Immigration Bill

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 Darren Hughes: Like cleaners.

Yes, we will talk about cleaners tomorrow; it will be very interesting. It is a good day tomorrow to talk about cleaners.

We have had some instances of underground sweatshops in New Zealand. We have had some examples of that in the past. We do not want to see sweatshops growing in New Zealand. We do not want to see a situation where workers are taken on by employers and used because of their vulnerable situation. We are at risk of that at the moment because we have many migrant workers who are in a very vulnerable position whereby they have had work permits, they have been made redundant, they have been given a month or whatever it is to leave the country, and they are waiting to hear whether they are able to stay in the country. Many of them are saying: “I would rather work underground in New Zealand than go back to my country, because I left my country some time ago. I gave up my job. I gave up my family. I have set down roots in New Zealand, and my children are at school.” In those circumstances, workers are very vulnerable. I would hate to see a growing underground sweatshop economy develop in New Zealand.

I support Part 8 of the Immigration Bill. Even though it might be inconvenient for employers to have to go through the process of having to prove that workers are here legally and are able to work, I think that inconvenience in the end is for the good of the employers, the workers, and New Zealand as a whole. Thank you.

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, I repeat 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.

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.

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—

Progress reported.

Report adopted.

The House adjourned at 9.55 p.m.