Immigration Act 2009 Amendment Bill

on behalf of the Minister of Immigration: I move, That the Immigration Act 2009 Amendment Bill be now read a first time. The Minister, the Hon Jonathan Coleman, is not here tonight because he and his wife have just had a child, and that is a cause of great celebration. But I will not talk about squawking children too much, because I certainly do not want to upset Mr Chauvel.

I do not intend to use my full quota of speaking time for a bill that is as short as this one. I would like to take the time, however, to note that the Immigration Act was passed in this House last year with considerable support. Both the Government and Her Majesty’s loyal Opposition understand the importance of immigration, and understand the importance of this Act in modernising and future-proofing the immigration legislation. Work towards implementing the Act is under way, and this bill will support the continuation of that work. It will ensure that specified powers and functions in the Act can be exercised early.

For example, it will allow the Immigration and Protection Tribunal to be set up, and will allow the chair of that tribunal to initiate the education and training of members before the tribunal starts to hear appeals. It will also allow the chair to begin to work, for example, on a code of conduct for members. The new tribunal is a cornerstone of the new Act, as it will enable the streamlining of the appeals system. It has been put in place to reduce duplication and delay in the system.

The principal Act is significant legislation, and the implementation of the changes that are being introduced is indeed a sizable task. Section 474 was included in the Act to allow certain implementation work to be done by the Department of Labour before the rest of the Act comes into effect. This bill will bring that section into force on the day after the bill receives the Royal assent. I commend this bill to the House.

Firstly, in the spirit of the House I congratulate the Minister, the Hon Jonathan Coleman, and his wife on the birth of the latest asset to their family, their child. I am sure we all join in congratulating them. It is a wonderful moment.

I acknowledge the speaker who has just sat down, and offer my sympathy to him. He has obviously drawn the short straw. Had Mr Finlayson, as an eminent lawyer, been in charge of the Immigration Act 2009 Amendment Bill he would not have done what his Cabinet colleague did—that is, make an omission on the Supplementary Order Paper in respect of section 474. I commend the Attorney-General for biting the bullet, drawing the short straw, and leading with his chin to correct the mess-up of both the Minister of Immigration and his venerable Associate Minister, Kate Wilkinson, who, as we speak and as I said last night, is probably dropping acid—that is, folic acid. Everything that woman, as a Minister, has touched has turned to mush. From the folic acid issue to the Department of Conservation issue, there has been a litany of mistakes. I commend Mr Finlayson and I again say that had he been in charge of this bill, as he is an eminent lawyer, which I am not, I am sure there would have been no omission.

The reason we are standing here tonight, spending taxpayers’ money, is the incompetence of this Government. The Labour Opposition will support and facilitate this amendment bill, but we will make a couple of points going through. We wrote most of the Immigration Act when in Government and we supported its passage and the passage of most of its amendments, which this Government passed on coming to office. But it is amazing that there was an omission in relation to the commencement of section 474 of the Immigration Act, which, as the Attorney-General pointed out, allows the Governor-General to appoint the chair and members of the Immigration and Protection Tribunal, and allows the tribunal to publish immigration instructions for the granting of visas under the new legislation and to approve and issue the forms that will be used for the application process under the new legislation, among other things.

I note that the Minister of Immigration earned the title of “The Maestro” in this place and in other places. He was the maestro of the Mt Albert by-election that went so wrong. He is the person who was in charge of the Rugby World Cup broadcasting debacle. He is the person who earlier this month announced a new retirement immigration package. Of course, embarrassingly for him, he did not look back in history. The same policy had been investigated by the former National Government in 1999 before it lost office, and the policy was dismissed because it was unworkable. I also note, and I hope the Associate Minister of Immigration takes a call because she shares responsibility for the hash that has been made of this, that it is interesting that we are spending thousands of dollars of taxpayers’ money to come down to this House—

💬 Hon Darren Hughes: Thanks to Tau Henare.

—I could not possibly comment on that—to correct a basic error in a Supplementary Order Paper. The Government cannot blame the officials for this, because under our Westminster system the Minister is responsible. Thousands of dollars of taxpayers’ money is being spent to correct a basic error.

💬 David Garrett: So sit down and we’ll get it done quicker.

I hear from the back a squawk from Parliament’s man, Mr Garrett, who tells me to sit down and we will get it done faster. On the one hand, Mr Garrett comes from a party that believes in open, public debate—

💬 Hon Darren Hughes: No they don’t.

Well, he says he does. His leader says that he believes in empowering communities and having open, transparent debate. It is a principle that this member has never exhibited on the select committee on which he sits. He is a person who is led by the nose by the National Government—

💬 David Garrett: I raise a point of order, Mr Speaker. I have two points. One point, which I guess is no record here, is that Mr Cosgrove is talking about something utterly unrelated to the Immigration Act 2009 Amendment Bill. Secondly, he is referring in derogatory terms to members of the House who are both present and not present. [Interruption]

The ASSISTANT SPEAKER (Hon Rick Barker): I am on my feet, and there will be no correspondence entered into when I am ruling. I just make the point that yes, I think there is some merit in what the member who raised the point of order said. Mr Cosgrove was straying out of the area. He was provoked, I guess, because of interjections but I think he has had his fair share and should come back to the bill. Secondly, I did not take from his comments any particular offence that persons could have taken. I make the point to the member raising the point of order that offence cannot be taken on behalf of another person. I call on the Hon Clayton Cosgrove to speak to the bill.

Absolutely, and in speaking to the bill I say that it is important that we have public and parliamentary debate on this issue. It is very germane to this bill. Mr Garrett and other members may want us to sit down, shut up, and let these things go through, because of course it suits that member. I will say again that despite being Parliament’s man in this place, he is led by the nose by the Government to stifle any parliamentary debate that may not suit his purpose. I am sorry but Mr Garrett will have to stay awake. He will have to do his job and earn the taxpayers’ shilling. He will have to sit in the Chamber and listen to the debate.

💬 Hon John Carter: I raise a point of order, Mr Speaker. I thought I heard you, just a minute or two ago, give a direction to the member on this feet that he should address the bill. From listening to his address since the time that you gave him an instruction, he has done nothing but berate a member of this House. He has not made any reference to the bill at all.

The ASSISTANT SPEAKER (Hon Rick Barker): I have some sympathy with the point the member has made. I invited the member to address the bill. What Mr Garrett’s views are on anything is not relevant to this member’s presentation on the bill. I invite the member to come back to the Immigration Act 2009 Amendment Bill.

💬 Hon Darren Hughes: I raise a point of order, Mr Chairman—I am sorry, I mean Mr Speaker. You will be Chairman very shortly. I have great faith in you.

💬 Hon Rick Barker: Is this a demotion or a promotion?

💬 Hon Darren Hughes: It will be a big promotion for you. Within 30 minutes I see great things in your future. I think you will be a Chairman very shortly. This bill was laid on the Table just minutes ago, so the member has not had a chance to look at it. Clearly the debate will be a little wide. If the members of the Government’s support parties are going to interject and be just plain nasty and, to use the language of Dr Nick Smith, resort to personal denigration, then of course Mr Cosgrove, as a senior Labour front-bencher, will defend his honour in that respect. All I can ask is that the Acting Leader of the House, Mr Power, bring his calm hand to the proceedings at this time. It seems to me that at this rate we risk spiralling way out of control.

The ASSISTANT SPEAKER (Hon Rick Barker): I will not respond to that. I refuse to respond to that, and I simply invite Mr Cosgrove to address the Immigration Act 2009 Amendment Bill.

I am reminded of the words of my predecessor, Mike Moore, and I am sure members will appreciate this: “You’re only in trouble in this House when they’re praising you.” This bill is a relatively cosmetic amendment. I see that it is a four-clause bill.

💬 Hon Tau Henare: He hasn’t even read it.

I have had a quick skim read, because it was put on the Table about 2 or 3 minutes ago and that is it. That is why we are spending thousands of dollars of taxpayers’ money, because the Minister of Immigration either could not read or wanted this done under urgency in order to correct an error in a Supplementary Order Paper. The Minister of Immigration, by his own definition, considers himself to be an expert in this area—“The Maestro”, some people would call him—but I invite the Attorney-General to perhaps hold some tutorials, because I think the Attorney-General, in another life, was an academic who lectured in the law. Maybe he could hold some tutorials on legislative drafting, or whatever, to assist the Minister of Immigration.

We will support this bill, because we believe in the bill’s objectives. But in passing it, it is appropriate that, despite those who would stifle democracy and parliamentary debate in this place, we make the point that this is another brick in the wall for the National Party. It is another error, another piece of incompetence. I believe that the Acting Leader of the House is somewhere in the Chamber. Perhaps he is emanating from it. Perhaps Mr Power is offering Dr Coleman some tutorials. But this is another case of mismanagement as we sit in urgency tonight to debate a five-clause bill to insert a date to trigger a Supplementary Order Paper that should have been dealt with in the body of the legislation weeks or months ago when it was put up.

I say to the National Party that yesterday, I think, we saw on the 6 o’clock news that the issue of moment before Cabinet was whether we should drink beer out of cans or pottles at the Rugby World Cup—not that we should go there, because this an immigration debate. Today the issue of moment before Parliament is the correction of a date and the correction of an error in a five-clause A3 piece of paper that is supposed to be a bill.

💬 Hon Tau Henare: Sit down and let’s get on with it.

I am told that I should sit down. There is only one reason that Mr Henare would say that. It is the old saying from Dad’s Army: “They don’t like it up ’em”. “They don’t like it up ’em” in a political sense. They do not like it when the Opposition holds them to account, exposes their incompetence, exposes their mismanagement, and exposes their stupidity.

I pay my respects again to the Attorney-General. He tonight has shown bravery, elegance, honour, and he has bitten the bullet. He obviously volunteered in an honourable way to accept the short straw in Cabinet and come down here to correct the incompetence of his Cabinet colleagues—of both the Minister of Immigration and the Associate Minister of Immigration. I will give due respect to the Attorney-General during the Committee stage. We look forward to a lengthy explanation as to why this error occurred, and as to what he will do to correct the future behaviour of his colleagues so that we have bills brought to this House that are complete, are correct, and are not led by incompetent Ministers.

I will take a short call on the Immigration Act 2009 Amendment Bill, regarding section 474 and the nature of this slight change that is necessary to give it the ability to achieve its purposes. We look forward to the support of the Opposition parties in making this bill a reality tonight, so that the Act, which most parties in the House have worked on very hard over a number of years and have supported, can become the realistic and effective legislation that everyone wants it to become. It had been many years in the making. We look forward to that support. This is a very minor amendment. I look forward to the House pushing it through. Thank you.

I will also take a short call on the Immigration Act 2009 Amendment Bill. I understand that the reason the Minister of Immigration, the Hon Jonathan Coleman, is not available tonight is that congratulations are due. As a fellow MP in the Northcote area, I put on the record my congratulations on the birth of another member of the Minister’s family. That is great and I am really pleased for him.

As other people have said, the bill is non-controversial. It fixes up an accidental omission in the Immigration Act, so Labour will support it. It was made in the National Government’s Supplementary Order Paper on the Immigration Bill, a bill that had been introduced by the previous Labour Government prior to the election. The Minister has described the bill in his aide mémoire. He said the omission of a reference to section 474 in the amendment to clause 2 on Supplementary Order Paper 32 in his name was an unfortunate mistake. I have to say it was indeed unfortunate, and it is unfortunate that the House is once again in urgency and that we are once again spending time on rushing through legislation. I reflect, in particular, on the undemocratic “Sack Canterbury Democracy Bill”, which was passed earlier today. But as I said, the Immigration Act 2009 Amendment Bill is a minor and non-controversial amendment.

However, there are a whole lot of immigration issues that I hope I will get the opportunity to talk about in the Committee stage of this bill. In particular—

💬 Hon Tau Henare: This is not the Committee stage of the bill.

Yes, I will get there, Mr Henare, but I just want to put it on the record in the first reading that I will want to talk about some things that have happened since the Immigration Bill was introduced, such as the introduction of retirement visas for cash. We are rolling out the welcome mat to the world’s retirees and are discriminating on the basis of wealth. We are creating a “rich people’s visa”, and New Zealand is to become an international retirement home. I will say a little more about that when we get to the Committee stage, but in the meantime I reiterate Labour’s support for rectifying this unfortunate mistake and I give our support to its correction.

I begin by doing what the other speakers have done, and add the congratulations of the Green Party to Jonathan Coleman and his partner on the new addition to their family. I am sure it will be a great, joyful time for them.

The Green Party will be voting against this bill for the same reasons it voted against the passing of the Immigration Bill last year. This amending bill implements many of the provisions in the Immigration Act that undermine civil liberties, and we complained about them during the passage of the Immigration Bill. This is not to say that the Immigration Act is all bad. It does provide a more comprehensive and systematic approach to processing visitors and migrants than the previous legislation. Some of the really bad procedures in the old Act were excluded, such as the security risk certificate procedure that Ahmed Zaoui fell foul of. There was a weird provision in the old Act that the Minister of Immigration could get a security risk certificate briefing but it had to be oral, and the Minister could not even take notes. This involved misplaced trust in the authority of intelligence agencies, and, in this case, the SIS, which is an agency that got it so wrong in the Zaoui case. Thankfully, Mr Zaoui and his family, including his children, are now well settled in New Zealand and he is doing very well.

Such improvements in the Act last year as against the previous Immigration Act were no doubt behind the United Nations Human Rights Committee recognising our Immigration Act as positive, in many ways, in the UN report that was issued just last week on 25 March, when the committee considered the application of human rights by the New Zealand Government. However, this same UN report also criticises several immigration procedures. It proposes that the Immigration Act be amended to “ensure that no asylum seeker or refugee is detained in correctional facilities and other places of detention together with convicted prisoners”, and unfortunately that is still the case in New Zealand.

The committee also wants the Act brought fully into line with the principle of non-refoulement. This means, according to the committee, that New Zealand should not refuse to hear a refugee claim simply because the applicant could have applied in another country, deemed to be a safe third country, only later to find that that country had deported the person back to persecution in his or her homeland. I could give examples of that happening, cases of people being deported back to places like Singapore, and then on to a country of torture, where they have actually been tortured.

The committee also wanted the New Zealand Human Rights Commission to be able to “receive complaints of human rights violations related immigration laws”. That is something the Greens endorsed. In fact, last year we moved an amendment in the Committee stage of the Immigration Bill on this very question. As the Human Rights Commission has pointed out, it is wrong for it to be excluded from this important immigration area, which commonly presents difficult human rights problems.

One of the big problems in the Immigration Act, as it was passed last year, was the more extensive use of classified or secret information in immigration cases. There are now 11 Government agencies beyond the police and intelligence agencies—the SIS and the Government Communications Security Bureau—that can now determine that their information is classified and not to be fully disclosed to the person affected. Those agencies include such bodies as the Aviation Security Service, Maritime New Zealand, the Ministry of Fisheries, and the Department of Corrections.

Let us look at section 474, which this amending bill is mainly concerned with. Under the different provisions of section 474 there are broad powers to designate a person as a refugee and protections officer for the purpose of making decisions based on classified information. One of the provisions authorised by section 474 gives the Prime Minister a free hand in designating a body as an agency and enabling it to appoint what is called a special advocate to, supposedly, handle classified information on behalf of what might be called the defendant, or the person affected.

But there are big problems with this special advocate system. Special advocates are hamstrung in that once they have received the classified information, they can no longer communicate with the person they are supposed to be helping defend, and that means that the relevance and the full context of the information they have received cannot really be understood by the special advocate. This has been explained by the special advocate in the Zaoui case, a solicitor called Stuart Grieve, who presented a submission to the Transport and Industrial Relations Committee on the Immigration Bill. He was very critical of the whole special advocate procedure and the nature of the classified information he saw. He told the committee that 90 percent of it was information that should have been in the public domain or was in the public domain but had been wrongly put into the classified information basket.

Under the Act, the heads of these 14 what are called “relevant agencies”—and I have said that they go well beyond the traditional police and intelligence agencies—can determine through their chief executive officers what is classified and what remains classified. Even the Immigration and Protection Tribunal, whose set-up was provided for by the Act, cannot overrule the decisions of the chief executive officers of those agencies in that respect. The State and its departments have veto power over the system, even veto power over the tribunal in regard to classified information.

Reference was made in the introduction to the Immigration and Protection Tribunal, which is being set up now by this amending bill, if it goes through. There is a problem with its make-up, in that it does not, according to the legislation, have to have on it a person with expertise in refugee law. Refugee law is a specialist body of law, and it is important to have someone on that tribunal who understands it, particularly as this amending bill and the Act will extend the rights of detention by Government officials. The United Nations Human Rights Committee said that there should be no detention of refugees and asylum seekers with ordinary prisoners, but unfortunately that is still happening. In fact, under this legislation there will be room for them to be detained even longer. There is an extension of the time of initial detention after an asylum seeker arrives at the airport, from 72 to 96 hours, without any justification being provided for that increase in time.

Section 474 also gives immigration officers more powers to detain, and to determine that premises can be a place of detention. This is a really important issue, because we have, particularly in relation to Iranian Christians who have converted from Islam, cases where asylum seekers have been detained for a very long time. One of them, Amir Mohebbi, who has now been granted status in New Zealand, was in jail for 4 years. What is in the Act is quite a challenge to what the Human Rights Committee has said in its view that asylum seekers should not be detained in that way. The whole trend of the Act is towards increasing State powers over people who are coming here, to an unreasonable degree, and towards too much secrecy in respect of immigration processes. Thank you.

It would be remiss of me not to take a call, given the warm congratulations I wish to extend to the Minister of Immigration, and, I am reliably informed, his wife. Of course, those on this side of the House are more often married than in a partnership or some other loose arrangement, such as the previous speaker alluded to.

On the Immigration Act 2009 Amendment Bill itself, I do not intend to take 4 hours, as the previous speaker seemed to take. It reminded me of listening to recordings of Castro speaking for 4 hours about nothing.

💬 Darien Fenton: You can sit down now, then.

Yeah, I will, very shortly. This bill is a very short bill. I think Mr Chauvel knows what I am talking about when I say that there is a very helpful High Court rule that is known as the slip rule, which allows inadvertent errors to be corrected. But apparently there is nothing quite so sensible here, and we have to come back, as Mr Cosgrove has informed us, to correct this legislation. That is a bit of a shame.

But I do not intend to speak about Ahmed Zaoui’s history or his various potential connections. ACT will be supporting the amendment bill.

We also extend our congratulations to the Minister of Immigration and his wife on their new arrival. We trust that all permits are in order and that nothing went wrong with the delivery.

💬 Hon Tau Henare: I raise a point of order, Mr Speaker. The terms “no guts” and “no courage” have been ruled out thousands of times in this House, but that member sitting across the way from me, Clayton Cosgrove, has just blatantly accused our colleague Peter Garrett of having no guts and no courage.

💬 Hon Members: David Garrett.

💬 Hon Tau Henare: Oh, David Garrett, not Peter Garrett.

💬 Hon Clayton Cosgrove: Firstly, I do not believe we have a member in the House called Peter Garrett. I think he resides in the Australian Parliament.

The ASSISTANT SPEAKER (Hon Rick Barker): I want members to reflect a moment. This House will get out of order when we have personal reflections, and I want to say—

💬 Hon Clayton Cosgrove: Yeah.

The ASSISTANT SPEAKER (Hon Rick Barker): —excuse me, I am ruling here; I do not want any correspondence on the matter—that personal reflections cause disorder. When reflections are made, whether of a general nature or a particular nature, offence is taken to them. Just as it is out of order to refer to an individual as having particular characteristics, for example, being controlled, it is out of order to refer to a party in the same manner. When a member makes reflections to someone on the other side, it can cause offence, and people will react to it. I say to members of this House that personal reflections and derogatory comments are unacceptable, in general.

During the particular point raised by Mr Tau Henare, I was busy looking at the Speakers’ Rulings to speak about this matter and I did not hear the interjections, so I could not take offence at them. I say further to Mr Henare that a member cannot take offence on behalf of someone else; the other person has to do that. But the member’s point is well made. I say to members that if they play it with a straight bat and do not make personal reflections against individuals or others in general, this House will be much better.

💬 Hon Tau Henare: I raise a point of order, Mr Speaker. I did not take offence on behalf of anybody; I took offence.

💬 Hon Clayton Cosgrove: I withdraw and apologise.

I raise a point of order, Mr Speaker. There are two sets of Standing Orders in this House. There are the written Standing Orders, and, as somebody else said—a venerable parliamentarian—there are the unwritten standing orders. I simply make the observation to you that for personal reflections—which I did indeed make, and I again withdraw and apologise; Mr Henare was absolutely correct—there is also another convention in this House. When a member of Parliament brings one’s spouse, partner, or family into a debate, that is generally observed by both sides of the House as a no go area. That is under an unwritten standing order. I simply observe to you, Mr Assistant Speaker, that in my view that member made some very unparliamentary remarks about members in here. I am not asking you to take action, because I suspect that that is in the unwritten standing orders, but it is called a principle, which perhaps that member knows very little about.

The ASSISTANT SPEAKER (Hon Rick Barker): I will just say to the member that that was in some ways helpful, but in other ways it was unhelpful. If the member had reflected on what I had said, he would know that it was almost exactly the same, point for point, so it was unnecessary to relitigate. But I guess the member felt he had to get something off his chest.

Having said that, I think we should get back to business. We are here to debate. I know that the House is sitting under urgency and that it is a bit late, but we should keep ourselves under a bit of a short rein and debate the issue. I ask members to play the ball, not the player.

It made for fascinating timing to receive the observations of the 98th session of the United Nations Human Rights Committee in New York just as the Immigration Act 2009 Amendment Bill was being primed for introduction. Two aspects of that report in particular are relevant for this bill. The first is the recommendation to consider extending the mandate of the Human Rights Commission so that it can receive complaints of human rights violations relating to immigration laws, policies, and practices, and report on them. The second is that New Zealand should continue its efforts to review the status of the Treaty of Waitangi within the domestic legal system, including the desirability of incorporating the Treaty into domestic law, in consultation with Māori groups.

The first recommendation is of particular relevance to the legislation we are debating today—that is, legislation that is about appointing members, including the chair, to the Immigration and Protection Tribunal. In effect, this legislation is about one section of the Immigration Act, section 474. The Immigration Act 2009 was assented to on 16 November 2009. Within the parameters of this legislation, section 474 of the Act authorised certain persons to exercise specific powers and functions before the relevant provisions of the Act had begun. Yet when it came down to the wire, section 474 was inadvertently omitted from the commencement provision. Today, then, we are facing legislation that will require section 474 to be brought into force as soon as possible, to allow the necessary implementation work to be done. In real terms, the bill will bring section 474 into force on the day after the date on which it receives the Royal assent.

In this way, then, the bill appears to be purely administrative in nature. In fact, it appears to be purely a response to an anomaly that was not identified at the time, whereby the powers and functions of the appointed chair and the Governor-General were overlooked. The bill basically corrects that anomaly. The powers of the Governor-General addressed in this bill are related to the capacity to appoint a chair to the Immigration and Protection Tribunal. The powers also enable the Governor-General to appoint members to the Immigration and Protection Tribunal, which will decide all immigration, deportation, refugee, and protection appeals in New Zealand. Clearly, that is an area of considerable sensitivity and controversy. The bill specifies the powers and functions that may be exercised early, including the directions for the education, training, and professional development of members of the tribunal. Another part of the legislation establishes a process by which the chair of the tribunal can develop a code of conduct for members of the tribunal. In accordance with the recommendation from the United Nations Human Rights Committee, this would enable complaints of human rights violations that might emerge from members of the Immigration and Protection Tribunal, and that are related to immigration laws, policies, and practices, to be heard and reported.

The second recommendation of the United Nations Human Rights Committee is about reviewing the status of the Treaty of Waitangi within the domestic legal system. Even though we had considered that this bill might provide an opportunity to incorporate the Treaty into the bill, it appears that the bill does not provide the process to make overarching effects to immigration, and, as such, we have been advised that any amendment we might make to bring the Treaty into this legislation will not affect how the Immigration and Protection Tribunal will make its decisions. Notwithstanding these issues, the Māori Party will support this bill, which we see basically as a means of improving the administration around immigration policy implementation. The bill also provides us with an excellent opportunity to advertise our keen interest in putting forward an eminently suitable applicant to be appointed to the Immigration and Protection Tribunal. We will support this bill.