Immigration Act 2009 Amendment Bill

Mr Hughes is very modest in allowing me to take the call; it is one of his endearing qualities that we love so much. I want to briefly address a couple of things in the Immigration Act 2009 Amendment Bill that the Minister in the chair, the Hon Christopher Finlayson, may want to touch on. As I said in the previous debate, I would be grateful if he might advise us on what legislative solutions he may be proposing in terms of the legislative drafting process. I also want to address some of the wider issues, as posed by Mr Locke, around this bill.

As a former Minister of Immigration, I say that the first responsibility of whoever is that Minister in the Government is to secure the borders of this country, and I think members on both sides of the Chamber agree with that. Mr Locke referred to a number of cases where alleged—and I say that advisedly—refugees were incarcerated for allegedly, in at least one case, converting to Catholicism, thereby inviting some sort of threat because they had gone public with that in their homeland. I believe that in the reported case that homeland was Iraq. I said in the debate on the substantive legislation that I was aware of that case and of others. Where it becomes difficult is where the United Nations deems that there is not a threat, and we have to be guided by that.

I recall that on a number of the cases that I dealt with as Minister, there were great protestations by members of my own church. In respect of one or two cases, certain people were very nice individuals. I think that one was a chef who had cooked for Bill Clinton. But in my view, those were not valid reasons to walk away from the rule of law or the legislation and to not take officials’ advice and the advice of intelligence agencies in terms of the veracity, or the lack of it, of those people’s claims. I say to Mr Locke that when people convert at the airport in Seoul to any religion, fly over to New Zealand, tear up their passports, and then claim as they yell from the highest building that harm may come to them if they go back home, and, on top of that, when the UN Human Rights Council does not make the same recommendation in respect of a threat to their life, then I say that we should respect the advice of agencies, including our own department and intelligence agency. At the end of the day, Ministers must make a judgment, and they do. It is our job as a Parliament to secure our borders as a priority.

This amendment bill has resulted from an omission on Supplementary Order Paper 32 in relation to the commencement of section 474 of the Immigration Act 2009. I note that the powers referred to in the bill are in respect of the Governor-General appointing members, including the chair, to the Immigration and Protection Tribunal; the chair of the tribunal directing the education, training and professional development of members of the tribunal; and the chair of the tribunal developing a code of conduct for the tribunal’s own membership. As I said, the Attorney-General has been good enough to proactively suggest that he will be proposing changes to the drafting process to avoid this happening again, and we endorse that.

I come back to the original Immigration Act 2009, which was passed earlier in this Parliament. I believe it had the support of nearly every political party in Parliament. I say to Mr Locke that maybe he would like to reflect on where his allegiance lies. This is New Zealand. We have to treat people appropriately and we have to be humanitarian to all those who come across our borders, but, equally, we expect them to be legitimate and to not abuse our rules, laws, and good graces by making false claims. At the end of the day, whichever party the Minister of Immigration is from in this Parliament, be it Labour, National, or otherwise, he or she is charged on advice to make a decision on the veracity, or lack of it, of those claims.

If people choose to stay in prison because they will not adhere to our immigration laws, then I say to Mr Locke that that is a matter for them. If we look at the international jurisdictions around the world, I would wager that very few of them now do not look to the security of their borders and do not look to differentiate between those who make false claims as refugees or otherwise, and who abuse our humanitarian systems. If we let in someone who abuses that system, then he or she will also take the place of a true refugee or true person who crosses our border to escape tyranny from another country. Finally, I would invite Mr Locke to reflect on those comments.

I take up the challenge from my colleague Clayton Cosgrove with great pleasure. Of the people whom he referred to, like the Iranian Christian convert who was a cook and the four Iranian Christian converts from Islam who served long terms in prison, from several months to 2 years—and 4 years in Amir Mohebbi’s case—every one of them now has proper immigration status in New Zealand and is living here as a legitimate person in our country. They are doing very well. They are not committing any crimes. Clayton Cosgrove’s idea that somehow those people should be rejected was actually a view that was turned down by the immigration authorities in New Zealand in the end. The problem was that someone like Amir Mohebbi had to be detained for 4 years, because he did not want to be deported back to Iran, where he may well have been persecuted as a Christian convert from Islam.

💬 Hon Clayton Cosgrove: The UN didn’t agree with that.

In regard to Clayton Cosgrove’s reference to the UN, I say that the UN does not always get it right. There is a simple fact governing the UN’s attitude to the situation in Iran, which is that Iran takes many thousands of refugees from Afghanistan. The UN does not want to endanger that, so it does not look at—

The CHAIRPERSON (Eric Roy): I am trying to get my head around exactly which part of clauses 1, 2, 3, and 4—

I am responding to—

The CHAIRPERSON (Eric Roy): No, I cautioned him as well. One errant speech that is quite broad does not open space for everybody else. We are debating the Committee stage. The member can make illustrations in comparison, but he must tie them back to the clauses.

I relate this point back to the Immigration Act and the provisions in it, as I did in my original speech. But when a member stands up and spends virtually his whole contribution criticising me on those points, surely I have the right to defend myself on those points. I think that the whole question that the United Nations Human Rights Committee raised, and on which it was critical of New Zealand’s immigration procedures in the Immigration Act, section 474 of which we are implementing, was on the question of non-refoulement—that is, people being returned to their country of origin, where they may be persecuted. That was specifically stated in the report issued on 25 March by the United Nations Human Rights Committee.

In the case of the Iranian Christian converts from Islam, the Iranian Lower House has passed the first reading of a law providing for the execution of people who convert from Islam, the religion of their birth, to Christianity. It is actually in a law that has passed its first reading in the Iranian Parliament.

The other thing that we have to put in that context is the fact that a few days ago Amnesty International issued a report on executions around the world. No. 1 was China, and near the top was Iran, where they have been executing people, particularly since the recent protests. If we combine all these factors, particularly where asylum seeker’s names are known, we know that people who are deported back to Iran are under some risk of persecution. We have to take all of that into account. We should not let people just rot in jail for the rest of their lives in violation of habeas corpus, and have provisions in our Immigration Act that allow that to happen just because they will not sign bits of paper. We cannot allow them to be deported back to Iran to possible persecution and even execution, in terms of the law being passed through the Iranian Parliament. That is why many Christian people, particularly those of the Catholic faith but also of other faiths, were so strong in their support for the people whom they knew were good parishioners in their church. They knew that they were true converts. I take Mr Cosgrove’s point that some people can use that as an excuse, and no doubt some people have used that as an excuse, but the people in the cases that he raised are now solid, determined people with the proper immigration status in New Zealand.

The CHAIRPERSON (Eric Roy): Let me say right now that I blame myself for that; I do. I am flagellating myself. The score is now one all, and we will now talk about the commencement date and the issues surrounding that.

That is indeed what I intend to do, Mr Chair. I do intend to speak about clauses 1 to 4 of the Immigration Act 2009 Amendment Bill. I will start with clause 1, “Title”, which reads: “This Act is the Immigration Act 2009 Amendment Act 2010.”

Indeed, we could call this bill, if we wanted to, the “Immigration (Unfortunate Mistake) Amendment Bill 2010”, or we could call it, if we wanted to, the “Immigration Act the Minister Intends to Find Other Solutions for”—which, of course, we welcome—“Amendment Bill 2010”. I could go on about that, but members on the Opposition side of the Chamber are generous, and as we have noted, the Minister has said the omission of a reference to section 474 of the Immigration Act on Supplementary Order Paper 32 should not have happened, and he will be looking to find solutions. I do not want to blame the drafters of the Immigration Bill, but I will say, as I said earlier, that it was a huge bill. It was a bill that took many, many years to work on. Those of us who are now on this side of the Chamber worked on it; we began the work on that bill. We worked on it in the Transport and Industrial Relations Committee, and in fact—

💬 Hon Clayton Cosgrove: We wrote it.

—as my colleague says, we wrote it—we took it through all of its process in the select committee, and then it came back for its second reading under this Government. So I do not want to spend too much time on trying to debate whether there should be a different title.

I would like to talk about clause 3, if I may, which states: “This Act amends the Immigration Act 2009.” I think that one of the things that the Act does is to set up the whole kind of platform for future immigration. Unfortunately, there have been some pretty awful announcements since it was enacted, and I am sure that I am allowed to refer to those, because this bill is about the commencement date of that Act and what happens in bringing it into force. I mentioned in my first reading speech the cheque-book immigration policy announced by Minister Coleman. I do not want to be too unpleasant about that Minister’s life; I know that he has things to celebrate. But I have to say we are very concerned that the prize of New Zealand citizenship is being sold to the highest bidders, never mind what skills and values those people may or may not possess. I do wonder about this whole thing of bringing retirees into the family category—the parent category—and whether we are talking about the Government’s latest make-work programme. You know, we are going to bring in these older people—

The CHAIRPERSON (Eric Roy): No, commencement.

Commencement? OK—no principal Act. Are we bringing people in for a make-work programme?

The CHAIRPERSON (Eric Roy): No!

All right, Mr Chairperson; I will move on to the next clause, which deals with the commencement of the legislation.

Clause 4 is about the commencement date of the principal Act, and some announcements have been made since that Act was enacted. A change to the registered seasonal employers’ scheme removes the minimum wage for workers there. That change has been made since the 2009 Act was enacted, and it will be affected by the commencement date of this bill. We on this side of the Chamber are very concerned about that. So in relation to the commencement provisions in clause 4, we are saying perhaps we should backtrack a little and go back to the situation that existed when the Act was brought into being in 2009. The Minister should retract the announcements that he has made, because, quite frankly, they are appalling. They are affecting New Zealanders; they are affecting New Zealand workers and other New Zealanders. As I said, it is cheque-book immigration. It is about providing visas for cash, and we do not support that. Thank you.

In speaking to these clauses, I note that in respect of clauses 2 and 4, and in light of the Attorney-General’s comments about changes that he may wish to make to the legislative process, it is worth reflecting on the history of why this omission occurred. I am advised that the omission of the reference to section 430—which is section 474 in the current Act—in the commencement section of the then Immigration Bill occurred between versions 22 and 23 of the Supplementary Order Paper. I was quite astounded by that. In version 22, the commencement section contained the required reference to section 430—I am mindful in making these comments of being extremely specific about the bill—in Part 12 of the bill. I am told that in version 23, the references to sections 430 and 431 were changed to refer to “Part 13”. I am also advised that the department noted that that was inconsistent with the subsection dealing with information sharing with employers, and I am also advised that the department requested that the Parliamentary Counsel Office change “Part 13” to refer to the specific sections being brought into force. Indeed, in making that change, section 430 was unfortunately omitted.

That, I know, for those people like myself who are not lawyers, sounds to be quite a convoluted process in respect of the bill’s drafting, and it was unfortunate that the mistake was not identified by the Minister in the drafting process, especially when there are, as I have said, errors occurring in versions 22 and 23 of a Supplementary Order Paper. I feel sure that the Parliamentary Counsel Office has a pretty formidable reputation, as do our immigration officials, I know, having worked with them for some years in combing very, very carefully through legislation.

I do not have the legislative history of others, but where a Supplementary Order Paper has various chapters, or shall we say various versions, and we go to versions 22 and 23, I would have thought that somewhere down the track the Minister, having read 22 previous versions, might have picked up on that error. I would have thought so. But as the Minister in the chair, the Hon Christopher Finlayson, has said again with a great deal of grace and honour, as the person who is trying to shepherd this omission through Parliament, these things do happen. Even though I am a South Islander, I tell the Minister that I remember L V Martin with some interest, and I remember his slogan, as the Minister pointed out. But, again, I would be interested if the Minister would take a call—

💬 Hon Darren Hughes: Uncanny resemblance, really, with the Minister.

I would never say that; that would be deeply unkind and offensive—

💬 Hon Darren Hughes: Why? They’re both successful.

—to L V Martin! I would be very interested if the Minister would get up and give us a quick burst, perhaps, on how he would change, or recommend changes to, the drafting process. I think we have to go through the parliamentary stages, but we would hate to get through this stage and pass this bill, and then come back after Easter in urgency again to perhaps correct another error. So I ask the Minister, on this A3-paged bill, whether he could just reinforce to the Committee that we will not be back here in urgency the week after next to correct another error—perhaps a spelling mistake, a date, a clause, a number, or, I do not know, the grade of paper the bill is printed on. Who knows? But we do not want to be back here again. I feel confident, now that we have a competent Minister in the chair, that he will give us such assurances, and we will not be back here to deal with such minutiae again. I look forward to it, and invite him, if he would be so gracious, to elucidate on those points.

I would like to follow up Darien Fenton’s point, which I think is relevant to the bill. If we look at section 474, which a mistake was made about and which this bill corrects, we see that it talks about publishing immigration instructions and giving general instructions. A lot of immigration is put into effect not through direct legislation but through regulation, like published instructions. We had the example that Darien Fenton mentioned, of giving easy access to New Zealand and residency to those who are retirees. The category that Darien Fenton was I think rightly concerned about was for those who effectively buy their way in, through having pots of money. They probably can do a bit of a money-go-round when they get here. Whether they actually invest in the future of our country is always a bit doubtful, because there are always ways of shuffling money around in between countries, and whatever.

But without getting into that detail, I ask what the underlying principle is. Should people come here to be genuine New Zealanders, or just as people who are buying their way in because they happen to have a lot more money than someone else? Then there is the other aspect of that, in terms of the demography of New Zealand. Do we need the piles—

The CHAIRPERSON (Eric Roy): Come into this debate.

This is related to section 474(4)(a) and (b): the implementing of general instructions, in particular. Do we need a whole lot of older people, or is there a greater need, if we are to redress the problem of too many older people in the population, to put the emphasis more on younger people?

That being said, of course, the Green Party is very much in favour of family completion, and regulations in that respect—whether the people coming in to complete the family are old or young, or brothers or sisters, or whatever. We are very much in favour of that, and we do not want that confused with people buying their way in just because they have tons of money. It has not really worked in New Zealand’s benefit in the other ways it has been tried, and I do not think it will work in terms of allowing retired people with pots of money to come and settle just because of that fact.

I would not want honourable members to think I have an unhealthy obsession with the machinery provisions of bills, but I thought Mr Cosgrove made a very helpful contribution. He identified exactly what the problem was in the legislation, which is what happens, perhaps, when we have overly prescriptive provisions in transitional arrangements or commencement clauses.

One of the issues I will look at from a legislative point of view—and I am getting away from the particular bill before the Committee—is whether things can be streamlined, because quite frankly it is not overly satisfactory that we have had to deal with this matter in this way. So from the point of view of an Attorney-General, with responsibility for the Parliamentary Counsel Office, I tell members that I will talk to a few people to make sure that it does not happen again.

I rise to take a reasonably brief call during the Committee stage of this Immigration Act 2009 Amendment Bill. I am motivated to do so because I had hoped that the Māori Party might take a call during the Committee stage. The member for Te Tai Tonga, Rahui Katene, spoke very eloquently during the first reading of the bill, and I thought we might hear from the member for Te Tai Tokerau, Hone Harawira, during the Committee stage. Clause 1, in the clause by clause analysis, refers to the change in the title clause taking place to ensure that that clause explicitly refers to the Act in which the enactment originally occurred—in other words, it will enable the bill to do what Parliament thought it had done in the first place. I thought that the member for Te Tai Tokerau might have had a view on making sure that laws did exactly what he thought they would do at the time they were passed by Parliament—

💬 Hone Harawira: Steal Māori land.

—in respect of the foreshore and seabed legislation, or the provisions that were going to be referred to in the news today. The member refers to stealing land, by way of interjection, yet I do not think that the legislation that will come to the House will explicitly refer to the remedy he seeks. So I will be very interested to hear from him, and I would like him to make a contribution to the Committee of the whole House about how legislation can explicitly refer, as the clause by clause analysis says, to clause 1, in respect of that. He had quite a lot to say on the television news tonight, and I am hoping he will share with the Committee of the whole House his views on that.

That point I am making goes to the heart of the mistakes that are made in legislation. The member opposite thinks that major mistakes were made; he is looking for remedies. This bill is a remedy for a particular mistake that the self-described maestro of New Zealand politics, the Hon Jonathan Coleman, managed to bring through with this bill. But tonight is a night for congratulating Mr Coleman. He has a new child; we are all very happy for him in that respect and we wish him well, and that is why we are happy that the bill has been handed over to the Attorney-General. It is a good night for Jonathan Coleman.

But that analysis of clause 1 refers to that, so I hope that once I have finished my remarks, Hone Harawira will speak to us about that. There will be a lot of people waiting to hear what he has to say about it, I am sure. I am certainly one.

💬 Hone Harawira: Ha, ha! Guaranteed.

That is good. If he had said no, I would have pointed out that this is one of those fortnightly Wednesdays that is pay day, and he should get to his feet and explain what his views are on that. It seemed to me that there was a slightly different position tonight between that proposed by Government MP Hone Harawira, who is member of the National-Māori-ACT Government, and what the Ministers were proposing, in respect of that law.

I have a question for the Attorney-General, who is standing in tonight for the Minister of Immigration, and it goes to that correction to section 474. The aide-mémoire refers to the certification of immigration consultants under section 22(1), and that they can thereby be classified under section 23(1), and I wonder whether the Minister can explain to us exactly—well, not exactly; that is unfair on him—

💬 Hon Clayton Cosgrove: No, no—exactly.

No, he is prescient, but even this close to Easter the Minister is not quite prescient in that respect; by Sunday, of course, he will have the answer to everything. But I ask whether he could explain to us exactly what instructions will be classified differently as a result of this reference, because the bill itself does not make that clear. Even the aide-mémoire, although it refers to what will happen mechanically, does not go through the issues of substance in terms of the legislation.

My second question to the Hon Christopher Finlayson is about the appointment of tribunal members, which I understand was the subject of the mistake made between versions 22 and 23, as referred to by Mr Cosgrove. A mistake was picked up there, and it referred to the tribunal members. I wonder whether the Minister could tell the Committee, just for our own interest, to what extent work has been done to begin to appoint those tribunal members. Was the mistake discovered because tribunal members were about to be appointed?

In other words, has it been decided who the tribunal members will be, or has it pretty much been decided who they will be? How far down the road has that process, through the Cabinet appointments and honours committee, travelled? We certainly do not need to know names; we are not on a fishing expedition for that. We are almost certain that an appointment could be part of the severance package for the Rt Hon James Brendan Bolger, but we are not sure about that. I certainly hope the severance package is much more generous than that, because he has worked hard for our country and deserves it. But now that the Minister has told us how much work has gone on with regard to those appointments, I would like to know, if we passed this law tonight and we specifically did not give a commencement date this time, when they would be made. Jonathan Coleman made us give a date last time and he was wrong about that, so we are correcting it tonight. We are very happy to do that; there is support from the Labour Opposition in that regard. But when can we expect tribunal members to be appointed under this particular provision?

Those are the two questions I have. In addition I am waiting for Hone Harawira’s contribution, which I am anticipating will take place now.