Immigration Amendment Bill

We come to the debate on Part 2, which is clauses 16 and 17 and schedules 1 and 2.

I want to take a very short call on what is a very short part, which should not require too much detailed debate, given that the substantive effect that this is giving agreement to has already been addressed in Part 1. But I do want to take the opportunity to address some of the comments made by members Logie and Cunliffe in respect of how the detention provisions, the warrants to which Part 2 refers, are in some way a breach of the New Zealand Bill of Rights Act. Ms Logie mentioned that they were also contrary to the Human Rights Act and the refugee convention. I think Mr Cunliffe mentioned the heinous or egregious breach of the New Zealand Bill of Rights Act, which I find rather interesting, because, of course, the Attorney-General is required to make such a comment if, indeed, it is felt by the finest legal minds in the nation that that were the case.

In pointing this out, I am under no illusions that I am going to change the minds of Ms Logie and Mr Cunliffe—a mind of sanctimony is a hard one to change. But indeed the Attorney-General, having given very, very careful consideration to whether the Immigration Amendment Bill did breach the New Zealand Bill of Rights Act, as he is required to under section 7 of that Act, did not do so, nor did the justice officials, nor did any of the other officials supplying the information to the Transport and Industrial Relations Committee. What Mr Cunliffe is saying is that he knows better than the finest legal minds in the country. He knows better than all of them.

I do not think anybody could say that Mr Finlayson is anything other than straight up and down the line when it comes to his obligations under section 7 of the New Zealand Bill of Rights Act. And yet he, having taken the best advice and having looked at this bill in its entirety, decided that it was not a breach. Indeed when the bill was reviewed, the Ministry of Justice pointed out that detention is not and does not become arbitrary. A District Court judge has to be satisfied that detention is necessary. It enables the judge to issue a warrant for a shorter period of time than sought, or to revert—and I think this was a recommendation of the committee—back to an individual warrant of commitment when the judge is not satisfied that a group warrant is necessary.

So I utterly reject the members’ supposition, and all the shaking of the heads is not going to change that. And certainly I do not expect I will change Ms Logie’s mind, because I rely on better legal advice than the skewed opinion of Ms Logie and certainly Mr Cunliffe, who I believe is a lawyer and should know better. This—

💬 Hon Judith Collins: No, he’s not. He’s not a lawyer.

He is not? Well, thank goodness for that. At least he has got some out because that would be a bit of a travesty on the legal profession if that was the extent of his legal knowledge. This is not a breach of the New Zealand Bill of Rights Act. This is not a breach of any of those conventions that this Government takes extremely seriously.

I want to make a contribution to Part 2, but I start by responding to the Minister of Immigration. I find it very interesting that he thinks he knows better than the United Nations High Commissioner for Refugees, the Human Rights Commission, various refugee organisations, and a range of people who came to the Transport and Industrial Relations Committee and opposed this Immigration Amendment Bill very strenuously and who have been ignored, as we expected they would be, and, sadly, as they expected they would be as well. Whether or not it is a breach of the convention no doubt will be tested in time. I look forward to that occasion, and to that Minister having to front up in international fora and justify this bill.

Part 2 deals with just one issue really, which is changing one of the forms from the Immigration Act 2009 to deal with supplying a warrant for mass arrivals. I wanted to go over the issue of mass arrivals and the definition of “mass arrivals” again. If we go right back to the very beginning of this bill, the justification for it was, as included in the regulatory impact statement, that a mass arrival for the purpose of this bill: “means an arrival: by a substantial group of people (by sea or air)”. Then it went on to talk about assumptions around the bill that were made in the regulatory impact statement, including that “500 people would be involved in a mass arrival”. This was when it first came to Parliament. It was over a year ago, and it was around about the time when there had been a steel-hulled vessel arrive in Canada with 500 people in it. That sent our Ministers into overdrive to find an excuse to introduce this bill to cover up for the cabbage boat issue that was happening at the time. It was coming down the river or going up the river—I cannot remember exactly what it was.

Then when the bill actually arrived in front of the Parliament the mass arrival that is referred to in the warrant was 11 people. That does not constitute a substantial group of people arriving by sea or air—11 people. That is ridiculous. It is a joke. Surely it is a joke. A mass arrival is 11 people! New Zealand, under this bill, could not cope with 11 people arriving by boat or by air and claiming asylum, when we actually cope every year with something like 300 asylum seekers who come by plane. So that was crazy, and then we moved on to the last part of the joke, which was Peter Dunne proposing, which has just been passed in Part 1, that the mass arrival definition be moved to 30. Now what we are saying in the bill—

The CHAIRPERSON (Eric Roy): Order! I am listening very carefully, and Part 2 is about consequential amendments. I am just waiting for the member to draw this debate in to the subject matter of Part 2.

I raise a point of order, Mr Chairperson. Perhaps you can help me with this, because the Minister of Immigration started off the debate with a fairly wide-ranging discussion on Part 2.

💬 David Bennett: No, he didn’t.

He did. I am concentrating on mass arrivals, which is what the warrant is about, so I thought that, actually, I was addressing Part 2 in a way that the Minister had not.

The CHAIRPERSON (Eric Roy): I was kicking his shin under the table. Look, let us not try to justify where we are. We will try to keep this debate focused on Part 2.

OK. Well, I am concentrating on the warrant, which is in Part 2. If you read the bill, everybody, you will see that the schedules are about altering the warrant that applies to a mass arrival. That is the major amendment here. That is what I have been talking about—mass arrivals; what is a mass arrival. Under this bill it started at 500, then it went to 11, and now it is 30. It is really confusing.

💬 Dr Rajen Prasad: When is a boat a boat?

Well, when is a mass arrival a mass arrival? Is it 500? No, obviously not—obviously not. In the meantime we have all sorts of other mass arrivals, if I may say so, and I wanted to mention them—in particular, a mass arrival of something like 1,000 workers being employed by Weta Digital, overseas workers—

The CHAIRPERSON (Eric Roy): Oh no, look—[Interruption] Order! [Interruption] Order! Come on. The member is drawing an extremely long bow, and the changing of a form under the consequential amendments is—the member has gotten outside the scope of what Part 2 is. So I just remind her and ask her to come back.

OK, well, I will come back to mass arrivals, if I may, because that is the major change in the form in schedule 2. The only reason we have got schedule 2 is that we have a bill that deals with mass arrivals, and form 5 is the “Warrant of commitment (mass arrival warrant)”. The whole reason that we have this form in schedule 2 is that we have a bill that describes what a mass arrival is. I go back to my earlier point that I am still very, very unclear about the original justification.

I confess that I was looking to hear what Darien Fenton was going to say. She was on the cusp of really, kind of, getting to the grips of what the mass arrival issue was. That is something that has been troubling me, just how it will be defined. I hope she has another opportunity in the debate to further expound on it because this is an important debate.

I made the point in Part 1, so I will not labour it now, that this Immigration Amendment Bill is attempting to distract from the scandals in the Government. I guess I want to carry that on in so far as in Part 2 we actually have the practical application of that. We have the consequential amendments in Part 2, which give effect to things through other legislation. If we imagined for a minute that some of those things were different in Part 2, we would get to a different outcome. We would actually get a bit more chaos if the consequential amendments were not followed through. Arguably, that would actually be a better outcome than having a consequential amendment that reflected the legislation, because this is such a poor piece of legislation—it is such a poor piece of legislation.

We see, for example, that the amendment to section 116 states: “in the case of a person detained under a mass arrival warrant … section 317B”. If that number was wrong, then this legislation would not be able to be enacted in the same way. I am interested in whether the Minister of Immigration will get to his feet to suggest otherwise, because these amendments in here—for example in section 117, to replace the word “earlier” with “earliest”—put a different emphasis in the legislation. This is all designed to ensure that this legislation is effective when it is put in place. We in the Labour Party think this is a bad piece of legislation. It seems that the actual best outcome would be for Part 2 to be ineffectual because that would lead to a fairer and better outcome.

There are plenty of opportunities. My colleague Darien Fenton’s Supplementary Order Paper 244 would see people referred to a refugee centre—the current arrangement that is in place—and a much more humane way of dealing with the issue, rather than the hysteria being cranked up by this Minister, following others in his caucus, in order to distract from the real issues in the country.

This is a Government that is propped up by support parties that are troubled—one that is in court at the moment, one that is being stepped back from a ministerial post, and another party that is squabbling amongst itself about who is leader. We have a mess in the Government—and, of course, there was Aaron Gilmore, who has just gone. This is a Government that is struggling, so we see it prioritising legislation that is actually not good for New Zealand. [Interruption] Government members across there do not like it. You can hear them interjecting because they know it is true. I would be embarrassed, too. If you look across there, you will see some red faces on some of those backbenchers. They are embarrassed about this legislation. They are embarrassed about Part 2. They know what will happen when Part 2 gets enacted. They know that they sign their names to this kind of legislation—this kind of knee-jerk response—that is actually not good for our country and is not good for our reputation as a humane and hospitable place where refugees are treated with respect and integrated into the culture. To those people across the Chamber there, I tell them that this is a bit of a day of shame. This is John Key’s attempt to channel John Howard with a bill that politicises the treatment of refugees and asylum seekers. It is divisive, it is destructive, and it does nothing to address the real issue.

We have got to ask ourselves what has changed. What has changed? In 2011 John Key said that New Zealand was ready to deal with a boatload of asylum seekers—ready should one make it to our waters—and he knew that was never going to happen. What has changed since 2011, apart from John Key’s plummeting popularity? That is why Government members are exercised over there. They know that John Key is becoming unpopular, because this kind of knee-jerk reaction—this kind of knee-jerk legislation—is the only thing that is going through the House. There is actually not anything that is qualitatively changing things. We know this Government has got the worst economic record in 50 years, and there is no legislation being progressed to address that very important issue. Government members know it is true—across the Chamber they know it is true—and that is why they are exercised. That is why they are embarrassed about this legislation.

John Key said: “Look, we’ve upgraded our operating manual. We can deal with this immigration issue. We’re confident we understand our legal position.” Well, something has changed since—something has changed since—and it is the popularity of the Government. That is why this legislation is being pushed through—to try to distract from the real issues.

I want to make a contribution about where the debate is going. Just because the Immigration Amendment Bill mentions mass arrivals—the debate is about the consequential effects of clauses 16 and 17—it does not open up a whole debate about mass arrivals. Part 2 is about consequential amendments.

In speaking to Part 2 of the Immigration Amendment Bill, I do want to speak to the issue about the form that is actually in schedule 2, which is referred to in Part 2. There is now a new form in this country. How good do we feel about this as New Zealanders that the Government has had to create a new form? It is called “Form 5” in this legislation. The title of this new piece of bureaucracy that we in New Zealand should all feel so proud about is “Warrant of commitment (mass arrival warrant)”. What a fabulous new form that is for New Zealand to have, and what a fabulous new form that is for New Zealand’s international reputation. We will have a new form, a new piece of bureaucracy, which can be filled out to issue a warrant about mass arrivals.

I note that this new form—which is quite hard to describe to the public because it is in front of us in writing—starts off saying that the form is “To every constable”, and it names the constable, and “To manager(s)”. It says that the form is going to go “To Person(s) in charge of [specified premises]”. The next part is the part that really interests me, because it says that they are going to be required to put down the names of the people who are going to be detained—the names. Remember that when the Government first proposed this piece of legislation a mass arrival was going to be 500 people. So the names of 500 people were going to be written on this form before it could it actually be lodged. But then the Government decided “Oh no, not 500, that’s not a mass arrival. It’s only 30.” But by the time we get down to this form, which is actually in the schedule attached to Part 2, we know that they have only to come up with more than 10 names before this particular form can be validated—more than 10 names.

That reminds me of a Get Smart skit. I do not know whether people remember Get Smart, but it used to have an ongoing gag that Maxwell Smart when he was cornered would say “Would you believe the entire building is surrounded by the FBI?”, and, of course, the baddies would go “Nah, don’t believe that.”; and he would go “Well, would you believe that the boy scouts have got the building surrounded?”; and they would go “Nah, don’t believe that.”; “Would you believe my grandmother’s outside?”; “Nah, don’t believe that.” Well, that is what has happened with this bill. The Government started out with a big scary concept of 500 people coming in this mass arrival, and we were going to have 500 names on this form in schedule 2 under Part 2—500 names the authorities were going to have to come up with before they could issue this form. What has it scaled down to? Apparently, this big scary mass arrival is going to be 10 or more people—or is it more than 10? It is more than 10—I am exaggerating, as I am prone to do. It is actually the names of 11 people that they will have to have down here. So, sorry for that gross exaggeration.

The point that I am trying to make is that we will now have a new form in our bureaucracy. That is what this is creating. It is just more bureaucratic form filling. Authorities will have to track down 11 people, whose names are going to have to go on this form before it can actually fit the definition under the legislation, and then they will have to fill out all the rest of this form in order to do what? Basically, it is in order to protect our shores from John Key’s ghost ships. That is what it is all about. It is all about ghost ships, as a distraction from all of the scandals that this Government has been involved in. Is it not surprising, the timing of our debating Part 2 today? The Government has another scandal on its hands and—hello, hello—what pops up on the Order Paper again but Part 2 of the Immigration Amendment Bill, the mechanism it has been using since last Christmas to distract us from any political problem that it has.

I will be very interested to know, in 1 or 2 years’ time, whether this form has ever seen the light of day. Has creating this form in this schedule been a complete and utter waste of time? Will it ever be used, Minister? Is there any situation that the Minister of Immigration can see where this form is going to be filled out with those 11 names?

I wish to begin by responding to the earlier intervention of the Minister of Immigration. The Minister was unclear in his comments as to whether or not, in fact, a full New Zealand Bill of Rights Act vet had been obtained from the Attorney-General. The Minister read to the Committee some words, by which the Attorney-General indicated he was not unhappy with certain processes in the Immigration Amendment Bill. I seek the Minister’s clarification as to whether that amounted to a full New Zealand Bill of Rights Act vet. If he does not have a signed New Zealand Bill of Rights Act vet, he should disclose that to the Committee. That is the first matter.

The second matter, in relation to your own intervention, Mr Chairman, is quite simple. It is that in debating the consequential amendments it is, in our view, necessary to go back to the principles that those amendments give effect to. Therefore, in the balance of my remarks I will stray somewhat towards the purpose of the bill.

I do so by firstly taking up the issue of the mass arrival group. There were amendments, which were rejected by the Committee in debate on the previous part, to extend the number. The issue of mass arrival is germane to this, and the consequential amendments, because it is simply highly unlikely that the country is going to face such a mass arrival. It would require a large vessel to navigate a very, very long distance in hostile and very difficult climatic waters to get to New Zealand. That would be a very, very unlikely thing, and that brings the Committee to the point of why we are debating this bill. It comes to the point that this bill is nothing more than a distraction—a distraction from the scandals and a distraction from the fraying of this Government’s majority.

💬 Hon Members: Oh!

The Government backbenchers can sit at the back and bray, but they know in their heart of hearts that the last couple of weeks have seen the beginning of the end of this Government. This is a Government that is teetering on the brink of losing its majority. How careless to lose a Minister; how much more careless to lose a member of Parliament. I will return back to the bill. You never know, the current MP for Ōhariu might find that he is a refugee in some other country before long. Perhaps he will be taking a boat back the other way and be deemed a mass arrival by members—perhaps a mass departure.

Why is there no reciprocal clause in this bill about mass departures? What is clear under this Government is that there has been a massive departure—something like 54,000 Kiwis to Australia in the last 12 months, an all-time record. But there is no clause in this bill to prevent mass departures. A Government that is exporting people as fast as the Key National Government is ought to be glad that a few people want to come to New Zealand, especially if they have had to weather the hardships of travel as boat people. We must not make light of a terrible human tragedy, and, obviously, nobody would find themselves by choice in the situation of being a boat person.

New Zealand has a very strong reputation in regard to upholding its obligations to the United Nations and the global community in respect of the refugee take. We have had bipartisan consensus for many years around the fact that we would take 700 to 800—I think usually 750—United Nations High Commissioner for Refugees quota refugees. We have maintained the highest standards in terms of having an asylum vetting system that has allowed us to uphold our international obligations. If it is the Government’s position that we will continue to do that, why did it vote against the honourable Darien Fenton’s Supplementary Order Papers, which actually required that in this law?

💬 Simon O’Connor: They’re amendments to Part 1.

Yes, they were amendments to Part 1, but these are consequential amendments that follow from that part. If it is the Government’s position that it will be abiding by international law, why was it unwilling to put provisions in this bill that undertook to do exactly that?

This is a shoddy piece of legislation, and, all House banter aside, it is one step further down the road of corroding the standards of New Zealand’s rights, New Zealand jurisprudence, and New Zealand’s civil liberties, which this Government is making a hallmark of in its second term as it stampedes towards electoral defeat and the torrid mess that will be known as the National caucus. I see the Minister of Justice there sharpening the knives already.

I move, That the question be now put.