will preface that by talking a little about the purpose clause. This is reforming legislation to establish a stronger, more flexible, and more enduring legislative foundation, as we know. But really, this legislation is about managing risk. It is the risk that the wrong types of people, micro-organisms, or pathogens will enter this country and put its people and its biosecurity at risk. Once here, the risk also is that those people will be here for the wrong duration, or for a different purpose from that for which their visas were extended. It is also worth recognising that the technologies have changed quite a bit, not only since the Immigration Act 1987 was implemented, but also, I am quite sure, since this process started in 2004. It has been a long time in gestation.

The issue in Part 2 is the ability of the immigration authorities to use biomedical and automated systems for identifying people—for example, iris scans. We heard the Green Party member Keith Locke express his serious disquiet about those technologies and the way they could be used or misused. Indeed, the Green Party mentioned those concerns in its minority view. I think it is worth reflecting on technology generally, and the way in which society has introduced it, whether it is fingerprint technologies introduced many, many years ago or DNA testing for criminal inquiries and genetic identification. These new technologies carry with them legitimate and sometimes significant concerns about the way in which they could be used or misused. I think that is the concern that the Green Party and perhaps some others have, so I am pleased to see that the bill contains protections around the use of that information, and in particular the department’s responsibility to complete a privacy impact assessment and to identify the potential effects that the use of this information may have on personal privacy.

It is another matter altogether whether in practice those processes and protections are strong enough. I think from a legislative perspective, having looked at Part 2 and realising the risks to the country, the bill as laid out provides very adequate protection. I am sure it will be incumbent on the Minister—and I have every confidence that he will do this—to ensure that those technologies are used appropriately. I certainly wish the Minister all the best in that endeavour. Obviously the country wants an Immigration Service that is of world standard, and that has the best technologies and the best processes. I do not think we can say that that has been the case in recent years, for reasons that are well documented and do not need to be gone into again. I think we need to back our Immigration Service and give it the tools and the technologies it needs to improve that performance. These sorts of biometric tools are definitely part of that.

The other area of Part 2 that I want to touch on briefly is the issue of classified information. This is another area where the Green Party has some concerns. But, again, it comes back to that fundamental risk management strategy. The risks in this area are exceeded by the benefits. I think that we need to measure those clauses in that context. Yes, there are concerns in terms of natural justice and the issues of equity when we are considering the risk assessment of certain immigrants, but I think on balance the need to keep certain information classified is well understood, and I support it. That is all I want to say about Part 2; I commend that part.

Part 2 of the Immigration Bill has some interesting features to it, but, first of all, I just want to make a couple of points. A point that I did not make before is that I am struggling with the new language: to go from having “visa” and “permit” to just “visa”, and from “removal” and “deportation” to just “deportation”, is a struggle. I will hopefully get over that by the time the law takes effect.

I want to address two things in this part. The Minister of Immigration has picked up one with the officials. Clause 7(1A) does not quite match section 3 of the Immigration Act. I asked him to address that, and he has done so by way of a typescript amendment. It appeared as if we were required as New Zealand citizens to establish our right to be in New Zealand. I have no problem with us establishing our right to enter New Zealand, but I do have a problem with New Zealand citizens having to prove that they have a right to be in New Zealand. We will vote on that amendment later.

The second issue is a little bit more vexed. Immigration consultants, lawyers, and others will struggle with the loss of section 35A and its replacement by way of clause 52, which is in Part 3. I am not going into Part 3, but I found a little part of the old section 35A tucked away in Part 2. It is clause 14. When clause 14 stands alone it does not make a lot of sense. It states: “No person who is unlawfully in New Zealand may apply for a visa and, where any such person purports to apply for a visa, it is a matter for the absolute discretion of the Minister.” That clause was tucked away in section 35A(2), and it said that nothing “confers on any person the right to apply to the Minister for a permit, and where any person who purports to apply for a permit under this section,—(a) The Minister is under no obligation to consider the application;”. But that is in the context of an obligation to hold a permit. I have a little difficulty with clause 14 being separated from the rest of the old section 35A, which we will all lovingly come to know as section 52 at some later point in time. We will get used to calling it section 52.

I do not raise these things because I am trying to be cute about anything; the bottom line is that these things are fundamentally important to people who are in our country illegally. There are a lot of them at any one time. I have heard the Minister comment about the transitional policy, as it was known in 2000, which was exactly the same as the transitional policy that the Rt Hon Bill Birch organised when he was Minister of Immigration some 10 years before me. He said that not many people—6,000 or 7,000—took advantage of the transitional policy to work their way through to residence. In actual fact, a significant number of others did not show up in that figure but actually used section 35A. We had sanctuary days where people could come forward knowing that the Immigration Service would not uplift them and put them on a plane there and then. The service was able to look through their circumstances and say that if the only thing standing in the way of those people applying for residence—which on all other fronts they appeared to qualify for—was their unlawful status, then there was no reason not to put them on a temporary permit so that they could at least test their eligibility for residence under normal policy.

That process was used extremely effectively. I would not even try to guess how many people got residence that way, but I suggest that it would at least double the number of people that gained residence through the transitional policy. When I was responsible for making discretionary decisions as Minister of Immigration, as I was for the first 2½ years in that position, I used to run that test by the cases that came to me if there was nothing standing in the way bar the unlawful status. Unless there was something dreadfully wrong about the circumstances of their remaining in New Zealand, I would put them on a temporary permit and let them test their status against normal policy. I do not think that was against New Zealand’s interest at all; I certainly commend it to the Minister.

I am very pleased to speak to Part 2 of the Immigration Bill, which is actually quite a substantial part. It covers the core provisions and matters in relation to decision making. The Government’s Supplementary Order Paper 32 makes changes to the original bill that impact on Part 2, and I want to talk about those in particular. One of the changes to Part 2 concerns the legislative ability to use biometrics. That is really all about keeping up with technology. I certainly doubt whether biometrics was a commonly used term in 1987 when the Immigration Act 1987 was passed. Biometrics involves the measurement of physical characteristics of a person for use in verifying his or her identity. Biometric information uniquely distinguishes one person from another, and can be used to confirm an individual’s identity. Common forms of this sort of information include photographs and fingerprints, which we use commonly. Other internationally acceptable forms of biometrics are iris scans and voice recognition. I am pretty sure that in 1987 iris scans and voice recognition were probably the stuff of sci-fi movies, and certainly not common practice.

The use of biometrics in New Zealand’s security system will only enhance security and help protect against identity fraud. Biometric identity information is increasingly being used in other countries, and is regarded as essential to modern immigration and border systems. Traditional, paper-based identity documents have become inadequate to manage identity fraud, and we are all very familiar with the cases that have been in our own media of people whose identities have been stolen, and the absolute anguish that they have had to suffer trying to prove their own identity. It is tragic.

People are very much aware now that huge personal damage can be caused by identity fraud, and that it can be quite time consuming to prove. The feeling is that biometrics will help improve the integrity of the immigration system in terms of confirmation in immigration decision-making, providing greater assurance in identity fraud, detecting non-citizens posing risks to New Zealand, allowing for processing immigration applications more quickly and effectively, facilitating the processing of arrivals at the border and New Zealand citizens, and taking advantage of technology to automate the current face-to-passport check that is a standard aspect of current border processing. Biometric identity information is increasingly being used in comparable countries such as Australia, Canada, and the United States, and is regarded as an essential modern immigration tool.

This bill, as far as its legislative ability to use biometrics goes, enables the future collection and use of specified biometric information for identity verification purposes, including collection, storage, and use of photographs, fingerprints, and iris scans of foreign nationals to verify their identity and check their character; use of photographs of New Zealand citizens to verify their identity and confirm their citizenship; and the ability to share biometric information nationally and internationally in certain circumstances, which are being proposed by way of the Supplementary Order Paper before us today.

The changes to the biometric provisions will ensure New Zealand has up-to-date and internationally comparable measures to address immigration and identity fraud. This Supplementary Order Paper and Part 2 are all about taking part in the modern technology that is in front of us, and making sure that we can make use of that technology going forward, so that we have the ability to keep up.

Also in Part 2 are clauses that relate to a new classified information system with special safeguards. This bill enables classified information to be used in immigration, and in refugee and protection decision-making, with special safeguards. It can be used only when the Minister of Immigration agrees, and the information relates to security or criminal conduct. The special safeguards to the classified information system are included to balance the right of the Government to use all available information to choose who may travel to, enter, and stay in New Zealand, and the rights of foreign nationals. Classified information obviously has to be used very carefully, and to date has been very rarely used. It is used only when there are very special circumstances.

I will provide an explanation of my amendment to clause 30, which is a clause dealing with the use of classified information in decision making. The amendment particularly seeks to delete subclause (2) of that clause, which relates to refugee and protection decision-making claims. There is good backing for my amendment, because internationally the United Nations High Commissioner for Refugees very strongly states that classified information should not be used in that way. In fact, in a discussion paper during the earlier review period for the Immigration Act changes the United Nations High Commissioner for Refugees, under point 21 of its paper, said “As acknowledged in the discussion paper, refugee/protection decision-making is different from standard immigration decision-making. Accordingly, UNHCR urges the Government of New Zealand to maintain the status-quo and not adopt practices that allow asylum claims to be determined and rejected on the basis of classified information. Classified information should not be used unless declassified and shared with all parties concerned. In UNHCR’s view, such a practice would be at variance with international standards of best practice.”

Amnesty International backs that up. It says in its paper: “AINZ therefore concurs with the UNHCR recommendation to maintain the status quo and that classified information should not be used unless it is disclosed to the claimant and open to challenge. As it stands, clause 30 could see asylum-seekers disadvantaged by denying them natural justice, and is contrary to the practice in similar jurisdictions, including Canada, The UK, and Australia.” Amnesty International seeks the removal of the clause 30 extension to asylum seekers.

So there is good backing for my Supplementary Order Paper, and the reason is a very practical one, too. A lot of false information about asylum seekers comes into the hands of Immigration New Zealand and the hands of appeal bodies. It comes in because asylum seekers come from situations of conflict, situations of repression, and situations where the Government of their country is not particularly keen on them, because they are very often dissidents or religious minorities. Because of that, incorrect prejudicial information comes through the system, and lands in New Zealand. Also, because asylum seekers often come from politically or religiously divided countries, the communities here spread rumours. One group could be against another group because it reflects political or religious difference from their home country, so false information about these people is fed into the system.

Sometimes even more democratic allies of the countries where the asylum seekers come from spread false information. We can look just at the Ahmed Zaoui case, where the French Government explicitly supported the military dictatorship in Algeria. So it was in the French Government’s interest to spread false information about Ahmed Zaoui, who was a democratic opponent of the military dictatorship in Algeria. That is what came through the system, and that is what caused a whole lot of problems in the system—this democrat was subject to false information by not only the military dictatorship in Algeria but also its democratic allies in Europe. So I think it is important to support my amendment.

There are a number of improvements in this part, some of them relating to the questions I have just talked about. For instance, one of the improvements is to make sure that when classified information is provided, it is provided in a balanced way, so that it contains not only the negative information about someone but also the positive information. In the Zaoui case, right at the end of the process, after years and years, the SIS admitted that it did have quite a bit of positive information as well as the negative stuff that came from overseas. That information was put on the table and it was one of the reasons the security risk certificate was taken off him.

I will briefly indicate a couple of other positive developments. The committee did a good job on bringing about these positive developments. One of the things that has been mentioned already is bringing in the Privacy Commissioner and adopting a whole procedure of privacy orders when biometric systems are being brought into the immigration processing system. That was a progressive change. Also there was improvement in clause 32, where the protection of classified information did not limit the application of the Ombudsmen Act, the Official Information Act, and the Privacy Act. That was a good step forward, so the committee did quite a good job in bringing in a number of improvements—although not sufficient, in terms of the overall context of the bill—to meet with the Green Party’s support.

I need just a 60-second call, I think, to conclude Labour’s contribution to Part 2. I congratulate the Government and the Minister on ensuring that we have a fix in Supplementary Order Paper 32 as it affects school children who are the children of people who might be here unlawfully. Clause 14A states that if one is here unlawfully one cannot work or study, and now there is a Supplementary Order Paper stating that that provision applies unless one is a pupil in primary or secondary school, and that is great.

It is a matter of fact that in the term of our Government, when this law was not in place, we were having to do this by Cabinet directive. It may even be the case that the incoming Cabinet was perhaps not as aware of it and did not maintain pressure on officials, because there seem to have been many instances of kids who were not going to school when they should have been going to school—and they were not going to school only because they were the children of parents who were here unlawfully and had therefore been damaged.

It does not fix the problem entirely because, of course, the mum or dad still may not want to send their kids to school and have the school know their home address. But it does mean, as I understand it, that those children can go to school free of charge, just as an exchange student can come from France to New Zealand and attend school free of charge. To the extent that that is the case, well and good, and, in any case, the immigration impediment is now gone, and the Government should be congratulated.

In response to Pete Hodgson’s comments, yes, this situation was drawn to my attention through the whole Gerrard Ōtimi saga, which highlighted the plight of overstayers. It became apparent that we had hundreds of overstayer children, many of them in South Auckland, who were literally just not going to school. We do not want to say that there is a clear path, through overstaying, to gain residence in New Zealand, but neither do we want children penalised by their parents’ actions. What this effectively does is allow the Minister of Education to allow these children to go to school while their parents’ immigration status is being sorted out. So we are not saying: “Well, look, overstayers, your children can go to school indefinitely, don’t worry about normalising your immigration status.” I think, though, I agree that it is an improvement on the situation we had before.

In terms of Lianne Dalziel’s point about the immigration amnesty, I think the point about amnesties is that they send the wrong signals. They send a signal that it is a path to residency, and I think it penalises people who follow the set procedure and comply with—

💬 Hon Lianne Dalziel: I wasn’t advocating one; I was advocating sanctuary days.

Effectively, the point I am making is that with the amnesty the Government gave around 2001, over 18 months the number of overstayers—

💬 Hon Lianne Dalziel: And the amnesty National gave in 1992.

I am not blaming the last Government, but I am talking about the general concept of amnesties for overstayers. Eighteen months after the 2001 amnesty the numbers of overstayers had actually risen again, so it does not seem that the concept works in decreasing overstaying rates overall. I think the educational side is far more effective. Over time, including during the period under that member’s Government, the numbers of overstayers have come down and we want to continue the trend.

I think we have canvassed the use of biometrics. The other point on Part 2 that I will make and that we have not touched on yet is that there is a provision here to allow immigration information to be shared across Government agencies to ensure that people who are not entitled, by dint of not having the correct immigration status, are not able to access free public services, whether those are health and disability services, or some of the benefits that Work and Income offers. The Supplementary Order Paper is far more specific about the types of information that various services can ask to access from Immigration New Zealand. There is provision for biometric information to be shared in the future. At the moment law enforcement agencies do not have the technology to analyse biometric information, but no doubt as technology increases and becomes more sophisticated that may happen in the future. I think this is an important safeguard of public services for the people who are entitled to them. The broader points about biometrics have been well canvassed, and it is good to see once again a broad consensus across the Chamber on this part.

The question was put that the amendments set out on Supplementary Order Paper 32 in the name of the Hon Dr Jonathan Coleman to Part 2, and the following amendment in his name to clause 7, be agreed to:

to omit from subclause (1A) “and be in”.

Amendments agreed to.

The CHAIRPERSON (Hon Rick Barker): Mr Locke, I have bad news for you. The Clerk advises that the Minister’s amendments to clause 30 have been agreed to. Now that we have passed those, your amendment set out on Supplementary Order Paper 31 to clause 30 is inconsistent with the previous decision of the Committee. Therefore your amendment is out of order.