Immigration (Mass Arrivals) Amendment Bill

Members, we now come to Part 2. This is the debate on clauses 7 to 9, “Mass arrival warrants of commitment”. The question is that Part 2 stand part.

Thank you very much, Madam Chair, and good evening again to members of the committee of the whole House for this Part 2. Just briefly, if I may take a moment to outline the position of the Government in relation to this, the most substantive part within the bill, I do want to acknowledge the discussion that was had last night on some matters that touch on the substance of Part 2, including that of the Hon Phil Twyford, who has foreshadowed some proposed amendments that he’ll be making. But I also do want to take the opportunity to thank him for the support that he’s indicated will be forthcoming from Labour in relation to the bill overall on the basis that certain amendments are made.

These are reflected in the Government amendments put forward in the name of my colleague and friend the Hon Erica Stanford. Briefly stated, if I could simply summarise the content of Part 2 but including those changes, essentially, it’s that members of a mass arrival group, if detained without a warrant, would be accommodated in minimally restrictive detention for the least amount of time necessary to achieve the purpose of that detention. So one gets a sense, Madam Chair and committee members, that it’s aimed very much at doing what is needed but no more than is needed by way of detention as to time but also in the manner of that, and it is setting out explicitly that the nature of the detention wouldn’t be in the nature of a prison cell or remand facilities, and so forth.

I do just want to acknowledge some of the engagement that’s been had with the forced migration sector, as they are self-described, and I referenced that yesterday in response to a contribution of Ricardo Menéndez March’s, who asked, I think quite reasonably, what interaction there had been on the substance of the bill. I referred to this letter that had been put forward, and I’d just state now in a bit more detailed fashion in relation to the provisions of Part 2 that it was expressing support for the four additional safeguards that have been put forward in a Cabinet paper published last year and a small number of additional amendments. I’ve, effectively, referred to those, albeit not in detail, to also note their desire to see more engagement along the lines of these matters going forward, which I think is a pretty reasonable request, and also to acknowledge the communication in the last 48 hours between the Acting Human Rights Commissioner, a response to which came from the office of Erica Stanford, being the Minister of Immigration. It was along the lines of acknowledging points made around clearly communicating the rationale for detention and ensuring that these are published—the measure of accountability and transparency. We’re talking about independent oversight and, of course, the response acknowledged the principles concerned but also noted, by way of detail, that the Ombudsman already has that statutory role.

Guidelines on the length of detention, depending on the number of arrivals—that’s the sort of staged or staggered approach by a number of arrivals that, no doubt, the Hon Phil Twyford will speak to in his own proposed amendment. But this is just to highlight that while we understand the idea behind that and agree with it to the extent that we would say that detention shouldn’t need to be longer than is necessary, that is indeed the principle of the bill. That is expressed already in the terms by which a judge can order no longer a period of detention than is necessary, so the size of the group would be a factor to be taken into account in that calculation that he or she would make.

Finally, again acknowledging the correspondence but, again, foreshadowing, no doubt, some discussion around the proposed amendment, is the idea that family members shouldn’t be separated without cause. Of course, again, we agree with that on a principled basis, but we would point out that not only is that a matter of current practice, it’s reflected in the operational manual by which Immigration New Zealand is required to operate. It reflects, too, certain provisions in New Zealand domestic human rights legislation such as the New Zealand Bill of Rights Act but also important international instruments to which New Zealand is a signatory, such as the UN Convention on the Rights of the Child, or UNCROC, and others. So by reason of the actions of the executive branch needing to be consistent with those international obligations and noting that they’re not inconsistent with the domestic law requirements and, indeed, practice, those, by virtue of that, already exist as a matter of law and practice in New Zealand.

So we’re confident that those points—very reasonably made, as they might be—by civil society, by the Acting Human Rights Commissioner, and by members of the House are, nevertheless, indeed covered by the bill as we propose it be amended with these Amendment Papers.

I won’t repeat the content of the four substantive amendments that are in the Minister of Immigration’s Amendment Paper, other than to say that I think they are good and necessary and substantially improve the bill. They are safeguards that were developed as a result of the select committee process and a Ministry of Business, Innovation and Employment paper that was taken to Cabinet under the last Government, and I think it’s a very constructive addition to this legislative process. Labour’s support for the passage of this bill was conditional on all four of those amendments being included.

I do want to comment on my three amendments that I’ve tabled for this debate. They are amendments that were developed in conversation with the consortium of former refugee and human rights advocacy organisations that have been corresponding with the Minister, that the Minister in the chair alluded to. Let me go through them one by one.

The first, after clause 7, inserts a section 311A in the principal Act and, basically, sets out the principle that families are not to be separated in the process of the detention of the mass arrival group. The Minister in the chair has set out, I think, the Government’s position on this, but I would, in this debate, ask him to keep an open mind and to consider this amendment. I understand that the officials’ advice has been that there are already commitments that Immigration New Zealand is bound by, including its own policy and operating procedures, including the Immigration Act and the Operational Manual, which contains a number of protections for children. As well as those, there are protections for children which would apply, including the New Zealand Bill of Rights Act, the Children’s Act 2014, the Ombudsmen Act, and the Oranga Tamariki Act, as well as the United Nations Convention on the Rights of the Child.

My argument is that’s not enough, in a situation where we are detaining asylum seekers. The internal operating procedures of Immigration New Zealand, and our obligations under international law, I think, are demonstrably not enough if we want to ensure that children are not separated from their families in the course of detention, post a mass arrival. The example that I would ask the committee to consider, including the Minister in the chair, is that, for a very long time, Immigration New Zealand—in decisions made by quite junior officials in the department—was locking up asylum seekers in prison, demonstrably inconsistent with New Zealand’s obligations under international law. It was happening for a very long time, and it took a campaign by the human rights sector, by Amnesty International, and it took an investigation by a QC, to tell the Minister at the time that this was completely inconsistent with New Zealand’s obligations under international law.

So I put it to you, Minister, that if we’re serious about trying to ensure that this legislation does the right thing for New Zealand’s reputation, for the rights and the dignity and the wellbeing of asylum seekers in the case of a mass arrival, then the drafting elegance that officials are keen to preserve simply doesn’t weigh up when we’re considering the wellbeing and the rights of asylum seekers. So I would ask the Minister to please respond to that.

My second amendment inserts in section 316 of the principal Act the provision that the Government will engage an independent third-party organisation to monitor the treatment and detention conditions of persons detained in custody after a mass arrival. There are two organisations that immediately spring to mind that would be expertly equipped to do this. One is the International Committee of the Red Cross (ICRC) and its local representative, the New Zealand Red Cross. The ICRC routinely plays this role internationally, all around the world, and has a great deal of credibility and recognised integrity in performing this role of inspecting the treatment and the conditions of detention. Also, under our own legislation, the Office of the Ombudsman has a statutory role to do that prison visiting.

Now, the fact that the Ombudsman has that role under existing legislation, the fact that the Human Rights Commission has a role of coordinating this kind of activity, does not mean that it has to happen. Those provisions don’t require the Government of the day to ensure that someone, some independent body, is visiting and independently monitoring the conditions and treatment of detainees. So I again say to the Minister, if you want to give confidence to the refugee and human rights community in New Zealand, if you want to create what I would describe as an internationally credible regime here, then we need to go the extra mile. The fact that there are already institutions in place that could do this doesn’t mean that it will happen, it doesn’t mean that it must happen, and that’s the critical difference.

The third amendment that I’ve put on the Table this evening places time limits on detention. It would mean that an immigration officer may apply to a judge for a warrant of commitment authorising the detention of members of a mass arrival group for periods of time no longer than seven days for groups of 30 to 50 people, 14 days for groups of 50 to 100, 20 days for groups of 100 to 200, and 28 days for groups of 200 people or more. It draws on exactly the same logic that underpins this bill—that the sheer logistics and admin involved in processing a group of mass arrivals and ensuring that their legal rights to representation are able to be met is greater the bigger the group. The logic’s really clear.

So this amendment, basically, then would put some hard limits on the amount of time that people can be detained while a warrant of commitment is being applied for. The advice, I think, of officials—and the Minister referenced this—is that already, in the bill we’re considering tonight and the Minister’s amendment, a judge is required to only hold people and allow them to be detained while the warrant of commitment has been considered for the minimum amount of time necessary. Yep, that’s very important and that’s a great principle, but, actually, that leaves it up to the discretion of the judge. What this amendment would do is create some hard limits based on the number of people in the mass arrival group. Again, I say to the Minister in the chair, this would give confidence to people and actually remove some of the latitude that could see people being held in custody, in detention, for longer than is strictly necessary. It would be an example of Government holding itself accountable to the principle that it professes is at the heart of this bill.

So that’s my contribution. I took from the Minister in the chair’s comments earlier that the Government has decided not to support these three amendments. I appreciate the dialogue that we’ve had so far on this, and I would urge him and his senior Minister, who is in London, perhaps, to seriously consider supporting these amendments, because I think they would go a long way to giving people confidence in the regime that’s being established.

I’ll just remind the member that we don’t refer to the absence of members in the House.

Thank you, Madam Chair. I thank the member for the dialogue. I think it’s a helpful exercise, notwithstanding that I had perhaps unfairly anticipated his arguments, otherwise known as stealing the thunder of another contributor to the debate. But I was acknowledging those points made in the letter that had gone back and forth. And, obviously, those same points made by some members of civil society have been also taken on board by the member, and I thank him for that.

I think, nevertheless, in relation to the voting intentions of the Government on those proposed amendments, it is still a useful exercise to have this debate and discussion, not only in the general sense of democratic engagement and transparency and accountability but, of course, for the particular reason that when there is uncertainty in the law, it may be that legal practitioners, up to and including the judge herself or himself, will look at the context of the law having been passed to judge the intention of the Parliament and also the Government in passing that law as an aid to interpretation. So I’m grateful for the opportunity to have this dialogue because it enables us to put clearly on the record the Government’s intention—for example, that families should not be separated without good reason.

So in the member the Hon Phil Twyford putting forward an amendment along those lines, even though that is unlikely to succeed, I would say, in terms of the voting intentions of the committee as I understand them to be, at least on the Government side; nevertheless, it’s helpful to spell out the fact that we don’t expect and we do not want families to be separated unnecessarily, unjustifiably. I do make that distinction and place that slight caveat, because, of course, it might be that an adult person represents a risk to national security. Notwithstanding that they may have other family members as part of a mass arrival group or notwithstanding that they may claim to have members of a mass arrival group and that be difficult or impossible to verify for obvious reasons—people arrive by sea. So I do want to place on the record, of course, that it may be the case that family members may need to be separated from each other for that purpose or, indeed, for the protection of the children involved—child or children. One doesn’t need to be hugely cynical about human nature to conceive of a situation where an adult person might find it convenient for their own purposes to claim that a child is attached to them by way of family ties in a way that may or may not be verifiable.

In terms of the commitments that are already made in relation to the interest of the child and also family units being preserved so far as possible in the circumstances, of course Mr Twyford’s right to reference international law. Indeed, I was right to reference it in the first place, but he’s right to reference my referencing. But also domestic law, and, of course, spelling out these things in committee of the whole House stage, I think, in itself, adds some weight to the fact that we recognise, we underline, and we emphasise these obligations. We do not wish our courts to be ignorant of them or deliberately to disregard them if there were any suggestion whatsoever that the words of the statute might give rise to an intention that these legal norms be disregarded.

Moving on to that second point, I’ll just respond to the three points that relate to the three different amendments made by Mr Twyford in the same order. So, second, moving on to the point about monitoring the condition of those who are detained: of course, he is  right to reference the credibility of the International Committee of the Red Cross—New  Zealand version thereof. I’m sure all members of the committee are grateful for the humanitarian work of this wonderful organisation over many decades, including on New Zealand soil. However, while he is right to reference that credibility and the work that is routinely done with people in a vulnerable situation, it is very likely for those reasons that Red Cross members would be involved in supervising, in looking after, in caring for, and in generally being involved with the conditions associated with a mass arrival group. To be asking them to be in a position of then also monitoring and providing accountability places them in an obvious awkward situation of conflict of interest, and I don’t think that’s necessarily appropriate, even though I wouldn’t suggest for a moment that there would be any abuse of that position of trust.

If I may continue, Madam Chair, then I would point out in relation to the Ombudsman—and I—

CHAIRPERSON (Maureen Pugh): Your time has expired.

And if I can continue, Madam Chair.

CHAIRPERSON (Maureen Pugh): I call the Hon Chris Penk.

—then I will gladly do so and gratefully do so to point out, in relation to the position of the Ombudsman, again, outlining this at committee of the whole House stage to put on the record that of course that role we would anticipate and hope would be exercised by the person exercising that office of Parliament—the Ombudsman. I emphasise the office of Parliament role as distinct from the Government of the day because Mr Twyford points out, and he’s right as far as this goes, that the Government isn’t requiring in this legislation that the Ombudsman take this action, but of course the point about the Ombudsman’s role is that it is separate from Government. If that person takes their duties seriously, and our ombudsmen—ombudspeople—always do, then they will be doing that without Government needing to direct them to do it at a certain time, in a certain way, or, indeed, at all. So, again, I think it’s tolerably clear from our constitutional arrangements, if nothing else, that it would be expected that the Ombudsman would provide that monitoring role.

The third and final point to be made relates to those proposed amendments by Mr Twyford. That principle of proportionality, he’s right, again, to point out that the bill already contemplates that there will be more time needed for more processing of more members of a mass arrival group and less time, correspondingly, for fewer. He points out, therefore, I presume, that it can do no harm to have a very specific mechanism and be quite prescriptive. But we would say, of course, on the flip side that, before it’s already in there as a principle and set out quite clearly in the law, an obligation that the judge would need to take quite seriously is to take no more time than is needed.

If we were to guess that a group of up to 50 persons could only be associated with a seven-day time frame, as opposed to eight days or nine days and so forth, I think that would be overly prescriptive of us—unnecessarily so, because, as I say, that logic is already in the law, and we’re seeking simply to strike a balance between the latitude, to use his term, or the flexibility that we probably all agree is needed at a level versus the certainty. We think that that balance is struck right by having that general principle that the least restrictive detention for the least amount of time must be observed in the way that those time frames are calculated and extended, as need be up to the 28-day mark.

Thank you very much, Mr Chair. So we’re now in Part 2 of the Immigration (Mass Arrivals) Amendment Bill. Let’s make it clear: no amount of amendments can take away from the fact that this is a rights-diminishing bill. Our opposition to the bill may be called by some self-righteous, and by others boring; we simply call it being on the right side of history and in line with human rights experts, people who work with refugees and asylum seekers, who, despite their best work to try and make this horrible bill less harmful—have actually constructively worked with many members of the Opposition to put forward amendments. We should not conflate the fact that human rights experts and those organisations are not in favour of having a detention regime; they’re simply trying to encourage us to make the detention regime not harmful.

So I want to pick up on some of the comments from the Minister in the chair, the Hon Chris Penk. He tried to give some assurances around the wellbeing of children, using, and quoting, that there’s the operational manual. But the operational manual can be, actually, changed at the whim of the Government of the day. It, actually, is by no means a method to protect the rights of children. If the past Government was to be used as an example, that was one where even immigration lawyers were not able to keep up with the very rapid changes that were happening in the immigration space. To say that we will protect the rights of children—

💬 Hon Shane Jones: Security! Security!

RICARDO MENÉNDEZ MARCH: —that are being detained, because there are some provisions in the operation manual—actually, it’s incredibly vulnerable. Because if we were to let someone like the member to my left—who keeps parroting just insult and nonsense—take charge of this legislation, who’s to say that he would, for example, not change this bill—it’s not change, sorry; the operational manual and instruct officials to worsen the rights of children. So to simply assume that the operational manual is good enough to safeguard the rights of some of our communities who have been affected by war, by genocide, by persecution, is a disservice to not only the submitters but, actually, to a genuine commitment to upholding the rights of children.

That takes me to one of my own amendments, which, indeed, as the Acting Minister of Immigration referenced, draws on the feedback from World Vision and the Red Cross around the need to make it really clear in the bill that children won’t be detained under any circumstance. So, in relationship to children, while the bill—and the parts with the “detention” in the bill—doesn’t stipulate, necessarily, the very specific types of facilities or, for example, doesn’t stipulate that those facilities may be fit for purpose for children, I then want to know what engagement he has had, since taking on the role, around the potential facilities that could be used, in relationship to their suitability for children. Children have specific needs that adults do not. Detention can have a very specific harmful impact on children. Therefore, the types of detention centres that would be used could actually result in quite big harm when it comes to children being in those detention facilities.

So, firstly, if the Minister thinks that the operational manual is good enough, I want to seek assurances and commitment that that operational manual will not be changed for the purposes of the rights of children so long as his party is in Government. Because I think that commitment around not touching the quite fragile operational manual is really, really critical. So I want to get some assurances and commitments around that, because the Minister is relying on a really fragile document that can be easily changed to justify how children will be protected. Secondly, I want to check and get confidence that the types of facilities that he’s explored will be suitable for children.

I will take other calls around some of my other amendments, but, while we’re on the relationship with human rights and the rights of children, the Minister touched on some of our international commitments that we have made in relation to the rights of children. If we were to test our international commitments—for example, how we treat disabled people under the acceptable standards of health—it has been traversed in this House that these international commitments mean very little when it comes to domestic immigration law, because we have section 392 of the Immigration Act. Actually, that, basically, ends up cancelling most of our human rights commitments because, for example, the Human Rights Commission isn’t able to actually take up any of those human rights breaches when it comes to immigration matters.

So I do want to test whether he’s sought advice around the interactions of the clauses that he wants to add in Part 2, and, in relationship, how those interact with section 392 of the Immigration Act, because there is an interaction there. I’ll take another call, Mr Chair—thank you very much, Mr Chair.

CHAIRPERSON (Greg O’Connor): Ricardo Menéndez March.

💬 Hon Member: Why?

RICARDO MENÉNDEZ MARCH: I hear the word “why”. Why am I taking calls? Why am I one of the only members who’s taken many calls in this debate? It’s because we’re introducing a bill, I may remind the member, that will allow for the detention of asylum seekers—this should not be taken lightly. We should not be making jokes, actually, about the detention of people who have gone through war and genocide. I see the members of the National Party smiling, but I hope they know they’re making levity of the fact that we’re talking about communities affected by this piece of legislation who actually have faced some of the most harrowing experiences.

So, continuing on my line of questioning, I was touching around the relationship between the clauses that he’s adding and section 392, which is around the relationship between the Immigration Act and Human Rights Act 1993. I think it’s really important that we get some insurances about how those two will interact.

Now, I did have other amendments to this bill. One of them, which I’ll speak at length to, is around making it really clear and clarifying in the bill that that we could agree, basically, to residency and reporting requirements as an alternative to detention for members of mass arrival groups, as the officers is appropriate—like others who may be liable for arrest or detention or of subject to a warrant of commitment. So I did want to test the Minister’s exploration of seeking alternatives to detention and making that clear in the law. This is something that Community Law and the New Zealand Law Society have suggested. What that would allow is to test, for example, if, at the time of a mass arrival group—say, the facilities that that initially had been intended to be used. I know that in the Foreign Affairs, Defence and Trade Committee, the Minister talked about, for example, managed isolation and quarantine - style facilities, like hotels, or the Māngere Refugee Resettlement Centre—if for some reason those facilities were not to be available, say, that homelessness was really high, emergency accommodation was being used and, at the same time, we were experiencing a really major international artist visiting our shores and, at the same time, filling the quota refugee space. I’m using those examples not as hypotheticals; I’ve seen firsthand—for example, when Taylor Swift visited not many years ago—how, actually, it was really hard for homeless people to find hotels. So, for example, if the Minister had told us—

💬 Hon Member: What are we talking about?

RICARDO MENÉNDEZ MARCH: —previously that hotels would be used—and, yeah, people on my left-hand side may be looking confused, but that may be because they themselves have never worked with homeless people and may have never experienced what it is like to be told at the front lines that emergency housing is literally not available because we’ve got international artists. So, for example—

💬 Hon Shane Jones: Stop making it up.

RICARDO MENÉNDEZ MARCH: I’m not making it up—you go work at the front lines with homeless people. So Shane Jones may just want to get a sense of reality of what it is like to actually work with migrants and homeless people before throwing his constant, pretty useless remarks in relationship to this bill and dismissing a bill that touches some of our most—

💬 Dana Kirkpatrick: That’s unnecessary.

RICARDO MENÉNDEZ MARCH: “It is unnecessary”—the ongoing remarks from Shane Jones are. So, you know, you may want to choose, actually, who you take seriously here.

But, anyway, going back to the requirements around detention: does the Minister not think that it is important to have alternatives to detention in the case of those intended facilities not being available? Like I said, we have had incidents of those. In relationship to those, can I just confirm—because the Māngere resettlement centre has been used as an example of a facility that has been used—how confident is the Minister around the staffing and resourcing capacity of that resettlement centre to absorb a large group that could be arriving by sea, when, for example, they may be already trying to accommodate other people arriving from other parts of the system? Is he confident that the level of resourcing right now would actually allow that specific facility that has been talked about in the select committee—not just in the process of this bill, but we kind of talked about it in the briefing of the Immigration New Zealand processes and policy and operations. So that was another question that I have.

So, for that specific facility, I want to know what level of correspondence he’s had with the resettlement centre. I want to check whether the resettlement centre has given him the 100 percent reassurance that the resources that they have will be enough to absorb that, and, if not, whether he’s actually engaged with the hotel industry, for example, and has gotten really strong assurances from the hotel industry around their absorption capacity should they already be used for other issues such as emergency housing, which we know they have been used for.

Thirdly, I want to test whether this bill and the facilities that have been alluded to, which are going to be used in this bill, would stand the test of time should we experience another major public health crisis.

Thank you, Mr Chair, and thank you to the member for a very thorough dissertation on the points that he wanted to raise in relation to Part 2. I’ll take them as best I can in the order that he raised them.

The first is in relation to the Immigration New Zealand Operational Manual. He suggested I shouldn’t rely on it. Indeed, I’m not—the Government’s not relying on it—I was referencing it as part of a suite of legal obligations as they currently stand. Yes, it’s possible that the operational manual be changed in the future, but we also have domestic legislation; we have international instruments that are not so easily undone. That is the point.

The fact that there is existing good practice now shouldn’t count against the fact that we should derive some comfort from that. As I say, though, we don’t rely totally upon that, and I assure the committee that it is not only in relation to that particular document that we would regard the requirement to preserve family units, treat children well, and so forth. Of course, if the operational manual were to be changed in a way that were inconsistent with those domestic and international legal obligations, then that would be a decision that would be reviewable in a legal context—an unreasonable decision one might conclude by way of judicial review and so forth.

Second, on the question of whether the facilities that would be employed are suitable for children. I’m tempted to make the point that the least suitable possible facilities for children would be a rust bucket of a vessel at sea trying to make its way illegally across the vast expanse of the Pacific Ocean, even the Tasman Sea. I can vouch personally for the fact that these can be quite hostile maritime environments, particularly in a situation where exploitation may have taken place to place these people in this position in the first place. It’s no light matter that children should be dragged along with such an endeavour—highly unsuitable—and, of course, that’s the context of the mass arrivals bill that we’re engaging in. Now, of course, that’s not to say, “Well, therefore, it doesn’t matter how suitable the facilities might be on their arrival to New Zealand.” I’m not saying that for a second, but I do want to make that obvious point about context.

In terms of the facilities that would likely be used, the discussion, yes, has focused partly around managed isolation and quarantine (MIQ) - style facilities—and I’ll return to those in a moment in the member’s questioning around their suitability, their capacity. But first I want to reference the possibility—indeed the likelihood—that the Māngere Refugee Resettlement Centre might well be employed in this way.

I’ve had the opportunity to visit the centre a number of years ago, along with various parliamentary colleagues at the time, including Erica Stanford, then being the Opposition spokesperson, I think, for immigration. I had no particular reason to go except that I was interested and I thought it was suitable for New Zealand representatives to know the kinds of conditions in which refugees being processed in a usual manner might be housed and accommodated.

I’m pleased to advise the member—or perhaps remind him and advise the committee—he might well already be aware that there are facilities within that centre that provide education for children. Obviously, on a temporary basis it would be contemplated in the situation of a mass arrival, but, nevertheless, the presence of young people is contemplated, catered for to some extent with that school, and also that there are specialist medical facilities. The fact that we have those goes a little way to answering perhaps the suitability of retaining or detaining persons who have arrived in a mass arrival event with complex needs, whether by reason of the fact them having arrived in that manner—health, medical needs—or by reason of the fact simply of them being children. So there’s a specialist element in that—again, emphasising, though, the inherent lack of suitability of the fact that people who are young people might be brought into this very risky and dangerous type of endeavour.

As for MIQ-style arrangements, I don’t imagine that any assurances that I would seek in May 2024 would be particularly meaningful in a future month or year or decade. Of course, we don’t know when it might be, if at all that this bill would be—or Act, as it will be; if it’s being applied, it would be an Act at that point. We simply can’t know what the future would hold. Again, the New Zealand State would have to manage as best it could in the circumstances, just as it did in response to the COVID-19 pandemic and the processing of persons from overseas or New Zealanders, and the employment of those arrangements in the first place, in the MIQ kind of way.

The member raised the scenario of Taylor Swift coming to New Zealand for a concert and exacerbating the very serious point about homelessness. I’m tempted to make an unserious point about the dangers associated with Taylor Swift coming to New Zealand for concerts, but I fear I would be losing votes or at least the support of various key people in my professional and personal life. So we’ll leave that point and simply observe that, actually, to solve the problem of homelessness is a much bigger endeavour of the Government than merely this bill. Indeed, if the member wants to have that debate, we welcome that in the context of our “Going for Housing Growth” policy.

But for now, I thank him for raising those various points in relation to Part 2. As I say, these matters have been considered, well traversed, canvassed at select committee; we’ve got Amendment Papers where we think it’s appropriate to meet them and other points that, again, were already raised by the Hon Phil Twyford.

Just before I call Mr Menéndez March, just a reminder that the House has got a preferred method—both the Minister and any member making a statement—of operating through the committee stages. Question and answer can be more effective often, and as Chair, I’ll facilitate that. The members are welcome to make full, five-minute speeches—that’s within their purview. However, in light of the spirit of trying to get good debate, good facts out at this committee of the whole House stage, I’ll just invite all the members involved just to reflect on that.

I appreciate that reflection, because part of the issue last night was the fact that I had to take multiple calls before the Minister had collected his notes to speak on the bill.

💬 Hon Member: It was two.

RICARDO MENÉNDEZ MARCH: Actually, it was to give him the—two—but that’s as many as I took just now.

But, look, I’d like to pick up on the comments from the Minister around the operational manual, because he says he’s not relying on it, but he is. The reality is that if you don’t put something in law and you tell us, “Don’t worry; the rights of children will be safeguarded in the operational manual.”, one is relying on the operational manual to ensure that the rights of children are upheld, and this is the reason that it is being used to justify not voting for amendments that would, for example, exclude children and their accompanying parents or guardians in a mass arrivals group from being detained, as proposed by myself. I know that the Hon Phil Twyford is proposing similar amendments around children.

So I think the public should have those facts clear that by not putting it in the legislation, one is relying on the operational manual. When we have members to my left literally making fun of the debate, the issue, and saying the contributions are boring, I would not have any trust that the operational manual would be robust enough.

The Minister has actually been unwilling to commit in the Chamber that that operational manual won’t be touched to affect and diminish the rights of children. So if he’s telling us, “Don’t worry; the rights of children will be safeguarded because they’re in the operational manual and we don’t need to put it in the legislation.”, I think it’s incumbent on him to give us assurances that it won’t be touched, that those rights of children won’t be further diminished by someone from the Government touching or discussing the contents of the operational manual.

So I think that’s really critical, because it was one of the key concerns from, for example, the Red Cross. I know the Minister said that he hopes that they will engage on this bill, but they themselves didn’t see the need for this bill. They provided constructive engagement, so I do think it’s a little bit rich to say, “Oh, look, we’ll dismiss their concerns; we won’t do anything with them, but then we’ll utilise the resources of an organisation that is actually still quite stretched.” For example, as we saw with the pandemic with the provision of emergency benefits, they were stretched to the limit.

Now, going back to public health issues, we did just recently go through a pandemic that required a great use of hotel facilities and mobilisation of public health resources, a pandemic that perhaps we were quite unprepared for at the time. But should this bill have been in place in a time of a public health emergency—whatever it may have been, a pandemic or otherwise. Can I just get assurances that he’s received advice and assurances that the resources that he’s hoping to rely on to actually accommodate the detention of asylum seekers won’t be compromised by public health emergencies?

Because public health emergencies do require a huge mobilisation of resources, and there do not seem to be any sort of assurances in place from the Minister that this won’t affect the bill. I think this is why my amendment around alternatives to detention is also important, on top of, for example, as I mentioned, the safeguarding of children.

I want to touch on the points that he raised around a detention centre being better, perhaps, than a boat, but that’s like two crumbs being better than one crumb, when, actually, people deserve a whole loaf of bread and roses, and far, far more. So I don’t think we should set the bar as low as to say, “Actually, it’s just better than being stranded on a ship.” I actually think we should be looking at ensuring that children who would have potentially been escaping some of the most harrowing conditions on earth are treated with respect and dignity and not just to arrive and be told, “Hey, look, at least you’re not on a ship; you’re now in a detention centre.”

So I know that he’s saying “no”, but that is why I want to take this question quite seriously and to ask the question: can he give us assurances that the facilities that will be used will be fit for purpose for the needs of children?

💬 Carl Bates: Of course they will.

RICARDO MENÉNDEZ MARCH: People may say, “of course”, but there’s nothing in the legislation, actually, that guarantees that—

💬 Hon Shane Jones: Stop talking down our country.

RICARDO MENÉNDEZ MARCH: I’m not talking down the country.

CHAIRPERSON (Greg O’Connor): Mr Jones, there are two sword lengths between these two sides of the Chamber. To continually use the top level of your voice—is it necessary to make your points? There’s no one in the gallery who needs to hear you, so carry on.

RICARDO MENÉNDEZ MARCH: Thank you. I know that for Mr Shane Jones, asylum seeker rights may feel like a joke, but they’re not, and this is why we take this quite seriously.

So, just to round up, in my last 30 seconds, to give the Minister an opportunity—can I get assurance around the facilities being fit for purpose for children, a commitment that he won’t touch the operational manual, and confidence that the resources that are available and that will be used for detention centres won’t be compromised for public health emergencies, before I continue with more questions that are relevant to Part 2.

Thank you, Mr Chair. I just want to respond really briefly. First, I object to the characterisation of my remarks that it is placing children’s lives in danger and with total disregard for their welfare to put them in this situation in the first place—so people traffickers and those engaging in this illegal and dangerous activity should have that point made very clearly in relation to their activities. That is not the same thing. I made it explicitly clear at the time that I was making those remarks that that is not the same thing as saying we should disregard the requirements to their welfare in relation to suitable facilities on New Zealand soil. As I say, I don’t take kindly to the fact that that implication was made by the member in his latest remarks.

Briefly, in relation to the operational manual, I was not relying and the Government is not relying on the existence of the operational manual in its current form to provide the assurances. I’ve referenced it as part of the suite of protections. If it were not to be there in that form, then other protections would still apply. That is the extent to which we rely on it. We do not rely on it solely. I can’t guarantee that it won’t be changed. I can’t guarantee that the sun will rise in the East and set in the West tomorrow. One can’t know the future, but one can take comfort from the conditions as they exist at the moment to express our recognition of the legitimate concerns raised through this process, including through the committee of the whole House stage, and the comments made by Mr Twyford and some of the comments made by Mr Menéndez March reflect that. But to sort of take the remarks in bad faith and to suggest that there is necessarily a thing to happen upon which I am supposed to give a guarantee about the future, I think is, frankly, not reasonable.

Finally, in relation to the guarantee sought that there will be no public health emergencies that might impact on the capacity of these facilities, of course I can’t. I mean, I’d love to be able to guarantee that, but it would be meaningless. We can only know that if we set up a mechanism for dealing with people in an unexpected situation—a situation which, as we heard yesterday, quite rightly, is not likely but not impossible—all we can do in this House and as policy makers and those who resource the State is to provide the best possible conditions should that situation arise in the circumstances that we face at the time. That is what this bill does. That is the purpose of this exercise, including the amendments.

If the member has any original points to make in relation to Part 2, I’d be very interested to hear them, but, frankly, we’re starting to go round in circles now about the member’s more general scepticism—and he’s welcome to that, but, frankly, it’s not assisting our understanding of the debate.

I move, That debate on this question now close.

Thank you, Mr Chair. There are still two more amendments that I’d like to discuss. I also don’t agree, as a matter of fact, with the characterisation of the Minister regarding general comments, because these are very specific to (a) the resources that this bill will require and (b) to the safeguards of children, which actually were raised by submitters, and are in two different sets of amendments. So I do think those are really worthwhile traversing.

The Minister kind of proved the point, right? He said, “I cannot guarantee what will be in the operational manual.” But this is why those amendments really matter. Because, actually, by voting for those amendments, we’re not relying on the Minister of the day or the Cabinet of the day to change the operational manual to then provide us with those assurances or leave it at risk of future Cabinets and Ministers undermining that same operational manual.

But, anyway, going to one of my other amendments, particularly drawing on the submission from the New Zealand Council for Civil Liberties, one of the things that they suggested, and that I put forward as an amendment, was around narrowing the reasons for a mass arrivals group to be detained to only be to manage security risks, instead of it disrupting the operations of the District Courts, or that it is challenging for the immigration system to manage the mass arrivals group. Part of that was, as many submitters pointed out—and the reason why many submitters raised the fact that this bill wasn’t necessary—because they thought that the place to start would be to actually resource the courts, resource those community centres, rather than creating a detention regime independent of the level of risk that some Ministers may or may not be privy to regarding the impending or otherwise arrival of a mass arrivals group.

This amendment—and why I want to get the Minister’s comments on whether it would not be more suitable to narrow the scope of the bill for that attention to be around managing security risks, which in and of itself won’t be perfect. There will still be issues around how those are applied, but that actually would allow for a far more human rights, or less-human-rights-diminishing, approach to this bill. Because, I guess, that raises to the more philosophical point of the question—and it is not a general point; it goes back to, I think, the little Part 2 dance around the detention regime.

If the Minister thinks that there are other reasons to detain people other than to manage security risks, those then need to be really explicit in legislation to ensure that, again, we have those safeguards and clarity for people for when they’re detained, about what those reasons may be, rather than just detain them for the sake of having the courts actually be able to go through those processes. Those processes can actually go ahead independent of detention.

So I do want to get the Minister to comment as to why we wouldn’t just narrow the reasons for mass arrivals to be detained to be only to manage security risks. That goes back to my comments that I mentioned in Part 1, around the two-tier way of treatment of asylum seekers. I know the member Phil Twyford talked about the previous practices of putting people in prisons, but, effectively, what we’re doing here is still creating a practice world. While we may not be using prisons, and those facilities may be unsure, you could be detaining people who actually have posed no risk to the community when it comes to health or when it comes to security. But this bill doesn’t allow for those nuances to be made really clear.

So my question to the Minister is: why wouldn’t we narrow the scope of the reasons that people can be detained to “simply manage security risks” which would go back to the heckling of Shane Jones actually in Part 1, where he was yelling, “Security, security, security!” Actually, if he’s so concerned about security, I would see a great reason to then support narrowing the scope off the bill. I almost think New Zealand First is in support of this by the looks of it, because it seems like security is one of the key concerns and why not just make it more specific.

The last point I’ve got in regards to my amendments will be around disabled people, and I’m just foreshadowing to the Chair because I want to give the Minister an opportunity to answer the questions around my amendment regarding narrowing the scope for people to be detained.

Thank you, Mr Chair. I can answer very simply the reason that we do not think it appropriate to narrow the scope of this bill, effectively, to just national security considerations, important as those may be in many situations. It is that to do that, and to define the purpose of a mass arrival warrant in that way, would be to strike the reasons that currently are recorded in the bill, which include to effectively manage the mass arrival group and to uphold the integrity or efficiency of the immigration system. Of course that must be an aim of any major aspect or regime within the Immigration Act.

I’m just confused that any member of this House would suggest that we shouldn’t aim to effectively manage an arrival and to uphold the integrity of the system. To implicitly encourage, as might be a message that would be taken away from such an amendment, the inefficient operation of the system or an attack on the integrity of the system—and I recognise, of course, that a mass arrival group is by its nature outside the established legal protocols, including those available to refugees and potential refugees—that’s clearly something that I think any responsible Government wouldn’t support.

I move, That debate on this question now close.

The question is that the Minister’s amendments set out on Amendment Paper 28 be agreed to.

Amendments agreed to.

The question is that the Hon Phil Twyford’s tabled amendments to Part 2 be agreed to.

The question is that Ricardo Menéndez March’s amendment set out on Amendment Paper 34 be agreed to.

The question is that Ricardo Menéndez March’s amendment set out on Amendment Paper 35 be agreed to.

The question is that Ricardo Menéndez March’s amendment set out on Amendment Paper 36 be agreed to.

The question is that Ricardo Menéndez March’s amendment set out on Amendment Paper 37 be agreed to.