Immigration (Mass Arrivals) Amendment Bill

I present a legislative statement on the Immigration (Mass Arrivals) Amendment Bill.

ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Immigration (Mass Arrivals) Amendment Bill be now read a first time. I nominate the Foreign Affairs, Defence and Trade Committee to consider the bill. At the appropriate time, I intend to move that the bill be reported to the House by 31 July, 2023.

This in an important piece of legislation that the House will commence consideration of today. It deals with the issue of the potential for a mass arrival in New Zealand, and the need for there to be an orderly and rights-compliant framework to deal with such a situation. Some of the issues that we will consider through the course of this bill are complex. They cut across our domestic and international obligations and New Zealand’s commitment to human rights.

I want to underscore, at the start of this debate, that New Zealand and the Government continue to consistently support the legal right for people to claim asylum in New Zealand, and we support the development and maintenance of systems and processes that enable us to handle these events in a way that is orderly and rights-compliant. There are complex issues around rights that are engaged in this area, and I do believe that it is important that the House and select committee processes consider the bill in a robust fashion.

Because of some of those issues, I have reached out to other parties around the House—as early as late last year—to commence a discussion around this legislation and the key issues within it, and I acknowledge other parties for their participation in that. It is apparent that parties in the House may take different views on the merits of the bill, but I do believe that it is an important one for there to be an open and constructive and balanced dialogue around.

People smuggling is a transnational crime that exposes vulnerable migrants to significant risks and generates large profits for the facilitators, who are some of the most unscrupulous people on the planet taking advantage of some of the most vulnerable people on the planet. People smuggling undermines the integrity of international borders and immigration systems, and mass arrivals events around the globe are commonly facilitated by people smugglers. A mass arrival event would not be in the best interests of New Zealand, but, most importantly, would not be in the best interests of the people who are being smuggled either.

This is an activity which exposes people to extreme risk and results in hundreds of people being killed on the seas every year. For New Zealand, this is a low-risk event. It has been rightly noted that we have not had a mass arrival maritime event in New Zealand previously, and it remains a low-risk event due to our geographical isolation. But it is not a no-risk event, and it is an extremely high-impact event. So it is the duty of the Government—and, I believe, the House—to ensure that we have a framework in place that enables us to handle such an event in a way that is orderly and that is rights-compliant.

Parliament first considered these matters about 10 years ago in the Immigration Amendment Act 2013, which some members in this House will be well familiar with. As well as defining a “mass arrival”, that legislation set out how Immigration New Zealand would respond to a potential mass arrival event. In a 2019 review of that legislation, officials identified that some of the key provisions in that legislation would not work as intended, and it was important to make sure that those issues were clarified through an amendment bill—which is what the House will be considering today. We do have international obligations to prevent and combat people smuggling, and to protect the rights of smuggled migrants.

It’s important to note a couple of things at the start of this debate. When we talk about a mass arrival event under the piece of primary legislation, we’re talking about a group of 30 people or more who arrive outside of the regular channels of migration. This bill does not concern people who might arrive in other channels—for example, someone who arrives on a plane and seeks asylum in New Zealand. It is purely about mass arrival events of 30 people or more. It is important to note that under the primary legislation, a key part of Immigration New Zealand’s response to such an event is the use of group warrants of commitment to effectively manage a group while processing, to be able to engage in security screening and health assessments.

It is important to note that detention is not envisaged to be an ongoing and long-term part of the way that we manage people who arrive in New Zealand through one of these events. It is a particular part of the process that enables things to proceed in an orderly fashion.

In terms of the three key areas that this bill addresses, the first—coming out of the 2019 review—identified the possibility that members of a mass arrival group are deemed to hold entry permission and a temporary entry class visa as a passenger on arrival to New Zealand. The first change in the bill removes that possibility. The review also identified that because a potential group arrives outside of regular channels of migration, there is ambiguity as to whether those people will have the ability to apply for an entry permission and a visa.

The second change in the bill clarifies that those people are indeed responsible for applying for an entry permission and visa, and it enables them to do so—and, in fact, deems that they have done so if they do not.

Finally, the third change in the bill. Immigration New Zealand and the courts currently have only 96 hours from the point at which an immigration officer makes a decision on an application for entry permission and a visa both to apply for a group warrant of commitment and for the application to be decided. In the Government’s view, this is not enough time for migrants to receive legal advice or to be meaningfully represented in court, particularly if we deal with a large event. A large event, for example, could be similar to the one that Canada experienced in 2010, in which close on 500 people arrived in a single event. It is very difficult to imagine our legal process being able to mobilise in a 96-hour period to ensure that those people had appropriate legal representation through a very significant legal process.

So the changes in the bill address all of those issues. They demonstrate our commitment to ensure that people do have appropriate legal representation and uphold their human rights, clarifies the legal status of members of a mass arrival group, and it will also improve New Zealand’s ability to manage the complexities of a mass arrival event.

In some of the debate which has preceded this reading in the House, much attention has focused on the third change in the bill and the set of rights issues that it does engage, because it does deal with matters relating to the detention of people who arrive in New Zealand. I do acknowledge that the bill does engage those rights issues around detention, and it’s important that they get good consideration in this debate in the House and through the select committee process.

But I do want to be very clear about a number of things. The first is that the ability to detain to manage these situations is there in the existing bill. The New Zealand Bill of Rights Act (NZ BORA) vet for the previous bill and for this bill both confirm that that detention—managed appropriately—is compliant with the New Zealand Bill of Rights Act. This has been very carefully worked through and considered, and I want to speak specifically to some of those points.

It is noted by officials from the Ministry of Justice, in the NZ BORA vet, that the fact that this is a judicially controlled process ensures that there are significant controls for the rights of the people concerned.

Immigration officers take a warrant to the court. Immigration officers are not the people who will make the decisions about detention of the individuals concerned; that will be overseen by a judge in the District Court. Ministry of Justice officials, in the NZ BORA vet, put a high degree of focus on the importance of that and in terms of ensuring rights compliance. They also note that under the legislation—this is a very important point—and this is section 313(2)(a), requires that a person detained under the section may only be detained “as long as necessary to achieve the purpose of the detention”.

So while the maximum possible period of detention is extended from the current four days, initially to seven days and up to a maximum of 28 days if the District Court judge deems that that is necessary for the purposes of having an orderly process, those are only maximums. And the legislation is very clear that detention should be for the minimum necessary period in order to achieve the purpose of that detention, which I have already identified.

The NZ BORA vet also notes that nothing in this legislation removes the ability of detainees themselves to use existing statutory options to challenge their ongoing detention. So their existing legal rights will remain to be able to test whether their detention has been made lawfully and nothing takes that away. Overall, the NZ BORA vet therefore concludes that the safeguards that are in place in the legislation—and I’m quoting directly here—“ensure that there are adequate barriers to detention being prolonged [beyond] what is necessary to deal with the circumstances of a mass arrival event.”

This is not the kind of piece of legislation that, as a Labour Minister, I have dreamed of bringing to this House. But the Government of the day has a responsibility to make sure that we have robust legislation to deal with these sorts of events. This is a lowprobability but high-impact event, and the best time to deal with these issues is before an event occurs.

Were we to have a mass arrival event, the issues that I have identified here would need to be dealt with at that time. That would occur in a less orderly way, it would be subject to scrutiny, and it would be in the white-hot spotlight of an intense political and public event. The responsible thing for this House to do is to have an orderly debate about this issue and establish a safe, robust, rights-compliant framework for dealing with a mass arrival event. That is what this bill does, and I commend it to the House.

The question is that the motion be agreed to.

Debate interrupted.