COVID-19 Public Health Response (Validation of Managed Isolation and Quarantine Charges) Amendment Bill

The question is that clause 4 stand part. Honourable Simon Watts—not—

Oh well, not quite.

CHAIRPERSON (Hon Jacqui Dean): —yet. Simon Watts.

💬 Hon Member: It’s only a matter of time.

Only a matter of time. But, anyway, let’s not get distracted, because this is an important phase of committee. Look, thank you, Minister for—I’ll just wait, because I know he is occupied, probably getting a little bit of advice about some of the questions that he knows I’m going to ask, because there is a lot of depth in terms of some of this.

Look, I want to have a conversation. I want to get a few answers. I’ve got a good eight or 10 questions here that I want to go through this morning, so I’ll do that in a couple of phases.

But in terms of the next aspect, I would like the Minister to clarify exactly how many people are affected and impacted by this change, and just articulate the manner in which, as an Opposition, we can be confident that the numbers that have been quoted today are accurate and are substantiated. I don’t think I got much confidence this morning in what was probably a 3½-second quote in terms of the number and what sounded to me like an estimate, and the fact that we’ve had 21 days, give or take, since this issue was identified to get to where we are today. I’d really appreciate it if the Minister could give us a little bit more background around that.

The second aspect that I’d like the Minister to provide some clarity on is this. My colleague, in front, Dr Shane Reti mentioned, when looking at the departmental disclosure statement, there’s a heck of a lot of gaps in terms of transparency, disclosure, and information. So what I’m interested in particularly, on the basis that we’ve unlawfully taken about $3 million off Australians as a result of this mistake in legislation, is what advice, if any, has the Minister had from Crown Law in regards to this. I’d appreciate it if he could share the responses to those questions, and then I’ll be back with more.

In answer to the latter part of the question: yes, I have had advice from Crown Law, and the only person that can share that is the Attorney-General. That’s the standard practice if we’re releasing advice that’s privileged—only the Attorney-General can do that—but, yes, we have received advice.

In terms of the number of people that could be affected, it is difficult to calculate because it would very much depend on the circumstances of each individual. Someone might have come into the country and have not paid a fee, so that will account for the majority of people who have come from Australia to New Zealand during the time in the question. Some will have come as a health worker, and they would have had to pay a lower fee. Some will have come as an essential worker and they would have had to pay a higher fee. Those are consistent with the fee-making decisions that the Government is talking about which fees apply to people.

Just to the very rough numbers that I have been given: about 4,600 Australian citizens have travelled to New Zealand during that time. The vast majority of those were normally resident in New Zealand, so therefore would not be covered by this. Around 1,700 Australian citizens applied for a border exemption. The advice that I’ve had based on the estimates, and, again, I just want to be clear that these are estimates, because without going through every individual application and then trying to identify exactly what has happened, it could be around 600—so 650 people. That sort of range is the number of people who could be affected.

Thank you, I appreciate that answer. I think I heard the Minister say that there were around 4,600 Australians who had travelled to New Zealand at that time, many of whom were “normally resident”. Now, if one looks at the Immigration New Zealand website for the special circumstances that apply to Australian citizens, they are granted a residence visa on arrival, but I’m pretty sure it also says that when they leave, the residence visa lapses. So if they have not gained New Zealand citizenship and they leave the country under the residence visa that’s granted, then they’re no longer New Zealand residents.

So your comment about “normally resident in New Zealand” is true, but from their visa status perspective, if we do this belts and braces correction, then anybody that you thought wasn’t eligible to pay for the fee because they were normally resident in New Zealand may be captured by the net of this legislative change. So it would be helpful for us to get some clarification on that—and I understand the Minister is getting some advice at the moment.

I do have a really, really important second question about process and a suggestion—and the Minister is back in, so I will give that second question. I think the process was that anybody who was given permission to come into New Zealand during this period was issued what was known as a critical purpose visitor visa, and that visa, for some, contained work rights—so it was a bit of an oxymoron, I think, that it would be called a visitor visa but it had work rights—and that would include Australians, who would not normally have to apply for a visa before departing in almost all circumstances but would be given a visa on arrival, and that was the residence visa that we’re having problems with.

Wouldn’t an easier way to have fixed this to simply have been to amend the regulation as to timing—the person’s visa status at the time the critical purpose visitor visa was issued—and amend that criteria then? Effectively, what we’re saying is that they’re not residents until they arrive, then they’re residents, and they get that status in the few minutes between picking up their bag and going to the car that’s taking them to managed isolation and quarantine. It seems like an odd window, and wouldn’t a better way to have fixed this simply to have been to change the definition of persons in respect of whom charges are payable by simply putting in a timing clause, rather than a status clause? That timing clause would’ve been the timing of the issuance of the permission to enter, which was the critical purpose visitor visa.

I think both of the questions the member asks are interrelated to one another and they turn on the same point. The issue is not so much how people are treated under immigration law but how they’re treated by the regulations. So the intention behind the regulations was that if someone had been living in New Zealand and had left and gone back to Australia and then come back to New Zealand, they would be treated as if they were ordinarily resident in New Zealand. Therefore, they should be treated that way, depending on what conditions they came back in. So someone who was coming back for a short period of time may have been charged; someone who was coming back to stay probably wouldn’t have been charged. The intention was that for people who were coming from Australia as a health worker or as a critical worker, they should be charged.

That’s the way the regulations were intended, that is the way that they have been applied, and the issue is then the inconsistency between the law and the regulations around the way that the visas convert on arrival. So the reason for bringing a bill rather than simply changing the regulations is in keeping with longstanding practice. Where the Government is validating something that has already happened, it is done by Parliament, not by Order in Council.

I appreciate that and I understand the intent, but we cannot ignore what actually happens. The term “normally resident in New Zealand”, as I understand it, is not one that’s used in our immigration framework. For an Australian who departs New Zealand having been here over a period of time, the fundamental question that I have is: do they lose their New Zealand residence, and, if they do, what stops them from being caught in that net when the Government has said, effectively, “We want to treat Australians who have been here and who are normally resident in New Zealand in the same way that we would treat New Zealand residents and New Zealand citizens,”—so we don’t charge them for coming back—“but we do want to charge Australian citizens and residents who come here for the first time who get residence on arrival. They should be charged the fees as persons under clause 6 of the regulation.”?

I understand the description the Minister has just made, but I’m still not clear whether their legal status puts them into the same class—that, effectively, being an Australian citizen with no New Zealand residence who is arriving into the country and could be captured by the change we’re about to make. I just want to get confidence that in our efforts to belts and braces the law for the people who the Government does want to charge and has charged, we’re not then unintentionally casting the net much wider to Australian citizens normally resident in New Zealand who lose their resident status if they had departed for a few months.

Just following on from my earlier questions, and I think the Hon Michael Woodhouse has actually raised some very important points, which I am interested also to hear a response from the Minister on, because obviously he’s considering that in a little bit of depth following those questions. The area that I want to explore is going back to my original question in which the Minister has articulated to us that he has received Crown Law advice. So I’m trying to get back to what was going on 21 days ago. What was going on which triggered this event? What was going on that actually brought this to the attention of the Government or officials?

What I’m seeking clarification from the Minister on is whether we did actually have people seeking refunds as a result of, potentially, they’ve done a little bit of research and worked out, “Actually, you know what? I don’t need to pay this amount of money because, you know what, it’s unlawfully being charged from me.” So what I’m interested in from the Minister is to articulate: was that actually the case—have we had anyone seeking refunds? Was that the trigger point that got this going, or was there another circumstance in which this was raised to our attention, and what were the processes and procedures that picked that aspect up?

The second question I’ve got—and I’ve got about three or four others after, but I’ll just keep doing it in this process—is that I did some quick calculations when I was sitting in the House here. I’m not too bad at adding up numbers. Managed isolation and quarantine is $3,100 for a person, and then there’s an additional $950, I think, for every additional adult, and then $475 per extra child. So when the Minister was estimating in the region of 600 to 650, and I know he’s provided some additional numbers there, and this seems to still be an estimate, and I think I’m still surprised—why is it an estimate after 21 days of consideration? We still can’t nail exactly what this number is. Considering we’ve got robust processes and systems—I mean, that’s what we’re being told in this House when we actually have an opportunity to question officials, the Minister, and the director-general around our COVID-19 response, which, I must say, doesn’t occur very often, but we’re doing our damned best to get answers.

So if you can articulate: what is the quantum of the fees that are potentially, in effect, being invoiced but are at risk of collection without making this change in legislation? I think, as we heard in the Budget yesterday in terms of the challenges around who gets what in terms of allocation of funding, if my calculation was correct and this is in the region of $3 million, that’s a heck of a lot of money. It’s a heck of a lot of money for the people on the North Shore that sit in my electorate. It’s a heck of a lot of money for a lot of Kiwis. What this comes back to, I think—and I’ll cover it in a couple of the questions I’ll ask in the next phase—is, once again, we’re making up and spending our time here on a Friday morning in urgency to fix mistakes of poorly drafted legislation. If there’s anything that can be taken from this, there is a learning here that, you know—get it right first time. So I look forward to hearing the response from the Minister on those questions.

I don’t want to labour the point—and I’m not sure if there’s still a consideration of the question that I have raised under way—but I refer the Minister to the Immigration New Zealand website for Australian residents and citizens. This is not related to COVID. This is the business-as-usual sort of advice that we give to Australians: the length of stay is indefinite, you can visit, live, work, and study in New Zealand, and you can travel to New Zealand without first applying for a visa, as long as you meet the character and entry permission requirements. Of course, that changed with the critical worker visa last year, but it’s back to that now.

Things to note: you can only apply for this visa when you arrive in New Zealand. You can’t apply for it before you travel, and here is the key: if you leave, your New Zealand residence visa will expire. You can apply for a variation of travel conditions to allow you to travel without affecting your New Zealand residence status, but it’s my understanding that most don’t do that. They don’t need to, because they just get it back on their return, and so they wouldn’t normally be thinking about this.

I understand that because of that policy, even longstanding Australian residents in New Zealand have a succession of: visa status as resident, and then not, when they leave. I may be wrong on that, but if I am not, then I’m still not confident that in our efforts to fix a problem for newly arriving Australians, we aren’t casting the net wider than that to include the potentially several thousand Australians normally resident here who left and then came back during this period.

Quickly, to run through some of those questions, working backwards for them. In terms of newly arriving Australians, I think the member answered his question himself earlier on—that quarantine-free travel largely avoids that issue unless there is a prolonged and significant delay to it.

In terms of the Immigration New Zealand website, as I indicated to the member before, it’s not so much an issue with immigration law. It’s the way the regulations interact with the immigration law that has been the problem.

In terms of how much this could be, as I’ve indicated before, without going through and addressing the records of every one of those individual people who has come from Australia and who could have been invoiced, my advice is that it could be anything in the vicinity of $1.5 million to $3.5 million, is roughly the range we could be talking about here. But those numbers are very approximate.

Has anyone asked for a refund? I’ve not been advised of that. When did I first find out about it: it was about three weeks ago in one of my regular meetings with the team at managed isolation and quarantine (MIQ). They have been doing quite significant fees reviews of the way the fees-charging regime is applied in MIQ, and my understanding is that this arose as a potential issue with that work that they have been doing, bearing in mind that the fees regime was established in a hurry back in August of last year.

I just want to thank the Minister for providing a response on my questions. I appreciate that. That brings me now to a follow-up question which I have and I’m referring to the departmental disclosure statement, page 7 and section 3.6. The question here is, “Has this bill had any external consultation on the policy to be given effect to the bill or the draft of the bill?” and the answer is no, and then it articulates below, actually, “Consultation has taken place with relevant Government agencies.”, which I’m conflicted—I mean, is it “No” or “Yes” in terms of that word?

I want a little bit of clarity from the Minister: what is the degree, if any, of consultation that has been going on in regards to this piece of legislation? Specifically, what departments have been engaged, and, in particular, because we’re dealing with our good friends across the Tasman in Australia, what conversations and dialogue have occurred at the Ministry of Foreign Affairs and Trade with our colleagues, our good friends, those members across the Tasman with which we have a special relationship? What conversations have been had at ministry and official level, particularly by the Ministry of Foreign Affairs and Trade, with those entities around this issue? You know, as the Minister has just articulated, it’s in the region of $1.5 million to $3.5 million, and we don’t baulk at those numbers; that’s a heck of a lot of money. I think, you know, in keeping with our close relationship with Australia, I would have expected at least a little bit of dialogue around “You know what, guys? We’ve made a mistake again—not the first time, but, you know, we’ve made a mistake. You know, this is how it’s going to look.” and at least getting their feedback in terms of consultation around what they consider.

So those are two questions I’d appreciate a little bit of clarity from the Minister on, and then I’ve got only a couple more after that.

Thank you, Madam Chair. I’m going to continue this line around “normally resident”, because I worry that we’ve got to get the black-letter law right. “Normally resident” is a nomenclature that’s used, but not in this legislation or, actually, in immigration legislation. We use it in places like for the Overseas Investment Act—“ordinarily resident”. We talk about it in the Income Tax Act and IRD policy on who is a tax resident. So there is a variety of different definitions of normally or ordinarily resident in New Zealand, but that doesn’t necessarily relate to their legal residency status.

So I go back to that fundamental question, because, as I said, neither of the COVID-19 Acts actually talk about “normally resident”; they talk about “residents”. “Residents” has a legal status in accordance with the Immigration Act 2009. The Minister was sort of saying “Oh, well, ‘residents’ is fine, but we don’t apply it to ‘normally resident’. We don’t apply the charge to ‘normally resident’.”, but that’s not what the law says, and there is no legal definition of “normally resident”. So, given that we are fixing a mistake of wording, we’ve got to make absolutely sure we get the wording right.

Just very quickly, in terms of who was consulted—was the Australian Government consulted? No, we didn’t discuss this with the—well, I certainly didn’t discuss it with the Australian Government. In terms of departmental agencies, it would be all those who were relevant to be involved in that. In terms of managed isolation and quarantine (MIQ), it’s the Ministry of Business, Innovation and Employment—the MIQ team there, the immigration team there. Various Crown Law will have been involved. The Treasury, of course, will have been involved, given the budgetary issues involved in that.