Immigration (Mass Arrivals) Amendment Bill

We come first to the Immigration (Mass Arrivals) Amendment Bill, and we begin with the debate on Part 1. Part 1 is the debate on clauses 4 to 6, “Applications for visas and entry permission”. The question is that Part 1 stand part.

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

Leave is sought for that intention. Is there any objection? There is objection.

Thank you, Madam Chair, and good evening to all members of this committee of the whole House. Representing my colleague and friend Erica Stanford in relation to this bill, I make just brief comment on the nature of Part 1, and, of course, I look forward to the discussion by members who are minded to contribute to the debate.

The spirit of Part 1 is very much around providing clarity where it does not currently exist in the Immigration Act. This is reference, of course, to the situation of what we call mass arrivals. So clause 4, then, is going to amend a situation where it’s currently unclear whether members of a mass arrival group would be considered passengers. So just to define “passengers” in distinction from a group of mass arrivals, and that would go to, for example, the question of whether there were a rescue at sea and whether those human beings who were involved in that might be regarded as passengers or not. Therefore, the implications for that we’ll see in further clauses, because, of course, the treatment of those within a mass arrival group is deliberately and significantly and importantly—but still humanely—different from those who are making an individual arrival and are able to apply for and, indeed, are required to apply for visas on their own individual terms.

Clause 5: again, there is a lack of clarity currently about whether members of a mass arrival group have the ability to apply for entry permission and a visa. They will, under this bill, have the ability to do so under clause 6(1), which is amending section 103(1) of the principal Act by inserting new paragraph (daa). That will oblige them to apply, and then the following clause, which is also amending section 103, will state that, effectively, if they haven’t applied, then, nevertheless, they can be treated as though they had. It would be an anomaly to, essentially, privilege a mass arrival group in the event that they hadn’t actually applied, and therefore had been denied such permission. So, with that, I welcome our discussion on Part 1.

Thank you, Madam Chair. I acknowledge that this is the first time the Minister’s in the chair on a bill such as this. This is the bill that was started by the previous Labour Government—in fact, this is the Labour Party and the National Party colluding to diminish the rights of asylum seekers. Quite frankly, I’m yet to see the Labour Party come with a critical analysis of this bill and I look forward to their own contributions around the justification for a rights-diminishing bill.

I was keen, in Part 1, to touch on the “mass arrivals” definition, because one of the key pieces of feedback that we received from human rights advocates, from people who work directly with refugees and who work with asylum seekers was around the concerns around creating, effectively, two tiers of asylum seekers who have, effectively, different treatment by the system. So you would have the people who would be arriving, say, by plane, and then you would have, in this bill, a categorisation of people who would be arriving by boat.

It’s difficult to not obviously allude to what’s in Part 2, because Part 1 is about creating that category, but then it’s about how those people get treated once they arrive. So I’m curious to understand, particularly since the Minister in the chair is new to this Government, what level of engagement he has had in this role since taking on the role with human rights advocates around, effectively, this notion that there’s now a kind of two-tier system around how asylum seekers would be treated by the system, and whether he himself has actually engaged with human rights advocates, with people who work with asylum seekers, on this concern that has been raised in the select committee stage.

So that’s my first question. I have other questions around the ability for the system to cope with mass arrivals per the definition used in this bill, but I’m really keen, first and foremost, to hear from the Minister around the level of engagement he’s had with the sector, and particularly concerns around the two-tier categorisation of asylum seekers.

CHAIRPERSON (Barbara Kuriger): Ricardo Menéndez March.

RICARDO MENÉNDEZ MARCH: Righty-o. So I’m looking forward to the Minister taking notes and, again, looking forward to some critical engagement from the Labour Party on this issue, seeing as they raised some concerns. You’re welcome to engage on this bill, so I’ll allow the Minister to take some notes and get ready for his reply.

But one of the other things that I particularly wanted to unpack was the evidence that he had seen around whether this bill was actually needed, because, obviously, the bill identified in Part 1 the need to create a specific categorisation of people arriving by boat. One of the key debates that has been playing in the media and, actually, that people who work with asylum seekers have raised time and time again has been the issue that, actually, the Government and successive Governments haven’t actually been upfront with the public around the need for this legislation. In fact, this is something that other parties that are now in Government and the National Party in Opposition raised as a key concern, around the need for this legislation in the first place.

One of the key concerns that has been raised by human rights advocates, by people who work with asylum seekers, from former refugees themselves, was the fact that if there were concerns around a large group of asylum seekers coming in, then one of the key priorities could have been resourcing the judicial system to ensure that they could be processed. Instead, we’re creating this whole other categorisation in Part 1.

So I’m also keen to get a sense of the evidence base for this bill, and particularly the evidence base for the need to create a categorisation of mass arrivals and whether this is based on evidence, or, say, for example, fearmongering and dog-whistling. If the Minister does have evidence around this, will he be able to finally, for once—because the previous Government wasn’t able to do that—present the level of evidence around the need for this legislation and the categorisation around mass arrivals? To be honest, this idea that this is simply a tidy-up or closing some loopholes around, for example, people arriving by cruise ship etc., isn’t good enough, because Part 1 isn’t in isolation; we’re seeing this in Part 2 in terms of the rights-diminishing stuff.

So I haven’t got an answer on the stuff around engagement with the sector. I’m reiterating the need for the public to have confidence that this bill is based on evidence, and particularly the concerns that have been raised by many stakeholders around a two-tier treatment of asylum seekers.

Thank you, Madam Chair. I thank the member for his engagement, and, indeed, I know he has been diligently engaged in the legislative process. In terms of my own engagement, I think, in addition to being able to point to the excellent advice that I have received along with other ministerial colleagues in relation to this which reflects their close attention to the legislative process, obviously I’ve made myself aware, in preparation for this exercise, of some of the key arguments in relation to human rights aspects particularly. These are the issues, of course, that have rightly been raised at the select committee process and also, more recently, in a letter from representatives of a number of different civil society groups, many of whom I have great respect for. I cite, for example, the Refugee Alliance, English Language Partners, Asylum Seekers Support Trust, Aotearoa Resettled Community Coalition, and the likes. That’s a letter addressed to Minister Stanford and Associate Minister Costello, but, nevertheless, between that and the reply made by Casey Costello, obviously I’ve taken note of those and some of the arguments.

I acknowledge, for example, the argument that it would be desirable for the situation of a mass arrival group to be monitored by some independent authority, and the letter from Casey Costello did, of course, point out that the Ombudsman already has this role. There is independence in the role of the Ombudsman, being an Officer of Parliament, and therefore constitutionally separate from the Government of the day. That’s a long-recognised and exercised role that that person has and, as I say, does carry out in relation to other situations of detention, if I can just use that word more broadly for a moment.

Likewise, I’ve been engaged, and, importantly, the Government as a whole has been engaged, in other concerns and questions raised by groups of civil society and advocates for those who might be in a mass arrival group situation—for example, around consistency with the New Zealand Bill of Rights Act; also, in relation to international legal obligations; and if I think about particularly—or at least in the starting position—access to legal justice, access to legal advice, access to representation, the ability to have one’s time in court. Of course, there is nothing in this bill that precludes that, and, indeed, it’s the case that with the extended time frames that are being allowed, actually, a quality of representation is more likely to be provided within that four- or seven- or 28-day time frame, as the case may be, because there would be opportunity for proper advice to be given for the judge deciding how to rule in the case of the situation of the mass arrival group. They can do that in the time frame really that is needed and not make a rushed decision that actually might be to the detriment of the mass arrival group.

So, for all these reasons, I hope the member will agree—whether or not he agrees with the conclusion that I’ve reached and that the Government’s reached on the submissions made by such people—that I have and we have engaged with the substance of the arguments that have been made. I would just point out in relation to what’s characterised as a two-tier system. I mean, admittedly there is a distinction, a discrimination—but not, I would say, in the ugly sense of that word. But it’s a meaningful distinction based on the fact that a mass arrival inevitably would be by sea because it’s not possible physically, in most modes of transportation by air, to have arrived in such a large group after such a long period of time. The fact of a large group and the fact of a long period of time at sea would indicate a particular vulnerability and a particular set of characteristics of a mass arrival group that would make it appropriate for them to be treated as one whole entity—albeit with individual circumstances needing to be taken account of within that.

Likewise in terms of some of the complex needs that one might have after some weeks at sea. Of course, if they’re arriving in New Zealand, our geographical isolation being what it is, inevitably it would be after quite some time that they’d been away. So the requirement to house them in a way that would be secure—but not in prison-like conditions, I hasten to add—is a characteristic particularly that belongs to mass arrival groups that would not attach naturally to smaller numbers of individual humans arriving by some other method. Madam Chair, if I am able to continue?

CHAIRPERSON (Barbara Kuriger): Yes—the Hon Chris Penk.

Hon CHRIS PENK: Thank you. Then I will simply answer what I think was the final point that the member had made in which he was seeking response, which is around evidence. Of course, it is difficult to provide evidence of the need of something that hasn’t happened. And by the time it’s happened, it’s too late and we can’t be legislating in urgency within in the 28-period that’s now going to be allowed. It’s always unexpected that there would be mass arrivals—it’s not an everyday event—but one doesn’t expect the unexpected, by definition, but, of course, one has to be prepared for it.

So, to provide a mechanism whereby, in that worst-case scenario, there is a legal mechanism safely to provide a reasonable process, humane conditions, and sort of a maximum extent of additional time, seems, to us, a sensible precaution. Noting, of course, that within those time frames it’s still the case that the cases would need to be decided as soon as possible, just with extra time should it be needed.

Thank you, Madam Chair. I’m looking forward to speaking to the amendments in Part 2 of the bill, and we’ll have a few things to say about the content of the Government’s Amendment Paper. I’ll also be bringing to the committee three additional amendments that have been developed in conversation with the former refugee and human rights community over the last few weeks. And the committee will see proposals that that community has made to improve the bill. I’ll be speaking to those in in Part 2.

But I did want to say, at this point in the debate, that Labour is supporting this bill, because the prospect of a mass arrival is a low-probability event—probably a very low-probability event—but not a no-probability event. And the experience of a large steel-hold vessel carrying a large number of asylum seekers arriving in Canada and the more recent experience of, again, a large vessel making its way towards New Zealand, that rather spookily disappeared off the radar screen, is enough evidence to suggest that New Zealand could, one day, face a mass-arrival scenario. And it’s in our interests, as a country, and in the interests of asylum seekers who did arrive in that kind of scenario that there is an orderly and humane system in place to deal with them.

There are questions to do with security. There are questions to do with the health of the people who are arriving and, most importantly, that their legal rights are respected, and that due process and legal representation are provided for with enough time and in a way that all of those matters can be dealt with in an orderly way. That’s why we’re supporting this bill. If it wasn’t for the four substantive additional safeguards that are contained in the Minister’s Amendment Paper, we would not be supporting it at the committee stage.

Ricardo Menéndez March: Your party introduced this bill as it was. Come on! Fuck. You voted for the bill without those amendments.

Hon PHIL TWYFORD: I’m not sure—[Interruption] I’m not sure I can ever remember someone who has displayed such incredible self-righteousness as what I have observed in the Chamber this evening from that member. I’m absolutely stunned at the display.

CHAIRPERSON (Barbara Kuriger): The Hon Phil Twyford, I don’t think we’ll start making comments to other people of a personal nature like that, but you’re very welcome to carry on your speech about the legislation.

Hon PHIL TWYFORD: So I look forward to the rest of the debate, but I wanted to make it clear that that’s the basis on which we are supporting the bill. Notwithstanding what I’ve said, there is an argument to be had simply about the notion of detaining asylum seekers. We have an obligation under international law to treat asylum seekers, convention refugees, just as humanely as we do quota refugees who come here through the United Nations High Commissioner for Refugees. Their rights are clearly set down under international law that we are bound by. And what’s important about this debate is, I think, for us to do some soul searching about the safeguards and the protections that are built into this legislation to ensure that people who are being deprived of their liberty suffer the minimum necessary detention, that the conditions of treatment and detention are protected and independently monitored, and that all of the administration of the system that’s been put in place is subject to appropriate judicial controls. And those are the matters that I look forward to debating in Part 2.

It’s interesting what the member Phil Twyford, just now, from Labour calls self-righteousness. It’s actually the views of human rights advocates, asylum seeker - led organisations, and, literally, I would challenge any member in this House who is supporting this bill to name a single human rights advocate or organisation that works for refugees or asylum seekers who is supporting this bill.

Let’s make it clear: the bill as introduced was introduced by Labour, so Labour are now saying that they no longer support it without the amendments is them realising that there’s no single organisation that works directly with refugees and asylum seekers who submitted on it who say that this is a good bill. In fact, a large number of organisations who work with the people impacted by this bill question the need for this bill. So my question to the Minister, because I thought this was about not just platitudes but about actually questioning the Minister, is: can the Minister name specific groups that he may have engaged with since taking on the role, because I do make the distinction—right? We had the select committee stage under the previous Government, and I’m keen to understand the change in tone and position from the National Party as it indicates to me that perhaps there was some engagement or further information. So was there a specific stakeholder organisation—a human rights advocate group that works directly with people—who told him about the need for this bill?

The second part was that I want to pick up on the comments. The Minister in the chair talked about and acknowledged how this bill does create discrimination—I mean, he used the word—and I’m curious to know whether that discrimination is rights-diminishing, because, ultimately, we are creating completely different ways of processing asylum-seeking claims. One of them includes, basically, detention and has a quite a specific set of rules, effectively, about how that’s going to be carried out. So is he sure that, for example, that level of discrimination that comes from creating a whole definition around mass arrivals doesn’t risk actually compounding harm for the people who he himself actually recognised come from experiences that none of us could have ever imagined—or most of us, I think, would never imagine? We’ve certainly had former members of Parliament who have gone through those experiences, some of whom were actually from the Labour Party, who I could see were quite upset at the time when the bill was introduced.

But I would say that it’s important for the Minister to make it clear as to whether he thinks that additional discrimination for people who are fleeing genocide or who are fleeing some of the most harrowing things one could ever imagine are actually rights-enhancing or rights-diminishing, because I know that he talked about the ability for the system to process asylum-seeking claims. I do have some questions in Part 2 more specifically to that. But, ultimately, the premise of this bill is about the chicken and egg situation: is it about needing to create a whole mass arrivals definition, or is it about resourcing, for example, the community organisations and the judiciary, who are the ones who can ensure that those asylum-seeking claims can be processed quickly?

Hon Shane Jones: Security—safety.

RICARDO MENÉNDEZ MARCH: And I hear Shane Jones doing his usual kind of parrot-style—he just yelled across the Chamber about safety. But the Minister himself couldn’t actually elucidate specific risks or evidence that created the need for this bill.

I think it’s not good enough to just have the Minister say, “Look, at one point maybe we will have a mass arrival in the future.”, and, if so, if there’s no specific date line or no specific time that we think those are going to increase, there’s therefore plenty of time to actually do all the other things that the Casey report talked about and that human rights organisations talked about. So if there is no imminent great risk of mass arrivals coming, then the question is: why didn’t the Government can this rights-diminishing bill and do the right thing by working directly with the organisations who work with asylum seekers and who work with former refugees?

I would encourage the members from the Government who are just doing seal clapping to take this bill seriously, because it affects the people in our communities who have actually lived through the absolute worst, most harrowing experiences in their lives. I look forward to the Minister actually presenting us with a bit more robust back-up around why this is required and—most importantly—giving us the guarantee that the discrimination he mentioned won’t be rights-diminishing.

Thank you very much, Madam Chair. I believe, on the subject of engagement, I’ve referred to the discussion that’s been had effectively through the excellent select committee work in relation to this. And, as I say, Government Ministers, including the Minister of Immigration herself and both associates, including me, have been made well aware of the views of certain groups that have written in, and, as I say, in the case of our colleague and friend Associate Minister Costello, have responded to that. I’ve given an example of some of those discussion points back and forth.

In terms of whether the distinction between a mass arrival group and individual arrivals is reasonable, I believe it is. I believe that it’s proportionate, but also more particularly that it recognises the particular complexity of the situation that mass arrival groups face. Again, that goes to numbers, it goes to length of time prior to arrival. There may be health conditions associated with those periods of time spent at sea and so forth. Of course, whether the measures and the particular time frames, for example, are proportionate and reasonable is the subject for debate under Part 2, because, of course, that’s where those provisions are contained.

And in relation to whether human rights are diminished by the measures of the bill, of course in any human rights discussion it’s necessary to consider not only proportionality, which I’ve already referenced, but the balancing. So we’re balancing, yes, issues of security, geopolitical matters that may feed into the likelihood of such situations arising. Of course, it’s impossible without a crystal ball to know exactly what that may entail at what particular time, but suffice to say the issues arising in the South China Sea and the Pacific Ocean—the Asia-Pacific region—tend to be getting more complex, not less. I simply make the point that I don’t know when my house might burn down by fire, but I’m going to get insurance anyway. I think that we need not to be able to predict with exactitude the nature or timing of an event to be wanting to prepare ourselves against the possibility of it happening.

Of course, though, we talk about rights in relation to human rights but also responsibilities too, and so the responsibility of the State to ensure that we have humane and appropriate processes must be seen as a relevant consideration, alongside the rights that, of course, all humans enjoy, regardless of immigration or refugee status. And I think this bill strikes a good balance on that, and I think in Part 2 we’ll be able to have a good conversation about exactly where those lines are drawn.

Members, the time has come for me to report progress.

Progress to be reported.

House resumed.