Immigration (COVID-19 Response) Amendment Bill

Thank you, Mr Chairman. Because of the nature of the select committee process, Supplementary Order Paper 504 was actually recommended by the select committee, so it naturally is an outstanding piece of work which bears no need for improvement. But what I want to do is set out in the committee of the whole House some concerns that I have and that the submitters had around the balance of powers that the Minister of Immigration has and articulate the reassurance that we had through the officials about how they would be used.

Now, as I know probably more than most in this House, the Immigration Act provides some very strong powers of the use of discretion and also, when decisions are made, for the reasons for those decisions not to be disclosed. That’s appropriate when well used, and the examples are almost always cases where an application is provided to the Minister, or his or her associate, for the grant of something that does not normally apply under the law or immigration instructions—and that’s an appropriate thing—and the Minister is asked to do more than would otherwise be the case. It might be somebody unlawfully in the country who’s having that process normalised by the grant of residence under section 61, or the grant of a visa under section 61, but if indeed the Minister does not want to extend that, then that is at his or her absolute discretion—no need to give any reasons.

Now, what we’ve done here is put in a third limb that I and my colleagues felt was, combined, very, very concerning, and that is the possibility that the Minister could provide a change—an amendment or revocation of visa rights—to a whole class of people and then not give reasons, and that could be done at the Minister’s absolute discretion. Now, because that had the potential to negatively affect that class of people, we in the select committee were looking for some kind of backstop provision that said that that wouldn’t be the case and there wouldn’t be a negative impact on a class of people. Because we understand what the Government is trying to do, and we know that, by and large, it’s actually going to be very good for the visa holders—unless they’re offshore, but that’s another issue. So we wanted some kind of backstop in.

Now, we did get halfway there because of the words being used—I think it’s “not materially negatively affected”, and that was enough for me to still be uncomfortable but, certainly, to support it. The examples given by officials I think were interesting in the sense that they were talking about things like the requirement to undergo health issues under the Health Act. Well, I don’t see that as a negative—it might be a condition, but that doesn’t necessarily mean it’s a negative issue. So they couldn’t really come up with an example of where a utilitarian approach where there would have nevertheless been a negative impact was, sort of, satisfactory.

I just want to lay out that thinking, because what we got was an assurance—or a commitment, at least—that this would be used for good. It was a very kind of comic book - type comment from the officials: “These are powers that will be used for good.” That was literally what they said. And I believe that that’s the intent, but I am concerned that the black letter law, with these three legs, could be negatively affected—absolute discretion and the Minister doesn’t have to give a reason is a pretty risky combination. So we’ve received those assurances through the Ministry of Business, Innovation and Employment’s immigration team, and I believe them. I know them well; they’re good people. But I just want to put on record that that was a concern of the committee.

The last thing I would say, and it’s for the submitters particularly from the ADLS, the immigration and refugee protection division of the Auckland District Law Society, who were worried and suggested that there should be a purpose statement to the bill. While we were guided in a slightly different direction, I want to just acknowledge that as far as possible, we understand what the purpose of this bill is to do—obviously, administrative efficiency, while not negatively affecting classes of visa holders. While we didn’t get that purpose statement, I think we have made the bill better thanks to their submissions, and I just want to thank them for that.

The question was put that the amendments set out on Supplementary Order Paper 504 in the name of the Hon Iain Lees-Galloway be agreed to.

Amendments agreed to.

Parts 1 and 2, Schedules 1 and 2, and clauses 1 to 3 as amended agreed to.

House resumed.

The Chairperson reported the Immigration (COVID-19 Response) Amendment Bill with amendment.

Report adopted.

Third Reading