Worker Protection (Migrant and Other Employees) Bill

Members, we come now to the Worker Protection (Migrant and Other Employees) Bill.

Point of order, Madam Chair. I seek leave for all provisions to be taken as one question.

Leave is sought for that course of action. Is there any objection? There is none. The question is that Parts 1 to 3, Schedules 1 to 3, and clauses 1 and 2 stand part.

Thank you, Madam Chair. I’d like to start down the back end of the bill, with the infringement offences and the publication of names and information in respect of immigration offences. I’d like to ask the Minister, in relation to new section 383A(1), inserted by clause 10: “the chief executive may, in order to promote the [objectives] of this Act, publish the information specified in subsection (2)”. My first question is to the Minister, if she is able to let us know under what circumstances the chief executive may or may not do this? What is the framework that they’ll be working to as to when they would make a decision to publish and when they wouldn’t?

I just want to begin with some introductory remarks to this bill, and it’s great to be here at the committee stage of the Worker Protection (Migrant and Other Employees) Bill. I know that the second reading of this bill provided for a fair bit of robust debate that canvassed the general principles of the bill and allowed members to describe, in general terms, their views about the bill. I just also want to thank the select committee for their consideration of the bill, and submitters who took their time to provide their views as well.

I also want to introduce a Supplementary Order Paper that has been tabled. It makes two small but important amendments to the bill. Both changes relate to the document production power—that’s clause 4 in the bill. The first change confirms the narrow scope of the document production power—I know there was a fair bit of debate about this at select committee as well—and the change there is that it can only be used to require documents relating to the remuneration and employment conditions of migrant workers whose visas an employer has supported.

The second change ensures that information obtained can’t be used to the detriment of migrant workers in an immigration context. These changes, I believe, strengthen the intent of the document production power to ensure, really, the compliance of employers who support a migrant’s visa.

I do also just want to take a moment to acknowledge the member Ricardo Menéndez March from the Green Party. It was his suggestion, in a conversation with me, to strengthen the document production power to the benefit of migrant workers that has really led to us teasing out and introducing this amendment as well. So can I just thank all members for their continued work and advocacy on behalf of migrant workers.

Thank you. I will repeat my question. In relation to new section 383A, inserted by clause 10, “Publication of names and information in respect of immigration offences”, “(1) The chief executive may, in order to promote the objects”—I think it’s supposed to say “objectives”—“of this Act, publish the information specified in subsection (2)”. So my question to the Minister is: what is the framework that the chief executive will be working to, and in what circumstances may they, or may they not, publish this information? I guess the question to the Minister is: is there a seriousness angle to this? Is there some sort of scope as to when they would and wouldn’t? Are there any guidelines? And if she could give some examples of potentially in what cases the chief executive may or may not do that.

My second question is in relation to that same new section 383A: where would this be published? The first question is: they may publish it, but under what circumstances would they or wouldn’t they, and what guidelines are there? And, secondly, where would they publish it? And my third question, keeping with new section 383A: there is a list of things under new section 383A that the chief executive will do when they publish it. This is under subsection (2). The information that may be published is the following: the name of the employer, the employer’s trading name, and a few other things. One of the things that’s missing from there, and I’m wondering if it’s done on purpose—and if it is, why that is—is a description of the infringement.

There are three types of things you might be pulled up on under replacement section 359A(1) inserted by clause 7. The employer “must not (a) allow a person who is not entitled under this Act to work in [their employment]”. Secondly, they must work in a manner that’s consistent with their visa—that’s the second type of infringement. And then the third type is failure to produce the documents. So, in new section 383A(2), there is no requirement in there, as far as I can tell, to explain what type of offence the infringement is. So I’m just wanting to know from the Minister if that was an oversight or why that has been omitted, because, at the moment, you can have your name published to say, “You are an employer, here’s your name, you’ve been issued with an infringement notice”, but it may well be that you just took 11 days rather than 10, or it could be that you allowed someone to work for you who wasn’t supposed to be working for you. They’re quite different offences under the infringement offence, but that detail is not required to be published. So I’m just wondering why that is. So there are those three questions.

I’m going to stay on new section 383A because, if I feel like, if I keep going, the Minister won’t potentially hear what I have to say on the next part of the bill. So, in summary of new section 383A, we’ve got three questions: where would they publish the data? Under what circumstances would they publish the data? Because the word “may” has been included in the bill. And I’d like to know under what circumstances—if there is a severity. And I elaborate on this point because, as with my earlier point, there are different offences that you can do to get an infringement notice. I’m interested in whether or not the chief executive may choose to publish some and not others, depending on the seriousness of those offences. That was the second question. And then the third one: the description of the infringement isn’t required to be published, and they are quite different offences. So I’m keen to know whether that’s been left out on purpose. Thank you.

New section 383A, inserted by clause 10, that the member Erica Stanford has mentioned, will, basically, enable the chief executive to publish the names, as mentioned, and certain other details of employers who are convicted of offences against the Act or issued with infringement notices in respect of the specific infringement notices in this Act. The whole point of this is really to ensure that we align the frameworks between the Immigration Act and the Employment Relations Act. The point is not to name the conviction or the infringement, but the point is actually the consequences of that and to be able to see that. That is what this particular section allows for.

Well, that leaves my first two questions. The very first question I asked was around “the chief executive may”, and I would like to know under what circumstances the chief executive may or may not. So when he’s deciding—or she, whoever it is—to publish the fact that there has been an infringement notice that has been produced to an offender, under what circumstance would the chief executive make that decision whether or not they would publish or not? Is it to do with the seriousness of the offending? What’s it to do with? The word “may” is, obviously, giving him—or her—some leeway, and I just wanted to know what that leeway was.

Thank you, Madam Chair. I’d just like to talk very briefly about Supplementary Order Paper (SOP) 360 that the Government has put forward. I appreciate that this SOP seeks to address one of our concerns with this bill, and, obviously, a great deal of inspiration for that SOP came from my colleague in the Green Party.

So regarding this, it says a new subsection is inserted to ensure that information obtained from an employer under this section cannot be used by the immigration officer or the department to take “adverse action”. So my first question is just around that concept: to take adverse action as opposed to just “action”. I wonder if that’s potentially open to misinterpretation, where an immigration officer may say, “Well, no, I swear, when I was looking at this information, I decided to take action. I didn’t think it would have negative consequences.” Therefore, it’s some sort of loophole. So is that something that the Minister would like to comment on?

And just lastly, despite this added safeguard, covered by this SOP, given action will be, nevertheless, taken against the employer—it clearly spells out that that can happen—how can we be then certain that there won’t be unavoidable consequences against the employee regardless? Because, you know, immigration officers and compliance officers are humans, after all. It’s not like they can forget that they saw something, and it might motivate them to actually investigate somebody directly. So I guess what I’m saying is I’m worried that this SOP in this bill is missing some sort of safeguard to ensure that that doesn’t happen, to ensure that the intent of this SOP actually comes into fruition.

Members, the time has come for me to leave the Chair for the dinner break, and the House will resume at 7:30 p.m.

Sitting suspended from 6 p.m. to 7.30 p.m.

Members, the House is resumed.

Thank you, Mr Chair. I’ll just respond to a couple of comments and questions that were raised before the dinner break. There was a question about why it’s “may” in new section 383A, inserted by clause 10—why the chief executive may publish the names in the names on a stand-down list—and it’s really to give the chief executive discretion on a case by case basis to publish or not publish. I mean, essentially, if there is a conviction or an infringement offence issued, then it gives the chief executive authority to publish names on a stand-down list. That is the point of that particular section, but it is also to acknowledge that there could be a requirement to do that on a case by case basis so that there aren’t any inadvertent issues that come out of that.

The other question was around the wording that was used in the Supplementary Order Paper around “adverse action” rather than just “any action”. The point of that is to prevent anything bad happening to migrants if information is disclosed inadvertently but not to prevent immigration officers from extending support to them if required. For example, if they do require a Migrant Exploitation Protection Work Visa, then if the wording was “any action”, it would preclude immigration officers from being able to offer that support.

Thank you, and I appreciate the Minister’s response to that. I guess I’ll add that one of the reasons for looking into this and questioning this is that intentions in the immigration space often don’t quite play out in reality.

Immigration officers are well known, from time to time, to get a bit carried away, and I think a good example of this, a good issue to raise, is that I’m sure we all remember back in August 2021, the Government—and we joined in on that—apologised for the Dawn Raids. Now, in that time since that apology, there have been 29 dawn raids, and it’s also important to note that there has not been a single application to the national manager of compliance declined for one of those out-of-hours compliance visits.

So the Government will say one thing; will claim one thing—and Parliament as a whole, in this case—that certain things in immigration are unacceptable. What I was referring to before is the Supplementary Order Paper—the law—may say one thing, but actually what immigration officers do may differ. The Government says one thing; Immigration New Zealand could, in theory, do the opposite. So just like with the Dawn Raids, what’s to stop the same thing happening here and migrants getting burnt by this?

Thank you, Mr Chair. This is going to sound like a weird patsy, but I was hoping to get the Minister to explain again her Supplementary Order Paper. I know that she did it at the beginning, but I was just hoping she could do it again. Not so much around the new subsection (6), but the other part, changing “may work” with “may only work”. Could the Minister just go over that again?

Sure. So I’m very happy to do that. As the member mentioned, this Supplementary Order Paper makes two minor changes, both to do with the scope. So the first change that I believe the member is asking about narrows the scope of the document production power. So, initially, the way that the wording was, was such that it could have accidentally inadvertently captured employees who were, for example, on an open work visa and not specifically linked to the employer who’s supporting their visa. The change narrows that so that the document production powers would only apply to the employer that is supporting or named to be supporting that particular migrant worker.

CHAIRPERSON (Greg O’Connor): Just for members, while questions and answers are short I’ll try and stick with one member and then move on to another rather than flit around the House.

Thank you, Mr Chair. Thanks for that explanation, and that’s what I thought the Minister would say, so I’m on the right track. I’ve got an issue with that Supplementary Order Paper in relation to the employment infringement offences. So under replacement section 359A(1), inserted by clause 7, “An employer must not” and they’ve got (a), (b), and (c); (b) is if you work in an inconsistent manner with your visa, so you work an extra shift when you shouldn’t, for example; (c) is around not complying with the documentation request; and (a) is problematic now, because (a) says “allow a person who is not entitled under this Act to work in the employer’s service to do that work”. Now, that potential breach will never be able to be found out because the desk-based officer is only allowed to ask for documentation between an employer and an employee who must only work for them. So I was expecting that if a desk-based officer found out that—I’ll give you an example: the employer is McDonald’s. The employee, their documentation—

Hon Scott Simpson: Good company.

ERICA STANFORD: They were in tonight, that’s why I mentioned them. Their employee, his or her employment conditions say “May only work for KFC”, but is working for McDonald’s. Now, that would be a breach of section 359A(1). However, with this change, the desk-based officer would only be able to ask for documentation between McDonald’s and a person whose visa said “You must only work for McDonald’s”. So the KFC worker who’s working for McDonald’s—in breach of his visa—and McDonald’s may know that; “Hey, we’ve got a KFC worker working for us, great.” Will never be picked up. So my question is around section 359A(1)(a): when would that be triggered? Because it kind of looks like it would never be triggered. So I will just give the Minister some time there. And it looks like this was actually always the intention, because I note in the original bill it actually said in new section 275A(5)(b), inserted by clause 4, “they must work for that employer”. We changed it. It looks like it’s been changed in committee to “may”, now being changed to “may only”. So it looks like we’re going back to what the original intent was. But my question is around when will new section 359A(1) be triggered if a desk-based officer can’t ask for those employment documents?

While we just give the Minister some time, because I’d like to go back to an answer she just gave to my first question, before the break, around the publication—the chief executive “may” publish names and information. Now, the Minister has just explained that the chief executive may—he may do it if he wants to, he or she. But my question was around, what is the framework, what is the guidelines for that chief executive to do it or not to do it? We are leaving it completely up to their decision whether or not they publish, but my question is, why is there no framework or guidelines? Surely it would be around, I guess, seriousness, and if it is around seriousness, why is that not included in the bill?

As I’ve said before in the House, I feel I have explained the question around “may” in new section 383A, inserted by clause 10, but I will say it again. Two things to that, two points that I’d like to make; firstly, the one that I’ve already made, which is that it gives the chief executive a level of discretion. So it is quite clear in the Act that the person who is named must either have been convicted or have been issued an infringement offence. So it’s not leaving it completely up to the discretion of the chief executive at all. It is defined in what cases people can be named on the stand-down list, but it does allow the chief executive to go through it on a case by case basis, in case there’s some reason why a person shouldn’t be named.

The second point that I’ll make is that it is a term that aligns with the term that is used in the Employment Relations Act as well. The second question that the member asked, which was around the power—the “may only” bit that the member mentioned. That is correct. But this bill doesn’t aim to solve all problems. There are other pieces of legislation and other parts of the legislation that will deal with the problem that the member mentioned. So section 277, for example, would already be able to achieve that aim.

Can the Minister, in that case, confirm that replacement section 359A(1)(a), inserted by clause 7—which is the infringement notice that can be given if a person is not entitled to work for that employer—can definitely be triggered by other clauses and in the bill, and under what circumstances? So can she give us an example of how that would be triggered in that case?

Thank you very much, Mr Chair. I’d like to raise a different matter. I didn’t sit on the Education and Workforce Committee, so I’m presuming that this matter that I’m to raise was traversed in select committee, and some kind of satisfactory situation evolved from that. I’m particularly referring to replacement section 365B, inserted by clause 9, and this is in relation to how infringement notices may be served. Now, I know from previous pieces of litigation, when an infringement regime has been imposed, normally officials advise that “oh, they’re very difficult to administer”, that “the servicing of infringement notices is hard, it’s difficult—you can’t find the people; you can’t identify them. You don’t know where they live; they haven’t got an accurate email address, all those sorts of things”. But here, in this legislation, apparently, miraculously, it’s going to be OK.

So I’m keen to know from the Minister in the chair in relation to section 365B(2)(b), that “leaving it for [a] person at the person’s last known place of residence with another person who appears to be of or over the age of 14 years”—now, that just strikes me as being ludicrous, absolutely ludicrous, and completely beyond the realms of plausibility. But it gets worse, because section 365B(2)(c) says “leaving it for the person at the person’s place of business or work”—with another person again. So someone just comes into a workplace—say, the parliamentary precinct—leaves it with the security guy and says, “Please pass this to, oh, I don’t know, Michael Wood, the previous Minister of Transport—he used to be in that job, we don’t know that he’s here anymore. He’s gone away and done something else completely different”. Who’s going to do it?—actually, you probably have to deliver it to him 12 times before it might get through. So I’m interested to know about that clause.

And then, here, it goes on again: section 365(2)(d) says “sending it to the person by prepaid post addressed to the person’s last known place of residence or place of business or work”. This is just a lottery. Postal services are notoriously slow and ineffective. We’re not dealing these days with a snail mail regime that is in any way purposeful. But it just strikes me that to be leaving the provision of infringement notices being served to this kind of random pot-luck status is just asking for trouble. So I’m keen to know what the Minister has to say on those matters, please.

Madam Chair? Mr Chair.

CHAIRPERSON (Greg O’Connor): Dr James McDowall.

Dr JAMES McDOWALL: Apologies, Mr Chair, for misgendering you just then. So just to follow up on the previous discussion between my colleague Erica Stanford and the Minister—just to seek some further clarity there. So the Supplementary Order Paper 360 states that—in the wording as we’ve canvassed it, “unless the worker’s visa allows them to work only for that particular employer”. So is the Minister saying then, effectively, that if an employer hires migrant employees unlawfully and say those employees have an Accredited Employer Work Visa for a different employer, and they haven’t done variation of conditions, etc.,—does this wording mean that, in theory, Immigration New Zealand can’t access the documentation for those employees? Because that would seem rather strange and counter-intuitive.

I will clarify, for both members’ benefit, what this particular section is aiming to do. In the example that was provided around McDonald’s—basically what this bill is aiming to do is to ensure that we have the tools to be able to nip lowerlevel offending in the bud, because currently all that immigration officers have is prosecution, which is a very high threshold; it’s severe offending. We have evidence that shows that nipping lower-level offending in the bud prevents it then, potentially, from becoming severe offending, and so largely, this is what this bill aims to do, to ensure that we have the tools to be able to do this.

So in this case, if, for example—the example that Erica Stanford provided—McDonald’s is hiring a migrant worker, they’re meant to have, under the law currently, documents showing the contractual obligations there, then what this means is that deskbased immigration officers would have the powers to then ask the employer to show them the specific documentation for the specific migrants that they are hiring to make sure that they are compliant with the law. That’s pretty much what it does. If, for example, they then have reason to suspect that there’s potential other exploitation going on that isn’t captured in the changes made to this bill, then there are other powers within legislation for them to be able to search, for example. So the section 277 power is a search power which would allow immigration officers to actually go into the premises and figure out what’s going on in terms of compliance or non-compliance. So to both members’ questions, that’s the aim of this section.

In terms of the serving of infringement notices, I mean, officers won’t be able to magic up specific ways to ensure that infringement notices are served, and so the list here that the member read out has different ways in which, you know, officers who are serving or issuing that notice can try and get the infringement notice to the person it’s being issued to.

Thank you, Mr Chair. Well, it was interesting listening to the Minister’s explanation there, because, well, she basically said that once a desk-based officer had asked for documentation and looked at that documentation and suspected something else was going on—well, I guess the point is they wouldn’t suspect something else was going on because they wouldn’t know because they weren’t able to have access to any documentation. So, yes, while I understand they can then go and visit the business, as we all know, that doesn’t happen very often at all—we know that from the statistics. So, if the Minister was trying to create a bill that gave her powers to be able to identify where people were not abiding by the conditions of their visa, well, this bill doesn’t do that. I guess the question for the Minister is: how would the desk-based officers have any hunch that something else was going on if they weren’t able to ask for that documentation?

But I’ll move on, and the Minister can answer that later on. I’ll move on to a different point. I guess the question for the Minister is: is she aware of an existing power that Immigration New Zealand already have, to ask for wage, time, and contracts from employers? Does she know that that’s something that Immigration are already able to do, and, under what circumstances could they do that, is the question.

Well, I’d like to go back to this question of how an infringement notice is going to be served on an employer, because I don’t think the Minister’s answer was remotely satisfactory. Just providing, in the statute, a list of potential options might be well and good but the question surely should be: are those options going to be effective? Is the infringement notice actually going to get to the person that it’s intended to give effect to? I’m not remotely convinced that any of these options so far that I’ve mentioned will provide the kind of certainty or surety that a court would look to, when potentially prosecuting under this legislation, because I think a court’s going to say, “Well, look, you know, just turning up to the parliamentary precinct and handing over a document to the security guy and asking him—he or she—to deliver that to somebody else, that’s pretty random.” But it gets better.

So I went through four or three of the options that the statute’s going to provide, but replacement section 365B(2)(e), in clause 9, says, simply, “sending it to an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand”. Now, that’s even surely more random—some kind of just fictitious, imaginary made up email address. Or will it be a Facebook page? Will it be a TikTok address? Will it be an Instagram thing? What on earth does that mean to be “an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand”? And I think the question I have for the Minister is: what does that mean in practical terms? What’s going to be the practical impact of the wording of a piece of black-letter law that says something as vague and as uncertain as that, and what are our judicial friends going to interpret that to mean?

Thank you, Mr Chair. I’ll carry on from my last line of questioning. My question was: is the Minister aware of any powers of Immigration that they already have to ask for these documents that are being signalled in this bill?

The reason I ask that is that Immigration New Zealand currently have a power to ask for this documentation when they are accrediting businesses under the employer accreditation process, so they can ask for it at that stage. They can also ask for it—and they have been just recently asking for it again or asking for it for the first time, potentially—when they are doing a check on those accredited businesses like they are doing now at Immigration New Zealand. So, a year ago, we accredited a whole lot of businesses and now, a year down the track, Immigration New Zealand are doing checks on these accredited businesses and asking for employment documentation, like wage records, like contracts. So that is already happening.

So I guess the question for the Minister is why is it that we are creating a bill allowing this to happen when Immigration New Zealand are currently already doing it? They’re doing it when a business becomes accredited, they’re doing it in an accreditation check and, in the case of certain businesses like franchisees who have to become accredited every single year because they are in a high-risk industry, then they can potentially be asked for that documentation every single year. That is one of the listed types of businesses that may be targeted under this law.

So I guess the question for the Minister is, if I was an employer and I was asked for this documentation when I became accredited, when the accreditation check happened, and then every single year when I became accredited, what is the need for this bill if that’s already happening? Are we just creating something (a) that is not needed and (b) is overkill, because this information can and is already being asked for?

So, a couple of things. Firstly, immigration officers don’t act based on hunches, and to the point that was made earlier in terms of how they might then find out that they have reasonable cause to suspect that there’s other forms of exploitation potentially taking place, there are other ways in which they can get that information, not necessarily through these changes that we are proposing, because the whole point of these changes is to check compliance and to nip low-level offending in the bud as I’ve said a few times already.

Section 277, as I mentioned earlier, does allow immigration officers search powers. Again, I said this twice already in the House. They do allow immigration officers powers to search various employment documents and things like that, but the threshold is much higher and it is a much more obtrusive power because they are physically going into employers’ spaces and checking compliance. This is to allow desk-based—certain deskbased—immigration officers the power to request specific documentation that employers who employ migrant workers should already, or are required already under the law to, hold. So it’s really just checking compliance, there, and that’s what these new powers will enable them to do, because they don’t currently have those powers.

Going back to the member’s question and great interest in infringement offences and how they’re served, this is standard drafting for how infringements are already served. So, there you go.

Well, I beg to differ—it’s not. And we’ve had cases of legislation come to this House where infringement regimes have been literally tossed out because they are not able to fulfil this kind of nonsense that is being proposed in this legislation. So let’s assume for a moment that someone has left a notice at a person’s last known place of address with a person who appears to be over the age of 14, or maybe they’ve left it at the person’s place of business or work with another person unknown, unspecified, or perhaps it’s been sent by a pre-paid post address to the person’s last known place of residence or place of business or work, and none of those have been able to achieve the successful outcome required. Replacement section 365B(3), inserted by clause 9, creates a presumption of service, just a presumption that the infringement notice has been served; and it says, in section 365B(3)(b): “a notice sent to a valid electronic address is to be treated as having been served at the time the electronic communication first entered an information system that is outside the control of the Department.” Well that’s just drafting gobbledegook—drafting gobbledegook.

What is and who determines a “valid electronic address”? How can that be determined? Who decides, and how would you know? How on earth would you know whether it was a valid electronic address or not? So I simply reject the notion that this is standard drafting procedure—it’s not. It hasn’t been applied in previous legislation—I can remember bringing to this House a piece of legislation that would have modestly increased the fines for littering, and the Government threw it out, said “Oh, no, no, you can’t have infringement notices, they don’t work. You can’t serve them, nobody knows how to contact the people and you can’t identify them.” Why should this piece of legislation magically cure all those questions?

I’ll go back to my question around the powers of Immigration New Zealand to already ask for the documentation that’s been referred to in this bill. So at the moment, post-accreditation checks are being undertaken and exactly these documentations are being requested: wage records and contracts. So employment records are already being asked for. And if a business is to be re-accredited every year, they could be asked for their information. So my question remains to the Minister: does Immigration New Zealand already have the power to ask for wage records and contracts like they’re asking for right now in the post-accreditation check process?

There will be some employers, many perhaps, who will go through the accreditation process to be able to employ a migrant worker, and for them what the member is saying is true, but there will be others who don’t, for whom these particular powers will be new powers that allow immigration officers to require or to check compliance with the law.

To Scott Simpson’s repeated points around the methods of serving infringement notices, I’ll say a couple of things. One is that there are different options, and the person who’s serving the notice will obviously pick the option that they think is most reliant in their bid to get the notice served. The second thing that I will say is that things need to be looked at in context. With this particular bill, the people that Immigration are contacting will be from companies that already have interaction with the immigration system, so it is quite likely that they will already hold the information that’s required to be able to serve the infringement notice in a way that is reliable. And then, clearly, they will pick the most reliable method. Those are the points that I will make to the members.

Thank you, Mr Chair. I just want to ask the Associate Minister for Workplace Relations and Safety, in relation to the power to access employment documents—and earlier she had actually answered in relation to my colleague Erica Stanford in relation to the way that the immigration officers work, that they don’t work on hunches, and these are new powers, that the immigration officers could ask for documentation related to employment of migrant workers. If they are to require this documentation at random, I’d like to know how they are selected at random. Some of them, they might have infringed a rule and there might have been a report or some sort of a complaint—I can understand that happening. But if they’re doing it in a random manner, as in, I think it was the first reading when we were talking about potentially—“fishing expedition” was one of the terms that was used. If that is the case, is there a profile being established on the bad actors in this field, and are they ethnically linked? Are they doing ethnic profiling for this? Who are the supposed bad actors in this case? I’d like to know how the Minister is going to determine why some people will require these documents to be produced and not everyone or others.

I want to just probe further into the Minister’s last answer, when she agreed that employers who had been accredited under the Accredited Employer Work Visa scheme already can be asked for these documents, and are currently actually being asked for them in the post-accreditation process. Then she said, “Well, there will be other businesses who don’t have to get accredited who this will apply to.”

So my question is: which businesses are those and how many of them are there? Because I’m trying to understand what type of business would have a migrant worker tied to their employment who would not be required to be—what’s the word?—accredited. So the Minister clearly stated that she agreed with me that if you are an accredited business, you can already be asked for this information, but she said that there are other businesses who don’t need to be accredited who might have migrant workers tied to their business, which this bill would apply to. So my question is: which businesses, under what visa scheme, would not need to be accredited, and how many of them are there? Because my understanding is that pretty much all businesses need to be accredited these days if they are going to have someone tied to their employ. So that’s a question for the Minister.

This is something that I brought up at first and second reading, because I was concerned about the over-regulation of these businesses. They can already be asked for this information at accreditation, post-accreditation, and, in some cases, every single year, because they are required to be accredited every year, like if you are a franchise or in a triangular employment relationship, you can be asked every single year. So the Minister has agreed that, yes, they can already be asked for that information. So why the need in this bill to lay out the fact that this can happen, if it’s already able to happen, as the Minister has just agreed to?

Well, we now come to the other end of the infringement notice exercise, which is the revocation of an infringement notice. It’s interesting that the serving of an infringement notice goes into some detail about how it should be communicated; I’ve raised questions about the inadequacy of that.

But when it comes to the revocation of an infringement notice, it merely says, in replacement section 235D(2), inserted by clause 21, that “The Labour Inspector must take reasonable steps to ensure that the person to whom the notice was issued is made aware of the … revocation notice.” Now, there’s no explanation as to whether that needs to be delivered to a former place of work by a person who might or might not be 14 or older or it may be someone who used to live at the same address as the person who might have been there before or it was to some electronic address, whether it’s a TikTok or an email or a Facebook or something of that nature. So I’m keen to know, from the Minister, why there is quite extensive drafting relating to the issuing and serving of an infringement notice, but when it comes to the revocation of an infringement notice, it merely says that the inspector “must take reasonable steps to ensure”. Surely there is a disparaging difference in status and requirements in that area.

I move, That the question be now put.

Thank you, Mr Chair. I’ve many, many things to traverse still, including the questions I’ve already asked that we’re waiting on the Minister to answer around the fact that Immigration New Zealand already have the power to do much of what she is asking from this bill.

I’ll move on to a different topic, though, and that’s around flexibility. We made the point at the first and second readings around flexibility in a tight labour market, whereby if you are an employer and you are trying desperately to ensure that you are covering shifts, especially if you work in healthcare—and I’ll give you the example of, let’s say, a retirement village or a rest home which employs nurses and must do so 24/7. If a nurse stays behind for one or two hours to cover the shift of the next nurse who’s running late or has called in sick and is waiting on a replacement nurse, that migrant worker may well be in breach of their visa by working that extra couple of hours to keep the people in that rest home safe and for the employer to be acting in accordance with the law.

So my question to the Minister is around: is it her expectation that there will be some flexibility with this regime in that replacement section 359A(1)(b) inserted by clause 7 if the migrant worker is working in an inconsistent manner with their work-related conditions of their visa by working an extra couple of hours because they were covering a shift? The bill is silent around the flexibility of the discretion of a desk-based officer to act in this case.

Another example might be a bartender who’s covering front of house for a shift. He’s not overdoing his hours, but just working in a different role slightly, because, as we know at the moment in hospitality, for example, they are very short-staffed, especially in certain regions of New Zealand like Wānaka or Queenstown, for example, and employers—good employers—are doing their best and employees, especially migrant workers, are more than happy on many occasions to do something a bit different. Now, if this came up from a desk-based officer and it seemed to be a relatively minor breach—but none the less a breach—what is the flexibility that the desk-based officer has in this instance when it comes to the infringement?

It would seem that these are very low-level breaches, but this is exactly what the Minister keeps talking about—getting on top of these low-level breaches. But these are examples that most people would think are perfectly reasonable for a couple of hours covering a nurse’s shift, for example, or a bartender quite happily covering front of house for the night when those staff are particularly stretched in that industry. So I’m keen to get the Minister’s views on that flexibility.

As I’ve mentioned time and again in this House, the point of this bill is for us to be able to nip low-level offending in the bud before it becomes severe offending. So a low-level breach wouldn’t be explained away through flexibility; it’s still a breach.

To the member’s question around the types of employers who may not be accredited but would still be subjected to the document production powers in this bill, there are examples where employers don’t go through the accreditation process that the member has outlined. A couple of examples there would be employees who are on specific purposes visas or events-based or Recognised Seasonal Employer (RSE) workers—employers of RSE workers—for example. That’s just a couple of examples given the member asked for some.

To Melissa Lee’s points around the documents that can be required, they are explicitly stated in the provision. So, specifically, employment documents that an employer is already legally required to hold, or can be expected to hold, under the law. Of course, only employers who have supported a visa application can be required to supply documents.

The other question that she had was around how businesses and employers would be targeted by Immigration New Zealand (INZ) and what the tools were that would be used to be able to do that targeting. INZ is developing a risk-based prioritisation process for verification and compliance checks. That’ll be part of the risk management for the Accredited Employer Work Visa scheme as well.

So verification checks will be done in response to specific reports. There is also intelligence that INZ receives based on specific sectors and specific industries where there is a lack of compliance, and so that is the information that will be used to undertake these proactive checks.

Thank you, Mr Chair. Well, based on that response—well, in fact, part of that response—I do sincerely hope the target of this bill is not specific purpose work visa holders, because it would just be getting weirder and weirder at that point. There are certainly valid concerns that our colleagues in the National Party have raised here regarding accreditation and what difference does this bill actually make, so definitely some issues there.

One thing the Minister said previously is that employers will have existing relationships with Immigration New Zealand, and therein lies one of the major problems here is that if you’ve got an employer who doesn’t have that relationship who is hiring migrants unlawfully, they’re going to be completely missed by this. And in terms of the other aspects for the high-level offences in the immigration system, they’re probably going to be missed by that as well. So I don’t think the issue of exploitation is sufficiently being addressed in this bill or in the immigration system because, ultimately—and this is one area I’d like the Minister to actually talk about—the problem here with exploitation is tying migrant visas to employers. That was required under essential skills back in the day, it’s required under the accreditation system—an Accredited Employer Work Visa. From our party’s perspective, we should be doing away with these sorts of visas.

But I would like the Minister to just reflect on that and give her opinion on that, because to solve a lot of these exploitation issues, these abusive relationships between bad employers and good employees—or good-intentioned employees—would be solved if they could move around freely and weren’t beholden to that employer. I do have another few questions, but I’ll leave that section there.

Thank you, Mr Chair. I just want to put on the record the Minister’s comments before to my questions around flexibility, when I mentioned, for example, a nurse is running a couple of hours late and a migrant nurse covers that shift for two hours and that puts her over her number of hours for the week. The Minister has very clearly stated tonight that it is her absolute intention that every low-level breach, if it is found by a desk-based officer when they are going through these records, an infringement notice will—well, I asked the question, “Is there any flexibility?”, and the Minister said, “It is to nip these types of things in the bud; it shouldn’t be happening, and if it’s found then they will be nipped in the bud.” So my understanding from that comment is that if a desk-based officer finds that a migrant nurse has worked over her hours by one or two because she was covering a shift for another nurse who was running late, then that will result in an infringement offence, and an infringement notice on that employer who was just trying to do the right thing. So if I’m wrong in that and there is some leeway, and it doesn’t necessarily always end up in an infringement offence because there is some flexibility by the desk-based officer to not issue that infringement notice, then I’m happy to hear that, but from the Minister’s comments about “nipping all of these low-level breaches in the bud no matter what the circumstance”—then I’d be happy to hear that.

I want to talk about the—just carrying on from what my colleague Melissa Lee has been talking about, we’ve had a problem the whole way along in this bill around the fact that there are no reasonable grounds for requesting these documents. Now, many submitters—we’ve traversed this already in the second reading—also made that same argument and they did say that this would end up in fishing expeditions. It is stated in the departmental report though that it says “Immigration New Zealand will develop a process that prioritises high-risk employers for desk-based requests.” So things like triangular business models, franchises, industries with high-risk or historical issues, so there will be a process to prioritise these high-risk employers. And our point all along, and my point tonight, is why is it that we can’t have that in the bill specified that the reasonable grounds will be based on these high-risk employers that we already know about—the triangular business models, the franchises, the higher-risk businesses with historical issues around migrant exploitation—rather than “You can do anyone, anytime, anytime you like”? Because what is to stop a desk-based officer going after the same employer every single month for 12 months? There’s nothing in the bill that stops them from doing that. It could be a weekly or monthly request for this low-level offending.

So my question to the Minister is: why is it that there was no leeway at all, even though Immigration New Zealand have said that they will develop a process to prioritise these high-risk employers that they already know about? If that’s the case, then why not just write it into the bill so we have some reasonable grounds clause so that we don’t get exactly what my colleague Melissa Lee was talking about, which is, for all intents and purposes, a fishing expedition?

So a couple of things here. To the points that were raised around migrants being employed unlawfully who won’t be captured by this bill, that is correct. As I’ve said already in the House time and time again, this bill does not claim to be a silver bullet that will end migrant exploitation. The point of this bill is to nip lower-level offending in the bud before it becomes severe offending. There are other ways in which other unlawful activity can be captured and dealt with. For example, as I’ve mentioned again at least five times in the House tonight, section 277 allows search powers for higherlevel offending to be captured and dealt with. Again, it’s about striking that balance between ensuring that employers can fill genuine skills shortages but ensuring also that migrant workers are not exploited. This is one measure that we’re taking to be able to do that. Our Government has brought in a series of measures to tackle migrant exploitation from various angles, and that is what is needed because there is no silver bullet to end this.

In terms of flexibility for nurses, this is exactly the problem with using hypothetical examples, because migrant nurses, for example, don’t have working hours as part of their visa conditions. So the example that the member provided cannot actually happen. So I will go back to the point that I made: that low-level offending often becomes severe offending. The tools that we are wanting to give immigration officers and the Labour Inspectorate to align those powers and tools is to ensure that we can nip lower-level offending in the bud, and that’s what this bill aims to do.

In terms of high-risk industries or companies, that is correct: there is, as I mentioned already previously, immigration intelligence that gives Immigration some sense of where the high-risk behaviour happens. So they are developing a risk-based prioritisation process, as I mentioned. The reason there’s no necessity for reasonable grounds in this legislation, again, as I have said on multiple occasions in this House previously, is because the document production powers of this bill enables reasonably unobtrusive powers, because all they are doing is requiring employers to show documentation that they already have to hold legally under the law. So it is not an obtrusive power of search entry, but it’s just one of showing the records that you already need to hold if you hire a migrant. So there’s no need for reasonable grounds; that would preclude us from being proactive in terms of compliance.

In that case then, just taking the example out of it, is there, in the Minister’s view, any case where a desk-based officer finds a low-level breach that is relatively minor that is—let’s say a couple of hours, or, like I mentioned, covering a slightly different job when that particular business was very short-staffed. Or does she expect that every single breach, when it is found, will result in an infringement offence? There’s nothing in the bill to suggest that there is any ability for the desk-based officer to not issue an infringement notice when they may decide it is extremely low-level and no one was harmed and everyone was happy, and it was just a one-off. Is it her expectation, and I’m sorry to labour the point and get her to keep repeating herself—I know she’s getting a bit tetchy about that—but I am just trying to understand, is there any case that she would expect a desk-based officer not to issue an infringement notice, or is she expecting that in every single case that is found that an infringement notice will be given when a low-level breach is found?

So that’s the question, I just want to know if there is any situation where she would expect that desk-based officer might not issue an infringement notice, or is it a hard “You find the breach no matter what it is and you issue an infringement notice”? That’s all I’m asking; we just haven’t had that answer yet.

CHAIRPERSON (Greg O’Connor): Ms Stanford, I’ll just say you’ve given yourself up a little bit about asking the same question several times, which is of course a cause for a closure motion. However, I’ll pass over to the Minister. Just to advise you.

Just a very quick, slightly different question. So the Supplementary Order Paper as drafted prevents an immigration officer from using documentation to the detriment of a migrant. We’ve established that. So my question then is: say that migrant has come from a country that requires assessment in Porirua, requires a national security check, and that has been done in the past—I won’t name the countries that that applies to because it’s actually not public information, get myself in trouble. But say that’s happened—say they pass the national security check and then say they’ve been involved in one of these businesses that’s been investigated and had documents searched. Now, that won’t be used against the migrant necessarily under the Immigration Act, but can the SIS request that information? Can that cause issues for their compliance in that regard? I’m just curious about that.

I move, That the question be now put.

Thank you very much, Mr Chair. I’m sure you won’t regret it. I’m hoping the Minister will, though—no. It’s a good face question—excuse me, a good-faith question, even. It could be a good face question too, but viewers of Parliament TV might disagree.

Anyway—so my question relates to clause 10, inserting new section 383A, “Publication of names and information in respect of immigration offences”. So my question is reasonably straightforward, I think, but an important one nevertheless. So this is talking about how the chief executive, in order to promote the objects of the Act or to do the things that we want this legislation to do, or that the Government wants it to do, can publish the information specified elsewhere, which I’ll get to, in relation to an employer who has been convicted of an offence against the Act or issued with an infringement notice. So I suppose there’s an element—and the policy intent—of saying: well, if someone’s done something wrong that infringes the Act, then it’s fair that the whole world should know about them: their name; their trading name, if different; and so forth.

My question to the Minister is whether this is still something that can take place if there’s been a conviction under the Act, but if that’s being appealed. So if there’s an appeal in front of the courts, where a person might say, “Well, actually, you know, I’ve got a good reason to appeal. I’m saying that I shouldn’t have been convicted.”, can that person’s name be publicised as though they had—or, indeed, recognising that they had at that point—been convicted? Of course, once you publish something, the whole world knows and it’s very hard to get that toothpaste back in the tube, those worms back in the can, and other reverse clichés like that. So that’s just my straightforward question and indeed my only one, pending the Minister’s answer, of course.

I want to give the Minister some time to just make some notes and answer the questions. I notice that there’s nothing—this is a different point—in the supporting commentary of this bill around getting Immigration New Zealand to commit to processing a variation of conditions, changes, more quickly to help reduce migrant exploitation. And I’m wondering if the Minister would consider a change in the supporting commentary that would state that Immigration New Zealand would commit to fast processing of variation of conditions to help reduce migrant exploitation. Because that’s one of the key drivers of getting migrants out of exploitation; it’s actually to get the conditions of their visa changed really quickly so that they can move out of the situation where they’re being exploited and on to another employer. Nothing in the supporting commentary of this bill commits to that, and I’m wondering, if we were to do a quick Supplementary Order Paper, whether or not the Minister would support putting something in the supporting commentary to state that Immigration New Zealand should commit to quick processing of those variation of conditions.

Thank you, Mr Chair. Just going back to the question that I did just before the dinner break, which was answered just after, around the adverse actions. My question was just around “versus just actions”, whether that was open to interpretation. Now, the Minister has addressed that and has spoken about MEV—so migrant exploitation visa—saying that the MEV may be offered or the information won’t be used to prejudice the migrant. But to establish a dialogue and say to them, “OK, here’s an option for you. Have you considered this?”—but therein is another problem, because how do we ensure that that will happen? You know, is there scope, does the Minister think, to include something in the bill here? Whether it’s another Supplementary Order Paper (SOP), to ensure that that happens, to ensure that the migrant is protected and not prejudiced, perhaps an amnesty period of some sort or just a commitment to go down that MEV pathway because some immigration officers do get a bit gung ho—and all we have to do is look at the IPT, the Immigration and Protection Tribunal, and the sheer number of decisions that get overturned; I believe it’s close to half. And the reason is that Immigration instructions have not been correctly interpreted or followed by immigration officers. So there are certainly still issues here.

I would also want to inquire into the longer term. When a migrant goes to renew their work visa or get a different work visa, can that information be used then? How can we be sure that it won’t be used then and that they won’t get pinged under this regime based on history? You know, the SOP says that they can’t be negatively affected. But is she absolutely confident that they won’t be in subsequent applications?

So to that last point around how we ensure that the migrant worker is protected and that information that is released inadvertently that might otherwise prejudice subsequent visa applications of the migrant worker, that is exactly why there’s a Supplementary Order Paper to strengthen the primary legislation. So the other way that we could have done that is through Immigration instructions. But my sense was that that wouldn’t provide strong enough or robust enough provisions, and that’s why we’re changing the legislation to reflect that. That is pretty much as strong as you can go in terms of protecting the migrant, from my point of view.

In terms of low-level breaches, again, this is a question that’s come up repeatedly, and I feel I have addressed it on multiple occasions: a low-level breach is still a breach. Who determines what is minor? Who determines—the whole point, as I’ve said again, ad nauseum, in the House, is that the point of this bill is to address low-level offending. So then being flexible around that very low-level offending has the potential to lead to the problem that we’re trying to fix, which is that low-level offending often turns into severe offending and we only have tools to address that currently. So we’re trying to take it back.

In terms of variations of conditions, I agree that there are many ways in which we need to address migrant worker exploitation—again, a point that I’ve made a number of times tonight. But what I will say is that we have undertaken a suite of measures that sits technically outside of the scope of this bill. But I will say that the Migrant Exploitation Protection Work Visa is one way in which we can help migrant workers who’ve been exploited to get out of that situation.

I move, That the question be now put.

I will indicate to the committee that this will need to be new business. We’ve covered a lot of ground tonight.

It will be the first time, actually, that I’m asking a question on this part.

CHAIRPERSON (Greg O’Connor): Well, just because you’re asking it for the first time, this doesn’t mean others haven’t asked it—that’s all I’ll say.

MELISSA LEE: No, no. Mr Chair, the Minister has not actually addressed this part, so I would like to ask, if I may, sir. I’d like to look into the area of replacement section 365B, “How infringement notice may be served: employers”, in clause 9. I know that my colleague Scott Simpson has actually asked and made some comments about how it may happen, and perhaps the officials may assist the Minister. It’s replacement section 365B(2)(e). Often infringement notices are issued to the person by way of a letter, by serving it to the person, or, potentially, leaving it in a place of residence, but the thing is that this particular section talks about “sending it to an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand.”

I’m not going to talk about what Scott Simpson talked about. I know he sort of said what does it actually involve, but what I’m actually curious to find out—in this day and age, there are a lot of people who use technology. There are many forms of electronic addresses. Does it only mean an email address, or does it actually include the other forms of identity that we talk about?

In this House, we even passed a digital identity facilitation bill to facilitate people being able to properly identify who they are online so that it is reducing the fraud situation. So I’m trying to find out if there’s a way that the Minister has figured out how this electronic address—or is she just looking at one form of address? Could it be Facebook, could it be Instagram, or could it be something completely different, or utilising the digital identity providers, for example?

I move, That the question be now put.

Motion agreed to.

The question is that the Minister’s amendments to clause 4 set out on Supplementary Order Paper No. 360 be agreed to.