Immigration Bill

I am pleased to speak to Part 9 of the Immigration Bill. This part is about detention and monitoring, and the purpose of it is to establish a tiered detention and monitoring system in order to ensure the integrity of the immigration system through providing for the management of persons who are liable for deportation. This part also ensures the safety and security of New Zealand when a person who is liable for deportation may constitute a threat or risk to national security.

Part 9 relates to quite a small minority of individuals. Most individuals who have gone through the refugee appeal process and failed will accept the decision and leave New Zealand in an appropriate and timely way through a deportation process. This part relates to those individuals who are obstructive and actively hinder their deportation from New Zealand. The initial period of detention can be up to 96 hours without a warrant. In that case, the individual would be in police custody. Following that, a warrant of commitment can be applied for in the District Court for up to 28 days. The warrant can be reapplied for on consecutive occasions.

Generally speaking, there is a 6-month limit on immigration detention except where a foreign national hinders his or her own departure. Those individuals who actively hinder their deportation from New Zealand compromise the integrity of the immigration system. There is the option that the individual can be released into the community, but that would have to be negotiated. There would be conditions of release into the community, and there may be reporting requirements, residential requirements, a requirement to present for interview, and so on.

The actions of foreign nationals who deliberately hinder their deportation sets a precedent to others. Such actions suggest, for example, that if someone refuses to sign travel documents for long enough, he or she will secure release into the community because the Government cannot deport him or her. Therefore, the Government is proposing to strengthen the detention provisions by way of an amendment whose effect is that such people cannot seek to be released from detention due to the length of time they have been detained. I commend this part to the House.

As the previous speaker, Jackie Blue, indicated, Part 9 of the Immigration Bill is about the detention and monitoring of those who have or may have broken the law in respect of immigration. It lists what the powers of the State are and are not. I want to spend a little time exploring the circumstances under which those powers may be used.

At the moment the New Zealand Police is conducting an inquiry into allegations against a member of this Committee that there was the possibility—so say the allegations—of a false or fake jobs for cash deals going on. That is against the law of the legislation we are passing, and the detention and monitoring powers in Part 9 are how we find out. In more recent days, it has become clear to me that this may not be the only case of its type involving a member of the Committee. Melissa Lee, who now is a member of Parliament, made a National Party video using her facilities at Asia Vision Ltd and hired a woman by the name of Miss Casalme.

💬 Hon Tau Henare: The only one that’s in prison is a Labour Minister!

Attempts by the Opposition to shout me down will not work, because I have the microphone. I am led to believe that Miss Casalme worked voluntarily for Miss Lee in making the National Party video—so far, so good. There are issues around whether the video should have been authorised, but that is well outside the scope of this bill and I would not dare dwell on it. But the case is that a job was created for Miss Casalme. She desperately wanted to stay in New Zealand, she desperately wanted permanent residency, and she desperately needed the immigration points that one garners for this or that reason to get herself across the threshold. She did not have a job that was sufficiently senior, so Melissa Lee created one. She created a job that was sufficiently senior, and that did not exist before in her company. This was not a fake job for cash deal; it was a fake job for voluntary effort deal, because the same woman, Miss Casalme, worked on a National Party video voluntarily, and then the job was created. One assumes, though I do not know, that the woman then went on to put in her permanent residency application.

Part 9 of the bill deals with this sort of stuff; it deals with people who take our immigration law and try to bodge it. It deals with people who set out to—

💬 Simon Bridges: Like Taito, the one Helen Clark said was guilty only of trying to work hard.

I ask members who is guilty of trying to work hard.

💬 Simon Bridges: That is what Helen Clark said about Taito Phillip Field.

Taito Phillip Field is in jail because he did some things against the existing legislation that he ought not to have done. He got caught, got taken to court, and got put in jail. My question is: who is joining him? That is what I want to know. I want to know whether other members of this Committee—

💬 Hon Tau Henare: Only Labour Ministers!

I am asking the question. If we know there is a police investigation into allegations of jobs for cash, I wonder whether there will be—

💬 Jo Goodhew: I raise a point of order, Mr Chairperson. I ask for your guidance on whether this matter is relevant to the question under debate, under Standing Order 107(1).

The CHAIRPERSON (Hon Rick Barker): The member is quite correct to point out the Standing Order, but I say that it is generally accepted in this Chamber that members speaking can and are entitled to respond to interjections. A healthy stream of interjections has been coming from the National benches, to which the member speaking has responded. The interjections are quite off the matter in debate, so if National members want to keep to the narrow letter of the Standing Orders, and then hold the Opposition to account for that, then they should do so themselves.

💬 Michael Woodhouse: I raise a point of order, Mr Chairperson. I seek your advice about whether the speaker’s comments are out of order in relation to Standing Order 116, which makes out of order offensive reference to a member’s private affairs, particularly those that are completely unsubstantiated.

The CHAIRPERSON (Hon Rick Barker): I say to the member that Standing Order 116 states: “A member may not make imputation of improper motives against a member, an offensive reference to a member’s private affairs, or a personal reflection against a member.” As I understand it, the member speaking has repeated issues that have been raised publicly and that are part of the public record—I may have got that incorrect, but that is how I understand it. If it is in the public domain and is being publicly debated, then I will not rule it out of order.

💬 Michael Woodhouse: I raise a point of order, Mr Chairperson. I accept that point unequivocally, but I question whether the member’s implication that others may join a former member of this Committee in jail as a consequence remains outside of Standing Order 116.

The CHAIRPERSON (Hon Rick Barker): The member correctly—[Interruption]—I am ruling on this matter—identified the words: “others might join them”. I did not take that to mean necessarily other members of Parliament; it could include them, but also others. Had the member said: “other members of Parliament will join them”, then of course that is a reflection on the House and the member would be unwise to do that.

💬 Simon Bridges: I think you should say some of this outside the Chamber, Pete.

Oh, so they have not stopped interjecting. You gave them the advice, Mr Chairperson, that if I was to stick to the knitting, they would have to keep their mouths shut. But as soon as I get to my feet, away they go! So away I go! It is easy: if members want me to stick to the knitting, then they need to keep their mouths shut. The Chairperson just told them that.

I have some advice for Melissa Lee: if she thinks I have said anything wrong, in part or in whole, she can either take offence, now or later, or take a call, as soon as I finish or later. She has plenty of options, and I urge her to exercise them as she sees fit. As I understand it, there is the case of a job being created for a woman who did voluntary work in the unpaid employ of Melissa Lee. I wonder whether the detention and monitoring provisions under Part 9 are relevant. Certainly it is only by monitoring that these things are brought to account. The new law that we are looking at passing has an ability to detain people for short, medium, or long periods for a variety of reasons, including questioning. So I would have thought that Part 9 is relevant to the issues that I raise.

Now that National members are silent, I say again—

💬 Hon Tau Henare: You’re still a scumbag.

Oh!

💬 Hon Clayton Cosgrove: I raise a point of order, Mr Chairperson. I think you can anticipate what my point of order may be.

The CHAIRPERSON (Hon Rick Barker): I am not anticipating anything.

💬 Hon Clayton Cosgrove: Well, that is unparliamentary language. I think it is well know that under the Standing Orders one cannot use language like that in Parliament. The member should withdraw and apologise.

The CHAIRPERSON (Hon Rick Barker): Normally, it is the member who is speaking who would take offence. If the member is offended by it, which I have the indication from him that he is, then I ask the member to withdraw and apologise.

💬 Hon Tau Henare: No.

The CHAIRPERSON (Hon Rick Barker): Well, I advise the member to withdraw and apologise—

💬 Hon Tau Henare: I’ll just get my stuff together.

The CHAIRPERSON (Hon Rick Barker): No, that is not good enough. I say to the member that there are rules in this place. I have never asked any member to leave, and I want to get through this term without doing so. But if the member does not withdraw and apologise for that remark, which is offensive, then I will simply have to do so. Does the member refuse to withdraw and apologise?

💬 Hon Tau Henare: Yes.

The CHAIRPERSON (Hon Rick Barker): The member will leave the Chamber for the rest of the day.

Hon Tau Henare withdrew from the Chamber.

The CHAIRPERSON (Hon Rick Barker): I think in a way—and sometimes I reflect on this—the punishment should be forcing the member to stay here till 10 o’clock, and, if I could do so, making him read his own Hansard. But never mind, the standard thing is for the member to withdraw, to leave the Chamber until 10 o’clock.

So we have, in Part 9, the detention and monitoring provisions, and what I have done—though I have been interrupted throughout, which is why I needed to take a second call—is point out the possibility that two members of this Committee may find themselves having a careful interest in this part. It is good to see that at least one of them is here, and I hope we might get to see the other later, because it matters to manage our borders in a way that is legal and according to law. Jobs for cash allegations are serious, and jobs for voluntary assistance allegations are serious. Of course, they are much more easily made than proved, and we need to be careful about that. But those allegations are swirling around two members of this Committee. One of them is being investigated by the police, to what end we do not know. One of them is not being investigated by the police. That one is being asked only to pay back an amount a little short of 100,000 bucks for some accounting errors. But, you see, accounting errors are not part of immigration law, so I cannot dwell on that, either.

If this Parliament is to pass legislation, it would be good to know in advance that all 120-something of us think that the legislation is good, and that all 120-something of us are prepared to be bound by the legislation. Right at the moment I have my doubts.

Part 9, as my colleague Pete Hodgson said, deals with immigration detention and the hindering of deportation. I am a former Minister of Immigration, and when my colleagues and I addressed parts of this bill some days ago we reflected on our relative experiences as Ministers of Immigration. I see that Damien O’Connor, who is a former Associate Minister of Immigration, is here along with me and the Minister in the chair, the Hon Dr Jonathan Coleman.

I recall, for instance, the case of one Mr Yadegary, who delayed his own departure—and I have to be careful because my memory is slightly vague on this—through not signing, I believe, a travel document. I think he was either from Iran or Iraq; I cannot recall which. I know that in that case the courts took the view that the length of time he had been incarcerated was a determinant factor in his release. I recall that case—and others—and was quite disturbed by it, because in essence the courts took the view that even if immigrants were here illegally, had gone through the relevant appeal processes, and had been found wanting in those appeal processes, they should somehow, because they had hindered their own departures through, for instance, not signing a travel document, be let out. That was the court ruling because of the perhaps inhumane length of time they were incarcerated.

Part 9 attempts to deal with that, and we support that because it should not be the case that by the action of, for instance, refusing to sign a travel document a person can somehow just wait out the time before being allowed to remain in New Zealand. In the Yadegary case the court effectively set a precedent, or a benchmark, if you will, to say that if such people wait out X number of months, a court is likely to deem that they can be let out and remain in New Zealand.

There were people, in the case of Mr Yadegary, who protested that he should be allowed to stay for a variety of reasons. We have had cases, and I think I mentioned them some days ago, where those who were travelling from overseas converted to, I think, Catholicism—my own religion, not that I am the best Irish Catholic in the world—en route.

💬 Grant Robertson: You confess a lot.

I do confess a lot; that is right, so my colleague says. But today is not the day; that will wait for another time, and I thank my loyal colleagues behind me. Some people converted by osmosis, in one case, I think, in the airport lounge in Seoul en route to New Zealand. They then gained such a profile that they believed that they could not return to their country of origin—in one case I think it was Iran. They had raised their profile so much that they were deemed to be in a position, having converted from the Muslim faith to the Catholic faith, that if they were to return home, something nefarious then might happen to them—they might well be imprisoned, or worse. That being the case, one could also argue that if they had kept a low profile, they may well have returned.

I recall that when I was Minister we used the UN guidelines—I cannot recall the technical term—from the United Nations High Commissioner for Refugees that determine whether returning a person to their country of origin is detrimental to their well-being or health. I think those international agencies, guided by our intelligence agencies, and officials from our departments with their labyrinth of global networks and tentacles, and the appeal agencies, are the agencies that should determine whether somebody can legitimately stay.

I agree with and support Part 9. Labour supports Part 9 as it attempts to tighten up on people who should be deported if they are hindering their own circumstances. It should not be the case that a person who refuses to sign a travel document is allowed to stay. I recall in one case we had to send officials to Canberra to try to get the embassy there—I think it was the Iraqi embassy—to provide travel documents. In the case of Iran, I think it would accept nationals back only if they went voluntarily and had signed a document. So the New Zealand taxpayer, either through the corrections system incarcerating the individual, or through other social services if the individual is let out is, in a bind where a person who is here illegally can, by hindering the departure for a length of time, and through the decision of a court, remain in New Zealand.

When those immigration decisions are made, it is appropriate, as this legislation provides, that appeal authorities make proper decisions with the guidance of officials and others, and, ultimately, the appeal authorities themselves. We have had high profile cases—and I mean no disrespect—where church leaders, church organisations, and other organisations have campaigned very heavily for individuals. I recall some people who said—I think it was about Mr Yadegary—that he was a nice bloke, therefore he could have stayed. I never met the chap, so I would not have known, and that may well be the case. But I do not believe that those sorts of arbitrary tests should set aside the appeal authority’s work and research in decisions, or the input from officials, from intelligence organisations, and from the United Nations High Commissioner for Refugees in terms of whether somebody should be returned to their country of origin, and we should then just put our finger in the air and say that somebody should stay if enough people jump up and down and make a fuss about it. I mean no disrespect to those people who through goodwill campaigned for individuals, but there has to be a test and it has to be authoritative. There are appeal provisions—that is why they are there—and learned men and women and independent appeal authorities are trusted with making decisions.

To conclude, I have said in a previous debate that New Zealanders will be convinced of the integrity of our border and of our immigration system and that we are indeed letting in the right people only if the counterfactual prevails and we are vigorous in preventing people of ill will or people who should not be here from getting into the country. To put it bluntly, we should, where appropriate—after relevant appeals, independent advice, and decisions—remove those folks who are here by illegal means or under false pretences. If we do not have integrity in our removal system and if we do not have integrity in securing our border—if we do not have integrity in those areas—then it is difficult, especially when we come to humanitarian cases; for instance, in the case of the previous Government when it came to the Tampa refugees. A Government of the day might say that we should be a humanitarian country, that we should do our bit, that we should take our refugee component as we do each year, and that perhaps we should make an exception and take more from time to time. I do not think the community would accept that if it did not have confidence that we were securing the border.

I support Part 9 and I support the amendments. I think they are sound and will deal with, and perhaps take away from or move some distance away from, court decisions that are simply based on the length of time in incarceration and not on the validity of one’s case as a legal migrant.

Allow me to address Part 9 of the Immigration Bill in the Committee stage, in the absence of my colleague Keith Locke. The amendments we have proposed as set out in Supplementary Order Paper 31 of 22 July are, first, to clauses 271A and 285(10). Those measures would result, in our view, in allowing asylum seekers who have not committed any crime in the community but who are to be deported, to remain in jail for the rest of their lives, perhaps, if they did not sign documentation necessary for their own deportation. The classic cases in the past forty-eighth Parliament were those of the Iranian Christian converts from Islam who were imprisoned for lengthy periods for not signing papers required by the Iranian Government for them to be deported from New Zealand to Iran. They refused to sign because they believed that they would be persecuted back in Iran and such conversion, or apostasy as they saw it, was a criminal offence there. The bill tries to eliminate any possibility that any such person might have a case for bail. It also eliminates the length of time in prison as a special case for release from prison. Our amendments try to stop this injustice happening and to stop New Zealand breaching the principles of habeas corpus.

Our amendments are also to clauses 273 and 275, and keep the initial maximum detention time of asylum seekers arriving at our border at its present 72 hours rather than be extended to 96 hours, as the bill proposes. There is no good case for such an exemption. Our amendment to clause 285 would reverse the proposal that “exceptional circumstances” would not include the period of time that a person has already been detained. Instead it would propose that such circumstances can indeed include such detention time.

Finally, our amendment to clause 289(2)(c) eliminates the phrase in the bill that “classified information must be treated as accurate.” What possible correlation can exist between secrecy and accuracy? Divine right to rule, and the infallibility of the prince, have gone out of fashion. It is information that must be tested like any other information.

I recommend that the Committee revisit these five proposals for amendment in our Supplementary Order Paper. Thank you.

I will make a brief contribution to Part 9. I will reflect on the work of the Transport and Industrial Relations Committee, of which I was a member during its consideration of this very large bill, which took a large amount of time. The committee was under the excellent chairmanship of Mark Gosche.

💬 Paul Quinn: Who?

I tell the member not to be disrespectful.

This part of the bill caused some considerable angst for the committee. It is a highly sensitive issue, in a highly sensitive area. I mentioned in my second reading speech that getting our heads around this Immigration Bill was difficult, both for me and for other members who have any sense of humanity and do not like to see anybody detained, and detained for any length of time. However, as others have mentioned, during the last Parliament we had a couple of high-profile cases, and I came to understand that we need to have a system of trying to manage those non-citizens who have been through all the appeal processes and have not qualified as refugees. Therefore, they have no right to remain in New Zealand, but they deliberately hinder their departure by refusing to sign documents that would enable them to leave. As others have mentioned, there were court cases that created an incentive for those non-citizens to wait out time in detention, in order to secure their release into the New Zealand community.

From Labour’s point of view, we felt that this impacted negatively on the integrity of the immigration system. Therefore, the select committee, when weighing things up, looked hard at this issue. It heard many submissions, but it also supported the amendments to the bill that create the presumption of exceptional circumstances—that a non-citizen who hinders his or her departure will be detained after the first 6-month period—and also exclude the length of detention from being an exceptional circumstance for the purposes of detention and monitoring.

As others have said also, Labour supports the Government’s Supplementary Order Paper 32. The intention of this Supplementary Order Paper builds on what we were intending to do, as reported back from the select committee, but I understand that Crown Law advice is that it should be amended to ensure that Part 9 should work as it was intended to. We support that amendment. As I said, it is a very, very difficult area, as is the whole area of immigration. It is extremely fraught. We are dealing with human beings and with families, and we do have to act humanely and fairly, but on balance I support Part 9.

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 9 be agreed to.

Amendments agreed to.

The question was put that the amendment set out on Supplementary Order Paper 31 in the name of Keith Locke to clause 271A be agreed to.