Immigration (Fiscal Sustainability and System Integrity) Amendment Bill

Good morning, members. Members, the House is in committee on the Immigration (Fiscal Sustainability and System Integrity) Amendment Bill. We first come to Part 1. This is the debate on clauses 4 to 54, “Amendments relating to system integrity”. The question is that Part 1 stand part.

Thank you, Madam Chair, and thank you for inviting me to open the discussions about the bill. I’m happy to have the opportunity to talk with the Chamber today about the proposed changes and how they fit with the Government’s objectives and how they fit into our objectives around ensuring regulatory systems work well in committing to action against migrant exploitation.

We have introduced this amendment bill. It represents a significant step forward in ensuring our immigration system is fit for purpose. The reforms have been shaped by extensive consultation with legal professionals, employers, and immigration experts. More importantly, this bill responds to a couple of very important reviews, the Casey KC review and Michael Herron KC review that were commissioned under the previous Government.

In fact, there are a number of things in this bill that were started under the previous Government. Work was done; it was good, sensible work that we’ve carried on with and has resulted in this bill, which is why I think there is broad support across the Chamber for many of the parts. I look forward to debating the number of points that were raised in second reading speeches yesterday.

Thank you, Madam Chair, and great to see colleagues here all so bright eyed and bushy tailed, at 9 o’clock on Friday morning. We look forward to a very productive committee stage.

As I said last night in the second reading, Labour is supporting this bill for two main reasons. We think it does two important things which are significant at this time. That is, it makes an effort in a number of areas to sort of strengthen and put in place some useful reforms in the immigration system that we think will make the immigration system more effective in dealing with the various challenges that it has. But also, it’s important at this point in time, I think, in maintaining public confidence in the system, giving New Zealanders the assurance that through the democratic process they control our borders, and that the system is fair and reasonable and in tune with public expectations. Secondly, it strengthens, in a number of key areas, our adherence to human rights standards through introducing judicial oversight, and particularly in relation to the detention of asylum seekers and in the introduction of electronic monitoring, which, in the immigration space, is a new thing.

There are nine discrete initiatives in this bill and it’s our intention to address all of them. We want to have a good exchange on all nine of those. They are all discrete policy initiatives, and they all demand proper scrutiny through this committee stage process. It’s our intention to work through sequentially each of those nine initiatives and have a good debate and a good exchange on all of them.

I wanted to start with the question about the definition of “mass arrivals” in clause 5. Clause 5, section 9A amended, new subsection(1A): “A group of people arriving on board a group of aircraft are a mass arrival group under subsection (1)(c) if the aircraft arrive within the same 24-hour time period.” This is one of the key elements of this bill: expanding this initiative. The Minister of Immigration, and officials, told the committee that it was in response to some changing international occurrences where there have been cases of people smugglers, effectively, purchasing seats on commercial aircraft. I don’t think we need to kind of rehash the whole mass arrivals legislation that we have now, but it’s designed to expand that definition which hitherto has basically been based on the idea that people would come on a ship or a boat.

We had quite a bit of discussion about that at the Education and Workforce Committee, and the committee recommended to clarify that people arriving by air on separate services would need to arrive within a period of 24 hours in order to be captured by the definition. That was really to avoid a wide grouping of different, disparate aircraft arriving and somehow that being interpreted to mean a mass arrival.

It is worth, I think, digging in a little bit on this question around the definition of a group of aircraft, and I’d be interested to hear from the Minister about how she interprets that and perhaps the officials’ view. Does that mean a group of aircraft have come from the same point of embarkation, same country? Does it mean a group of aircraft where the same people smuggler has booked seats on different aircraft? What precisely does it mean to say a group of aircraft, or is it a group of aircraft that happen to have come just by definition within this 24-hour time period? I think that’s worth exploring and I’d invite the Minister to respond on that.

Thank you, Madam Chair. We too want to spend a little time on the committee of the whole House stage for this bill because this is quite a technical bill and there are a lot of different parts to it. I want to start with clause 4. I want to first start with the definition of “first available craft”. Now, it is good to see that the Education and Workforce Committee has included a consideration in there for those who have applied for either judicial review or a tribunal determination. I think submitters are right to point out that the previous version, of the person having no further rights—which is paragraph (b)—is problematic, particularly if someone does have those live applications going through, which will be inconsistent with section 27(2) of the New Zealand Bill of Rights Act.

What I’m interested to know from the Minister of Immigration is that, in this part, the person has “applied for leave to bring judicial review proceedings within 28 days after being notified”, but, if you look at the website, particularly the Ministry of Justice website, it allows for not only the person being notified but also a representative of the person being notified—because, for example, when you apply for judicial review, particularly in these cases, often it won’t be just simply the person; they could be a representative of the person, a lawyer, an immigration adviser, etc., etc. I’m curious to know why, despite what is on the Ministry of Justice website, the bill itself doesn’t allow for a representative being notified. I do want to ask the Minister to consider my amendment, which also includes that a representative of the person also be allowed to be notified, unless the Minister is able to confirm that in clause 4(1), under (aa)(i), the phrase “after being notified” also implies a representative of the person—in which case, everything is covered, and that’s fine.

I want to now speak to my second amendment—and second point—which is still under the definition of “first available craft”. Now, we’re looking at under paragraph (d), which is “the deportation or turnaround of the person from New Zealand will not contravene section 164” of the principal Act. Section 164, essentially, talks about limitations on deportation. I want to check with the Minister: if section 164 is mentioned, why is section 166 not mentioned, which also has limitations on deportation? In this case, section 166 is a limitation on deportation for diplomats. Does that mean that section 166, for example, will never be, in any instance, captured by this bill or by this definition? Again, if the Minister could clarify, that will help, but I do have an amendment on that, if the Minister wouldn’t mind considering it.

Finally, I now want to discuss the definition of “irregular entry into New Zealand”, and I have another tabled amendment on this. This is paragraph (f), which is “the person has been assisted to enter by smugglers”. Now, I’m hoping that the term “assisted” implies that the person would have been, I guess, smuggled voluntarily, as in they agreed or have agreed to be assisted by the smuggler. That wording is vague and, potentially, could be arguable; so it’s just a very simple amendment, which is that “the person has been assisted to enter by smugglers willingly”, as in it is not involuntary smuggling or human trafficking. Again, I ask if the Minister is able to clarify that. There is an amendment, but if the Minister is able to clarify that it is satisfactory, we can leave that amendment. Those are my three questions to start with.

Thank you, Madam Chair. In the House last night, we had quite a good debate and I think it’s very clear that all sides of the House want to uphold the human rights and liberties of the people who, unfortunately, find themselves as asylum seekers. There was a bit of a divide. Interestingly, National and Labour agreed that this legislation is useful to uphold that, and I think the Greens thought it was a bit of a response to a moral panic situation. But what is very clear is we all want to uphold these human rights. As the previous speaker, Dr Lawrence Xu-Nan, has said, much of the devil will be in how this is interpreted in the courts, because this is, essentially, a system that is put in place to enable, hopefully, quite a streamlined judicial process so that there is fairness and certainty for the people involved. That is why it’s really, really important that we get the wording right and we don’t have unintended consequences.

I think this debate may be longer than the Government might anticipate, not because we don’t agree, but also because there is a 44-page amendment on the Table regarding electronic monitoring. Now, that is a good thing and I’m really pleased to see that the Minister of Immigration has responded to the Education and Workforce Committee, but that will take some analysis because when we’re talking about electronic monitoring or any other form of warrant or detention or judicial review, we’ve got to get the wording right.

I, too, will now turn to Part 1 and raise some other issues that have not been raised. One of them is in terms of section 4(aa)(i), inserted by clause 4(1), where it talks about judicial review. The reading of subparagraphs (i), (ii), and (iii) don’t quite make sense when read altogether. I have not got an amendment on the Table, but I’m wondering whether the Minister would be minded to simply strike out of the subsection, to leave out “(ii) applied for leave to bring judicial review proceedings after the prescribed time;”. It does not seem to add anything and it actually adds confusion to that paragraph.

In terms of the evidence for leave to bring judicial review proceedings, it would be good to know what level of proof is required for that. In section 4(aa)(i) when it says, “or within any further time allowed by the High Court”, that looks like a drafting constraint on the ability to take a judicial review, and I find that concerning. I wonder if the Minister could comment on that. Does she see that as a restriction of the rights available to those who would be affected by this clause? Would she be minded to take that out if it meant there was more certainty for that?

When we look to the next part, section 4(a), the question I have is around the words, “the identity of the person is unknown”. There are questions about whether that is a judiciable and objective test. The reason is it’s not very clear. We don’t know if that’s somebody who’s unable to get documents. What is the threshold of the identity of the person being unknown? Is it an absence of documents? Is it an inconsistency of documents? Is it a failure to be able to get the documents verified by a recognised New Zealand institution such as a District Court judge? How do the words interact with the refugee convention, especially Article 31?

My suggestion—I haven’t had time to do amendments, but I wonder if we could extrapolate that out to something like instead of saying the identity is unknown, just to suggest that there are three elements to that: there are no documents, and/or inconsistent documents, and/or those documents are unable to be verified. It is important because I have had constituents that I’ve dealt with who have been seeking asylum in New Zealand, coming from places like Syria, where there is a real question mark over the veracity of documents. We know that they are authentically seeking asylum, but the documents take a while to catch up. Some clarity around that would be really important.

I’d like to ask the Minister about the New Zealand Bill of Rights Act (BORA) and how any work that she has done—I assume a BORA report was done, but what are her views around how this all interacts with section 27 of the BORA regarding their rights to natural justice? Also, the processes for enabling access to courts and legal counsel, because if there isn’t access to justice then potentially, even though on the face of it this bill might look like it is upholding the BORA rights, it would be restrictive in terms of liberty rights under section 22 of the New Zealand Bill of Rights Act and limiting rights on arrest or detention for those seeking asylum under section 23.

I’ll go to questions now, but there are supplementary questions to ones that are raised by the Hon Phil Twyford and that is the meaning of “mass arrival”. It’s a good intention and it is tricky. One of the questions is a legal question about whether individuals can have their right to be treated individually under the rule of law observed if they are deemed to be in a mass arrival. That raises issues of legal, procedural fairness, such as whether they can get individual legal advice, independent advice, and interpreter services when necessary. What are the safeguards around that?

I do wonder if an easy and elegant way out of that—again, I don’t have an amendment; I’d be prepared to write one—is to simply add a bit of a mens rea element into section 9A(1A), inserted by clause 5, so that there is a common purpose. If a common purpose is attributed into that clause, I think, then, we don’t have to get into the granular kind of input evaluation of which flights they were on and when they caught them and so on. The very fact that there is a common purpose would capture the mens rea and would enable our officials to be able to do their job for the intended purposes of this bill.

When we’re looking at a group arriving on an aircraft, it would avoid making assumptions about things like mixed airlines, mixed routes, connecting flights, whether it’s from the time they boarded the aircraft, whether it’s the time that the aircraft took off, what happens if there are delays—all of those are really prescriptive and tricky. It would just be much better to have a deemed mens rea element in there. There could be a reasonable element or whatever; I’m sure the drafters would know the best way to do that.

The other thing I question is just the fairness about whether planes or boats are going to be treated differently, and, if so, how does that then interact with the New Zealand Bill of Rights Act in section 19, the non-discrimination of asylum seekers? We are now making a discriminatory reference of those who arrive by air versus those who arrive by boat. Has there been some analysis done to make sure that is in accordance with the New Zealand Bill of Rights Act?

There are some operational things, I think, too—I’m nearly done, Madam Chair—which are just around families being separated. We’ve got this magic number of 31, and I wonder what unintended consequences there might be if families are trying to separate themselves across different means of transport in order to circumvent the law, if that would be something that we would want to disincentivise because they’re already in a traumatic situation. The idea of children and parents coming in separately worries me. I also worry whether it will discourage people from seeking asylum.

Finally, just questions about the operational capacity at our airports. Has any work been done? It’s all very well having the legislation here—and I do think it’s a good piece of legislation. Do we have confidence that our airports and our staff at airports and our systems at airports will be able to deal with a large number of people coming in? We haven’t had to do that before in the circumstances, as far as I’m aware. We had the Tongan case, but I think that those people had already been processed and then were not able to leave, so that’s quite different. What impact would there be on airports? Those are my questions just for those first clauses, clauses 4 and 5.

I’m just going to take a couple of those. Some of the amendments have only just been handed to me and have only just been printed, so I’ll deal with those later. But in relation to the definition of a group of flights—and it’s pretty clear in the bill that it’s just flights arriving within a 24-hour period—there’s really no other definition that you need. “Have they arrived in the last 24 hours?” is the definition in the bill—it doesn’t matter where they came from—and “Are there 31 people?”

In relation to Ingrid Leary’s questions, some of them are a little bit out of scope. The definition of a “mass arrival” is not part of this bill—the overall definition. But the only change is “arriving on a flight”, and the question about the New Zealand Bill of Rights Act and whether it is discriminatory with them coming on a flight rather than on a vessel or a boat, is an odd question. It doesn’t matter how they arrive. I don’t think it’s got anything to do with the New Zealand Bill of Rights Act, which way they arrive.

Just in relation to the identity threshold: essentially, if we don’t know who they are, then we don’t know who they are, and it doesn’t matter if it is because the documents are fake or because they don’t have documents, or for any other reason. Once you start prescribing those things in the legislation, the unintended consequences are that it is too descriptive and we get ourselves all caught up. If we don’t know who they are, that is the definition of it that we’re using, and I don’t think it’s a good idea to start defining in law the types of conditions around whether or not we believe their documents or that they don’t have documents, or anything else. There’ll be unintended consequences around that.

Acknowledging that this is my first call and, as the immigration spokesperson for the Green Party, I just wanted to first note that one of the things that this bill does is that it does broaden who is liable for deportation, right? That’s also really important to make—even so, there are some components that we can, critically, get behind. It’s important to note that this bill isn’t about manaaki-ing people who are fleeing horrible conditions, but it also contains some contested components.

I wanted to focus on clause 4, on the definition of “first available craft”, which has a new point that hasn’t been addressed yet. Now, if I look at the principal Act, we do have a definition for “craft”, and that is “any form of aircraft, ship, or other vehicle or vessel capable of being or intended to be used to transport any person to or from New Zealand from or to any country outside New Zealand”. Now, the reason why this definition is important, in the context of clause 4, is because, effectively, it creates a set of conditions for when the person is liable for deportation, that they are able to be put on that first available craft.

Now, because “craft” captures such a broad range of vehicles, I did want to ask the Minister of Immigration as to why she didn’t choose to use the language “aircraft”; and that is because we’ve heard a lot of the terms of preparation under this bill. Is the Minister preparing to use other types of vehicles? Currently, for all the constituents that I have dealt with, aircrafts are the primary vehicle in which people end up being deported by; but the language that is used here—“first available craft”—captures boats, for example. Is the Minister intending to prepare to utilise other forms of vehicles to, effectively, deport people; if so, what work is she doing to prepare for that? Or does the system already have capacity to deport people in other forms of crafts other than aircrafts?

I recognise that, when it comes to the definition of “mass arrivals” in clause 5, like, we have captured aircrafts as a form of arrival. I know that in the other debates we have had in relationship to the Immigration (Mass Arrivals) Amendment Act, basically, we did mostly assume that people will be arriving by boat. But we haven’t really interrogated whether the Government has any resources to deport people in any form of craft that is not an aircraft, or whether that is even the intention of the Minister, because we have used a lot of language in relationship to preparation.

I do have some questions more broadly on clause 8, and then one of my colleagues will want to unpack some stuff in clause 5 as well, and potentially clause 6. But in the interest of being able to scrutinise the bill adequately on clause 8—this is the amendments to section 52, and I look at new subsection (4A): “The Minister may, by special direction in relation to a class or classes of persons holding temporary entry class visas,—(a) impose further conditions on the visas,”. Now, I know that there’s a set of requirements that the Minister may need to consider when making those decisions around imposing further conditions. Would the Minister be able to elucidate for the House as to in what incidents would she see the need to impose additional conditions—potentially restrictions—on a group of people? We have been told this is about preparation, but I don’t think we’ve received clarity as to the scenarios in which you would need to impose additional conditions on a group of people.

I think that would be particularly important for the Minister to clarify, because I know that, for other components of the bill, which will be scrutinised later, the Minister and other members of Parliament have referenced the horrific attack that happened in New Lynn as a justification for some provisions in other parts of the bill. But I don’t think a specific example has been used to justify the potential need to impose further conditions on visas for a group of people, and so I am interested to hear the Minister’s justification for that specific clause—that’s clause 8, specifically new subsection(4A).

I’m not so much seeking debate on the set of criteria the Minister needs to consider, but more about the potential scenarios in which that specific clause would be utilised, and whether there’s precedent in which the Minister would have liked to have a provision that allowed her to impose further conditions on visas and a group of people that created the need to build in this specific clause. To recap, I’m interested to know about whether the Minister has other types of vehicles and—

CHAIRPERSON (Barbara Kuriger): We don’t need the recap. The Hon Phil Twyford—oh, sorry, we’ll come back to you.

I just want to get these out of the way, if I can—one by one, if I’m able to. In terms of the previous speaker’s questions around “craft”, there’s a long-held definition in the Immigration Act, and—

Hon Phil Twyford: Minister, could you speak up a bit?

Hon ERICA STANFORD: Sorry. There’s a long-held definition in the Immigration Act of “craft”. Of course, we usually put people on the most direct, humane, fastest, and first available craft, which is usually an aircraft. But you could imagine that if somebody lived on a Pacific Island who needed an airline and then a boat, we would want to do that, and so it allows those options. It’s relatively well-used terminology that allows us to do the thing that we need to do to get the person home.

In terms of his second question, there are a couple of things that the member was mixing up, I believe, but, essentially, the ability for the Minister to be able to grant either visas or conditions on visas is around special circumstances. I’ll note that when the powers were available under COVID, it was used about 50 times, and since then, we’ve had situations arise like when Vanuatu airlines got into trouble. We had recognised seasonal employer workers who were stranded here, and we had to individually go and either grant or change conditions on people’s visas. Look, if something similar like that happened in the future and we wanted to be able to allow people to stay here, we might have to change the conditions of their visa to allow them to work or to study.

It has to be for their benefit, which is the main part of this bill, which is very important. It limits the powers of the Minister. It has to be in the favour, or not to the detriment of the group of people, but allowing conditions to be altered means that we are able to allow people to do things like go and work if something overseas has happened and they can’t get home.

The other issue I think he might have been potentially mixing up was the actual person like Samsudeen. What this bill is talking about is that there is a condition where, with those people, we can cancel their residence class visa when they are a threat to national security. So those two things are separate. I’m not sure if that’s something the member was getting confused about or not, but the important part of this section around the protections and the limited power of the Minister is always to make sure that whatever are the changes made, conditions imposed, or visas granted, they are in the favour of the people who are being affected.

Madam Chair, thank you. I do want to ask some questions about Subpart 2, but before I do, I just wanted to go back to clause 5, amended section 9A on the definition of mass arrivals. I want to just be absolutely clear or try to get absolutely clear that a group of aircraft—group, in this context, if I heard the Minister of Immigration right—means only that this is more than one aircraft to arrive within the 24-hour period.

Hon Erica Stanford: Yes.

Hon PHIL TWYFORD: So they don’t need to have any other connection in terms of the people-smugglers that might have booked the tickets or the place where they came from? It simply means aircraft that arrived within the 24-hour period.

Hon Erica Stanford: Yes.

Hon PHIL TWYFORD: The Minister’s nodding that’s the case. OK. As a lay person, I would say that is pretty confusing drafting to refer to them as a group of aircraft. They are simply aircraft that arrived within the time period. But, anyway, we’ll leave that to the courts once this becomes law.

I wanted to just really comment and ask some questions around these new flexible powers that arose out of the COVID experience. Labour supports these provisions and it’s clear that a lot of thought’s been put into putting some protections and some guardrails around the use of them: the reporting back to Parliament transparency provisions, the requirement that they must only benefit and not disadvantage the people they apply to, and so on. I’m interested in, though—this is a significant power to be conferred on the Minister and the Government. One of the most important guardrails is the definition of the circumstances in which these powers might be used. The use of the word “unusual” in clause 7, amended section 50(4B)(a).

Now, it’s kind of a paradox, because if you make it really broad, then you’ve got maximum flexibility. The more you define what “unusual” might mean, the more you limit the potential application of these and therefore defeat the intent. But I would say that in clause 7, amended section 50(4D)(a)(iii), this becomes almost comical, where one of the circumstances where these special directions could apply is “any circumstance that is outside the Department’s control:”. Now, the department is very powerful and controls many things, but to say “any circumstance that is outside the Department’s control:” pretty much means any circumstance that the universe might offer up. The effect of that is that there is no limit on the circumstances under which these powers could be used.

I would invite the Minister to share with the committee the kinds of—we know some of the historical examples where these powers were used, but what future kinds of situations does the Minister anticipate these powers would be used under and how does she interpret the words “any unusual circumstance” in clause 7, amended section 50(4B)(a) and (4D)(a)?

Thank you, Madam Chair. I really appreciate the call, and I wanted to follow on from the Hon Phil Twyford in terms of Subpart 2 and the amendments. The reason why I ask the questions of the Minister of Immigration is to really understand the whole component around human rights, and also the applications that I have seen come through not just in my office but in the Auckland region, where there are many Pacific communities.

Minister, following on from the Hon Phil Twyford, I really wanted to understand, firstly, the advice that you have received from officials with regards to your flexible powers. One of the reasons I ask, Minister, is because, in my office in Māngere, which has a high population of Pacific, we have a range of families and communities who come and talk about their immigration circumstances. What I wanted to understand, Minister, was around the word “exceptions”; the test that will be used or the advice that you have received particularly around safeguards. Sometimes there have been scenarios where there have been specific events beyond New Zealand’s control, we have had individuals, like with the volcanic eruption in Tonga, but also some of the Recognised Seasonal Employer scheme workers. Then we have had a scenario where Pacific families have been through the immigration system and they have been successful getting visas but the temporary visa time has run out, and, in some scenarios, there is no person back in that Pacific country. They’ve gone to Immigration New Zealand to get the tests and what is required to satisfy and justify the request.

I am asking in terms of the advice that the department has given you, because sometimes when my office or I have sought advice from immigration officials or the department—it’s not that it’s conflicting, but it’s different and varying. For people who may not have a background in tertiary study, for the terms that are used by immigration officials, sometimes there’s different understandings. It would be really helpful, Minister, if you could explain that. Thank you.

Right, those questions are all very similar around the types of situations that we expect to happen. Let me run through some examples that were given to me in the advice that I was given: situations where New Zealanders overseas wish to repatriate their families quickly in response to a conflict, like in Ukraine; the collapse of Air Vanuatu, which we’ve already talked about, which stranded Recognised Seasonal Employer scheme workers here; education institutes folding; a large labour-hire firm going into receivership with serious implications for migrant workers; and, of course, the volcanic eruption in Tonga.

I think the member made a great point in her previous question around the fact that it is very difficult when we have to individually deal with people who then have to go and get information and put visa applications together, especially if they’re running out quite quickly. We don’t want people to be here not on a valid visa. The ability for us—like the previous Government did under COVID—to be able to quickly and swiftly deal with those situations to make sure that those people have valid visas, whether or not we have to extend conditions, change conditions, or grant new visas is what this bill is asking this House to approve.

Now, there are a number of safeguards, and that was the other question asked by both members. As I’ve already said, it has to be to the benefit of the people who we are dealing with, but the use of powers would be subject to many safeguards including the overarching safeguard that they can only be used to their benefit, or at least not to their disadvantage.

With regard to the class of special directions, the Minister would be required to certify that they consider that it’s reasonably necessary to exercise the relevant power or powers, and that they have consulted appropriately. The class of special directions are time limited, they must be published, they can be challenged by the Regulations Review Committee, and their use must be reported to Parliament each year in the Ministry of Business, Innovation and Employment annual report.

There will be a report back to Cabinet no more than three years after the powers come into effect, to identify whether or not there have been any unintended consequences, and, if so, what further legislative adjustments should be made. There are a number of safeguards in this to limit the power of the Minister, but, as you can see, there are a number of—as the member rightly pointed out—situations where we need to act swiftly to the benefit of those people, to make sure that they are here on valid visas or conditions that are suitable for them.

Thank you so much, Madam Chair. I just wanted to follow up on an answer that the Minister of Immigration gave me, and I appreciate the engagement on that specific question in relation to “craft”. She used a very specific example of using a plane and then a boat, but then the boat wouldn’t be the first craft; it would be the second craft.

I genuinely ask this because the first available craft would be so broad that I generally just want to ask: have there been cases in which the first available craft has been anything else other than an aircraft—as in, the first vehicle that people are being put in?

My colleague and I worked on an amendment that we’ve just tabled, too, and this is why I wanted to just go back to it, because we just wanted to put an amendment to make sure that the first available craft—so if people need to be put in a boat or a vehicle afterwards, kei te pai—isn’t anything other than an aircraft. I think, to me, that is really important to clarify in legislation so that if the Minister genuinely intends to say the most humane craft available, that it is an aircraft and not, say, a boat that may not adequately protect the wellbeing of people or may not contain humane conditions.

Now, going back to—

CHAIRPERSON (Barbara Kuriger): Could I just ask the member to clarify the reason for that question, because—

RICARDO MENÉNDEZ MARCH: Because we just tabled an amendment to strengthen that.

CHAIRPERSON (Barbara Kuriger): —there could be a wide range of circumstances. Could you just flesh that out a little bit as to why?

RICARDO MENÉNDEZ MARCH: Why aircraft? Because as far as I’m aware—and this is why I’m seeking the Minister’s elucidation—that is currently the only form of vehicle that is currently being used. If the Minister is able to provide examples in which the first point of leaving is being made by anything other than an aircraft, that would be useful. We’re happy to rescind our amendment if the Minister can explain why the first point of exit could be made or has been made in the recent past by anything else other than an aircraft.

Anyway, going back to clause 8, amended section 52(4D)(b)(ii). This is in relationship to the one that says “(b) the Minister considers that the exercise of the power to make the special direction in the particular situation will (ii) not disadvantage the class or classes of persons to whom it applies;”. Now, I know that the Minister said that the intent isn’t to disadvantage groups of peoples when these now new powers are being made. I know that the Minister used the example of the Recognised Seasonal Scheme workers during COVID-19, but can I just confirm with the Minister, in relationship to how this is drafted, the language so far says “considers”, but you could, in theory, just consider it and then, none the less, move ahead with it.

What safeguards are put in place so that it’s not just a matter of thinking about it, considering it, as opposed to requiring, but it does not disadvantage the class or classes of persons to whom it applies? I could see that perhaps not this current Minister but a future Minister could use the language as written to say, “Well, I have considered it. I have taken that into consideration and, none the less, I’m varying the conditions of a group of people or visas to potentially limit, for example, who they can work for, where they can live, how many times they can come back and forth into the country.” I wanted to ask about the specificity of the language of “consider” versus, for example, that those powers must not be used to disadvantage someone. That’s quite a different line of consideration that the Minister would then have to make.

Why did the Minister go ahead with “consider”, as opposed to “these powers must not disadvantage the class or classes of persons to whom it applies”? Again, as much as I want to believe in good faith that the intent isn’t to, can the Minister just clarify how will a future Minister who would seek to restrict or disadvantage groups of migrants can’t simply just consider it and then go ahead with it and use those powers anyway, since this doesn’t necessarily bind the Minister to not disadvantage a group of migrants?

Look, in relation to that last part, the member is really grasping at straws. It’s very clear it has to be to the benefit of the group of migrants. I’ve been very clear that there are a number of checks and balances. There is a disallowable instrument. In fact, it has to go through the Regulations Review Committee and can be struck out if there’s anything that is not according to the regulations. I don’t think there’s anything more to say on that.

Going back to the issue of a craft—again, very minor point. We’ve not been able to think of any time—that’s not to say there isn’t, but my officials can’t ever remember a time—that the first available craft was not a plane. Especially out of New Zealand, because we can’t put people on a train out of New Zealand or anything. But we don’t want to limit ourselves in the case of something that we can’t think of right now, but there’s some kind of emergency where we need to use a helicopter, for example. We don’t want to limit ourselves. But as far as we can see, the first available craft has always been an aircraft. But it would be very limiting if we were to use just the aircraft, and then if some other situation came up and we needed to humanely get someone on a craft and that craft was not an aircraft, then that would be very limiting.

Thank you, Madam Chair. I just want to check—unless I haven’t heard it—the Minister of Immigration hasn’t responded to my earlier questions regarding my amendments, particularly for the definition of “first available craft”. But I’m going to move on and just—

CHAIRPERSON (Barbara Kuriger): The number of the amendment?

Dr LAWRENCE XU-NAN: Oh, sorry the definition is the part which says “apply—

CHAIRPERSON (Barbara Kuriger): No, the number on your amendment.

Dr LAWRENCE XU-NAN: Oh, the number of my amendment?

CHAIRPERSON (Barbara Kuriger): Yes.

Dr LAWRENCE XU-NAN: OK. It is—let me just check—the amendment that was tabled at 8.40.03.

CHAIRPERSON (Barbara Kuriger): Thank you.

Dr LAWRENCE XU-NAN: Yeah. Thank you. Apologies, Madam Chair. I just want to clarify with you clause 7, 8, 9, and 10 pertains to four different types of visa circumstances, but the drafting itself is largely comparable, so I will be drawing from different clauses from each one because I have an amendment for each of those clauses. So, for example, to start with, I want to talk to my amendment which is around clause 7, amended section 50(4E); clause 8, amended section 52(4E); clause 9, amended section 43(4E); and clause 10, amended section 57(6), because for all of those four clauses, the drafting is identical, so my amendment is the same but they are four different visa classes, if that makes sense. So bear with me. For all four, it talks about the type of special direction.

Now, I want to just check with the Minister because I do think that the issue my colleague Ricardo Menéndez March raised is a good one, because, for example, in new subsection(4D) in any of those clauses 7, 8, and 9, you would see that the Minister “must” certify, not that the Minister certifies. Therefore, if you look at new subsection (4D)(b) that my colleague mentioned where the Minister “considers”, it doesn’t have the requirement of “must”, so it doesn’t have that totality.

Moving on to my amendment, one of the issues that was brought up is with clause 7, amended section 50(4E); clause 8, amended section 52(4E); clause 9, amended section 43(4E); and clause 10, amended section 57(6)—

Hon Erica Stanford: Which amendment number, sorry?

Dr LAWRENCE XU-NAN: Oh, OK. Let me—oh, sorry, this is going to take a little while. It’s the amendments tabled at 8.40.09; 8.40.15; 8.40.21; and 8.40.26.

In here, the recommendation is—because any decision to issue a special direction under the proposed amendment would be at the absolute discretion of the Minister and would lack the degree of transparency that’s normally expected of legislation that will affect a large number of individuals, but also the proposed power, effectively, to allow the Minister to vary otherwise applicable provisions of the Immigration Act itself. My amendments for these four sections, essentially, have a commencement date of no less than 28 days after the direction is made. Now, rather than saying that commence in accordance with section 378(3), which is, in fact, immediately, if it’s not published, I think a default 28-day intro period would ensure there’s adequate notice of any special direction given. I do agree with the Minister that there’s a lot of really good safeguards in here, but I just wanted to add a little bit more because of the fact that the regulatory-making power the Minister has under this bill for these two separate visa classes can be quite substantial and affects a substantial number of people.

Now, the second thing I want to mention is my tabled amendments tabled at 8.40.10; 8.40.16; 8.40.22; and 8.40.27. These are also for clause 7, amended section 50(4E)(c); clause 8, amended section 52(4E)(c); clause 9, amended section 53(4E)(c); and clause 10, amended section 57(6)(c). The reason I put in this amendment is that I understand when, with (b), you can commence—I will finish this call; sorry, Madam Chair—even if it’s not yet published; however, (c) says it must be published together with an explanation of the effect of this special direction. But what isn’t there is when that needs to be published. So, for example, in any of these, like clause 7, inserting new section 50(4E)(d), it says “must specify—(i) its duration, which can be no longer than 6 months”. I did like the fact that there is a sunset clause; I think that’s a really good safeguard. But, for example, does that mean without a specific timing for publication, that the Minister could, in fact, publish after the duration or after the special direction is no longer in effect?

My amendments for these four clauses are just to ensure that while the Minister may consider commencing immediately and delay the publication, the publication should still take place within 14 days. Those two are my two groups of amendments—so I have eight in total.

Right—I’ll speak to two of Lawrence’s amendments just to say we won’t be supporting them. The amendment at 8.40.03 a.m. we will not be supporting because it’s inherent that “the person” includes their agent or their representative, and that is clear in the legislation. In terms of the amendment at 8.40.05 a.m., you talked about the difference between the diplomatic pathway and not. You can imagine that taking steps to deport diplomats is a very complicated process with lots of concerns, so we have to deal with those separately, and we won’t be supporting that one either.

Going back to Ingrid Leary’s comments from earlier about whether airports would have the capacity to manage a mass arrival: mass arrival group provisions are explicitly to enable people to have access to interpreters and lawyers, and the framework is to ensure the system can manage—that’s the whole point of the mass arrivals legislation. If we didn’t have that, then we wouldn’t be able to cope, and officials have operational planning in place to respond to a mass arrival by air or by sea.

Ingrid Leary asked, “What is irregular entry?” This language is used in the United Nations High Commissioner for Refugees (UNHCR) guidelines on detention of asylum seekers and is really clear—

Ingrid Leary: Point of order, Madam Chair. I’m really appreciating that the Minister is answering the questions, but it’s really difficult because of the speed and quietness. For a back and forth, I want to be able to digest what she’s saying, but it’s so fast and so quiet. Could we just have it a little bit slower, please? It may bring more into the debate—I’m not sure—but this is an appreciation that she is answering the questions, and we need to be able to hear the answers.

Hon ERICA STANFORD: OK, so “irregular entry” is language used in the UNHCR guidelines on the detention of asylum seekers, so it’s very clear. She asked: is the bill consistent with the New Zealand Bill of Rights Act? Yes, the Ministry of Justice gave a clean vet to the bill, and, as I’ve already said, it’s not a prohibited form of discrimination to distinguish between modes of transport. I already made that clear, but officials have confirmed that as well.

Thanks, Madam Chair. Now, I do just want to jump forward a little bit in the bill. Just recognising that there are probably clauses that I’ll be skipping past that other colleagues are going to want to interrogate, but this is a particular piece I’m quite interested in asking the Minister of Immigration about. So that’s clause 13, which inserts new section 75A, which is the cancellation of a residence class visa of a person threatening security. So what I note is that this bill does create a power for the Minister to cancel the residence class visas of individuals who pose a threat or risk to security but who cannot currently be deported. So, for example, there could be substantial grounds for believing that that person would be at risk of persecution, and it then requires the Minister to grant them a temporary visa. This provision arose out of work that was done by the Labour Government after the terror attack in a West Auckland supermarket, which happened in September 2021. That was Ahamed Samsudeen. He had refugee status and residence, but he had been identified as an extremist and a risk and he couldn’t be deported because of his protected refugee status. What it did is it exposed the lack of tools that a Government has in dealing with somebody who is a risk but also can’t be deported because of their protected status under international law.

I have some questions for the Minister on the basis of this, because it does call into question a few, I think, technical challenges, and challenges around how this operates in practice. The first is that it is a significant new power being given to the Minister; my question is why are there not some more accountabilities around it, for example, an appeal right for that person? The affected individual also has no meaningful opportunity to test this information or to appeal against that decision on the basis of the facts or on humanitarian grounds. There’s also a question around, given the seriousness of this, whether it might be wiser to have a judicial warrant, as opposed to a decision by the Minister.

There’s also the situations where someone may be deemed a risk to national security but also has children. They have their residence visa cancelled, but they have children. This presents challenges when Government really should also be considering what is in the best rights of the children and other family members. Has the Minister considered the best interests of the child in terms of this particular decision?

One of the questions I’ve got, though, which I think is a really interesting one for the Minister, is that the time frame on this—could a person, essentially, end up in a state where they were having a continued rollover of a temporary visa and what rights does that grant them? Then what does the Government actually do about the security risk component? So you could envisage a scenario where somebody has their residence class visa cancelled, they continue for the remainder of their life to have a risk of persecution which means they’re not able to be returned to their original country. That could be 20, 30, 40, 50 years of a person having a continued rollover of a temporary visa, but then there’s also the challenges to New Zealand’s security, which are genuine, because we now have somebody on a temporary visa who doesn’t have the rights of a resident to potentially access things like healthcare support that might actually be the type of intervention that’s needed to support this person to no longer be a security risk.

I can absolutely appreciate, and we can appreciate as the Labour Party, when somebody—and this particular scenario was an example where real harm was caused and further harm could have been caused. We’re not denying that there is a risk posed by this person that they’ve been deemed to be a security risk, but likewise there’s a genuine situation for that person’s ability to not be persecuted and potentially killed on return to their home country. It puts a real conundrum around the situation. Those are my questions for the Minister.

Just recapping them: why is there no appeal right? Why not consider a judicial warrant, given the significant legal things to consider? What is the scenario when someone has children? What is the scenario when someone has a temporary visa continually rolled over? Then, what does that mean for both monitoring that person, and provision of support so that they can actually have some potential behavioural change? Thank you.

Look, in relation to those questions, there is the ability of the person to have a judicial review and that is the process. In terms of where I will get a judicial warrant to do this, that is not the case with Immigration New Zealand at all. It always is the executive power of the Minister in all of these cases. This is not an unusual situation to have people rolling over on visas. The Hon Phil Twyford will remember, probably, as his time as the Minister, signing off many rolling visas of people that are protected, people that we can’t return that we will not give residence to. It’s sort of a parallel example, but we do that relatively regularly with people that we don’t want to give residence to but we can’t return home because they’re protected people.

This is slightly different in that we are revoking their residence and putting them on rolling visas, but the point is that unless the situation changes in their home country, they will be here with their children and with their family on rolling visas. It is not an unusual situation for us to be doing this. Immigration Ministers have been doing it for a long time in that very unenviable situation where we have somebody that has either committed a crime in New Zealand that we do not want to give residence to but we can’t return home, or in this new instance where we are revoking someone’s residence because they are a threat to security but keeping them rolling over on visas. That has always been the power of the executive and the Minister and it’s not been considered to be required to get a judicial warrant. That would be outside of anything that we’ve ever done in any similar situations and we won’t be doing that.

Just going back to Lawrence’s questions around the Minister’s powers to grant visas or to change conditions of visas. As secondary legislation, there’s already publication requirements in the Legislation (Publication) Regulations. That already exists. Also, section 378 of the Immigration Act enables the Minister to revoke any special direction if it’s no longer needed. Given this is to the benefit of the people who are affected, it will be known to them and we will be publishing it. We have to; it’s a statutory requirement.

Thank you, Madam Chair. Further to the Minister of Immigration’s responses to the questions from my colleague Rachel Boyack, there are three points I wanted to touch on further with this.

Under the provisions of this bill, having revoked the resident visa of someone who is deemed to be a threat to national security, the Minister is required then to issue a temporary visa. Now, if the Minister was, in that circumstance, to issue a visitor visa, the person in question would not have access to paid employment or the kind of income support that they otherwise would be able to get from the State if they were on a work visa—or at least not to the same level. The reason I raise this is that I think that if the Minister were to do that—to deny the person the potential to have a livelihood and to feed themselves and their family—we would be in serious breach of our international human rights obligations, and yet that scenario, I believe, is open to the Minister under these provisions. I would ask the Minister to comment on that. What sort of guard rails are there if the Minister does issue a temporary visa, and what obligation is there on the Minister to ensure that the person in question can sustain a livelihood while they’re in New Zealand?

Secondly, I wanted to say something about the point that Rachel Boyack raised about how this is a sweeping executive power. Giving the Minister the right—I think it’s under section 163 of the Immigration Act—to certify that someone is a threat to national security: if you go and look at section 163, you’ll see it is a very broad provision. I’m not questioning that it’s inappropriate, because I think New Zealanders would expect a Minister, in this case, and the Government of the day to be vigilant in protecting the national security of New Zealanders. From my perspective, that’s accepted—that’s a given—but it is important that in exercising this sweeping power, there are some safeguards and controls.

I wanted to ask the Minister whether she got advice and whether she considered—well, I know she told Rachel Boyack that she didn’t accept or consider the need for a judicial process. The reason that I think that is worth considering—and my intention is to table an amendment on that in the course of this debate; requiring a judicial process—is because I asked the House to cast its minds back to the Ahmed Zaoui case. Ahmed Zaoui had his immigration status revoked; he ended up languishing in a New Zealand prison for a considerable length of time on the basis of advice from our police and security agencies that was, for a long time, not tested in court. He was not given the opportunity to address and respond to the evidence that was used as the basis of the Government’s intervention—

Arena Williams: Which is now widely discredited.

Hon PHIL TWYFORD: That evidence was subsequently discredited. I think that the Ahmed Zaoui case is a pretty powerful story of why we should think very carefully about enshrining this sweeping power for the Minister of the day to simply certify—through secondary legislation—that a person is deemed to be a risk to our national security.

I have a third point that I wanted to make that may take a little bit of time, Madam Chair. This goes to the heart of what this provision is trying to achieve. Everyone, I think, can see that when someone is assessed as a threat to national security, they’re a protected person under international law, so they cannot be deported. If they weren’t protected, and they were a threat to national security or they had committed a crime, they would be deported. In this case, it puts the Government of the day in a very difficult situation, as the Samsudeen—[End of five-minute call]

Hon Members: Madam Chair?

Hon PHIL TWYFORD: Madam Chair? I haven’t finished, Madam Chair; I’m in the middle of my point.

Hon Members: Madam Chair?

CHAIRPERSON (Maureen Pugh): Calm down—calm down! The Hon Phil Twyford, you did give me notice that you were going to run out of time, so I was prepared to roll this over.

Hon PHIL TWYFORD: Thank you. The effect of this bill is that it gives the Minister the opportunity to strip someone of their resident status. The question is: is that intended to be punitive and some kind of deterrent so that it will deter the person in question from staying in New Zealand, for example, because it’s harder for them to live because they don’t have access to social services and so on? If they then face the possibility that if conditions in their country improve—say, like Syria has, for example—does it mean that they could face being returned to their country of origin, and that acts as a deterrent? Does the Minister see this as, essentially, punitive, and has the Minister considered whether or not this is a way of the Government of the day having some leverage to sit down with the person in question and work out some sort of deal?

The reason I raise this—and I wanted to share an experience that I had as the Associate Minister of Immigration when immigration officials came to me one day and said, “There’s a person here who is about to be released from prison. They have protected person status, they cannot be deported, they have mental health and addiction issues, they have been in prison for several years, and they were in prison because they committed some pretty serious violent offences against their family members.” This was a really difficult conundrum. This person is about to be released into the community—there was no way to keep them incarcerated—and so we had to consider what to do.

After some head-scratching and working together, we were able to put together, effectively, a deal where this person got a temporary visa that enabled them to access income support and social support in return for residential reporting requirements. They had to check in with their local police station regularly; they had to enrol for rehabilitation services and English language training and deal with their mental health issues. It was a pretty concerted effort to try to get this person to rehabilitate themselves.

Now, that was a very unusual sort of situation, and I’m glad to report that a year later, that person turned up at my electorate office to tell me that they had rehabilitated and reconciled with their family members. I know from subsequent contact that person has done remarkably well and is living happily in the community with their family and is in paid employment and is now speaking English quite well. The reason I raise that is that I’m interested to know whether or not the Minister and her officials see that sort of facilitated community engagement strategy as a possibility, or do they simply see this provision as being punitive and designed to deter someone who’s seen as a threat to national security and encourage them to leave the country as soon as possible.

I think it’s just worth remembering the types of people that we’re talking about. The case that kicked off, under the previous Government, the work they did was the Samsudeen, where there was a threat to national security; the person was under 24/7 surveillance because of the serious threats of harm to New Zealanders. It places us in a very difficult position when people are protected and we can’t return them home. But what we can do, and I think what the Opposition agrees with, is that we can revoke their residency status. The point of that is so that if things change and their situation changes in their home country and at some point they can be returned, we can then deport them. We would obviously have to go through a system where we would need to remove their protected person status, but remember these people are a threat to national security. Let’s remember what happened in the Samsudeen case. There is always the option for a judicial review, but this is a practical and pragmatic thing that we can do so if things change; we are able to remove people from this country.

Now, the previous Minister also talked about the Ahmed Zaoui case. I just want to make very clear, that was very, very separate. It was dealt with at the time. There was a raft of changes that were made to the Immigration Act at the time around that case, to put guard rails in place; special provisions around the use of classified information. That is out of the scope of this bill, but that was dealt with then, so those things are not relevant to this case. This is simply about making sure that someone who is a risk to national security—someone like Samsudeen—if the situation in their home country is to change, then we have the ability to remove them from New Zealand.

I move, That debate on this question now close.

Not quite there yet.

Thank you, Madam Chair. I want to be very specific in my contribution. I want to speak to, I think, 11 of my amendments. I want to start by first going to the amendment that is tabled—let me just find it again—8.40.13 and 8.40.19. Now, the reason I raise these two—and this is clause 8, amended section 52(4A)(a), and clause 9, amended section 53(4A)(a)—is that these impose further conditions. I’m recommending that if the Minister of Immigration wouldn’t mind considering from “impose further conditions” to “vary conditions”. The reason I say that is the Minister has rightly before said that a Minister will consider the exercise of power that benefits a class and not disadvantage. But I can’t think of an instance where imposing further conditions will actually benefit.

Hon Erica Stanford: I can give you one.

Dr LAWRENCE XU-NAN: Oh. In that case, I will stop there and the Minister may be able to respond to that.

My next group of amendments is amendment tabled 8.40.12; 8.40.13; 8.40.17; 8.40.18; 8.40.23; 8.40.24; 8.40.28; and 8.40.29. Now, these are groups. Again, the Minister would, no doubt, be aware that I have a special interest when it comes to regulatory-making powers and potentially some of the checks and balances that are involved when it comes to regulatory-making powers. For both of these two clusters there are, essentially, two main recommendations I want the Minister to consider. I want to thank the Minister as well for clarifying in terms of the publication requirements; that’s very helpful.

What my proposal is—the first one is around that section 378 of the Immigration Act is not applicable to the special direction under various subsections (4)(a) and also (3) of section 57, amended by clause 10. Now, the reason for that is because the absolute discretion that is granted in section 378(8) of the principal Act should not be applied to these special directions. This will actually help the transparency and accountability of the decisions made using these new powers and enable those decisions to be more easily reviewed.

The second one is to put in a review clause with any regulatory-making power. Again, I understand there’s a sunset clause, which is fantastic, but I’m seeking the Minister’s support on new subsections for each of these: a new subsection (4)(f) and subsection (7) of section 57, amended by clause 10. This, basically, is just making sure the Minister may review the effectiveness of the special directions under clause 10, amended section 57(4)(a), at any time and must review it no later than three years after commencement date.

Now, the reason for that is any decisions to issue special direction under the proposed amendment would be at the absolute discretion—and, also, like the transparency, the proposed power also allows the Minister to vary otherwise applicable provisions. But having this provision in place would just mean that we’re able to have some review on that. I’m noting—I note this is a different section—that later on we do see in the new section 399AC, inserted by clause 56, that there is a review clause on secondary legislation under regulatory-making power. Even within this one amendment bill, we have seen my amendment being adopted.

I want to move on now to clause 18—

Ricardo Menéndez March: Which we haven’t touched on.

Dr LAWRENCE XU-NAN: —which we haven’t touched on. This is a really significant section, because clause 18, amended section 161(1AA)(1), is something that many submitters, including legal experts, have raised to be a serious concern. This is where we’re now changing the wording from “convicted” to “are convicted or found guilty of, or plead guilty to”. Now, this broadens the scope of this particular bill, especially for those who have pleaded guilty but not been convicted—i.e., those who have pleaded guilty or even been found guilty but are acquitted by a judge are now going to be considered under this clause, which is really, really broad. I just seek a tiny bit more time from you, Madam Chair, just for me to finish this one.

We don’t really agree that maintaining the status quo undermines the integrity of the immigration system. The court already has the ability to consider—Madam Chair, I’ll just finish this amendment—whether deportation liability should be an appropriate consequence of the offending. The current framework has, to date, struck an appropriate balance between the interests of the affected person, the public interest, and the integrity of the immigration system by enabling the court to address low-level criminal offending, where appropriate under a well-established sentencing structure. But also noting that if a person is acquitted under this, they’re still considered found guilty, which means they’re captured under this new clause. The safeguard is provided under the section 206 test of the Immigration Act. A person who is in that situation would be unlikely to meet the section 206 test of the Immigration Act.

My proposal and my amendment here—that is amendment tabled 8.40.30—is making a recommendation that we keep the status quo of keeping it to “convicted”, and delete the mentioning of “found guilty or plead guilty”, just so we don’t get ourselves into a situation where there is a gap between section 206 of the Immigration Act and what we already allow people, by their right, under the Sentencing Act of acquittal.

OK. There’s a few things there. Firstly, imposing conditions—you asked for an example. If you had a group of people here who are here on visitor visas, and their flight or their airline collapsed or something happened in their home country like a volcanic eruption, we would impose a condition that they would be able to work. We’ve been over this a number of times now and I’ve already made that clear, but one more time I’ll make it clear.

There is already a review period, as I’ve already mentioned, built into this. There will be a report back to Cabinet no more than three years after the powers come into effect, to identify whether there have been any unintended consequences, and, if so, whether we need to make further legislative adjustments. Something is already built in to make sure that we are—again, I’ve mentioned that already.

I want to talk, though, about this next part of the bill that the member raised, around ensuring that the decisions around deportation stay with Immigration. We have a process in Immigration whereby if you do something that makes you liable for deportation, there is a process that you go through. It goes to a delegated decision-maker, it may end up with the Immigration and Protection Tribunal, but there is a process. Circumnavigating that process is what’s happening at the moment, where judges will discharge without conviction to avoid people having to potentially be deported—not actually deported. Just because someone is liable for deportation doesn’t necessarily mean they are deported, and, in many cases—

Dr Lawrence Xu-Nan: But that’s the discretion of the judiciary.

Hon ERICA STANFORD: —just have a listen—they are not deported, because of the process. Many times, if it is a first offence and it is minor and they are liable for deportation, it will go to a delegated decision-maker at Immigration New Zealand and they make the decision, on many occasions, not to deport. But if they do make the decision to allow deportation to happen, then there are still other avenues for those people to go down, including the Immigration and Protection Tribunal and, of course, the Minister. There is an established system that already exists.

But what we are finding that is happening in the courts is that—and there’s an argument being made that “Oh, well, look, this poor person may be deported, not actually will be, but might be.”, and now that process is being circumnavigated. Now, the first thing is that is not something that is open to a Kiwi. If a Kiwi was to go before the courts, they don’t have the same ability to say “I need a discharge without conviction because I might be deported.”—so not available to a New Zealander.

Secondly, I just want to give the member—and I mentioned this in the Education and Workforce Committee: the types of cases that we are seeing are things like, and I’ll give you an example of one, the person had two counts of assault on a person in a family relationship; he punched his pregnant wife in the stomach, the outcome was that the convictions and the sentence of 220 hours community service was set aside, discharged without conviction. Now, there is already an established process to work out whether or not someone should be liable for deportation. It sits under the Immigration Act, it always has, it’s being circumnavigated, it should sit there. We are being very clear in this instance that if you are guilty or found guilty or you plead guilty, then the deportation liability still exists. What it does is put that process back where it belongs, which is in the established process in Immigration, through a delegated decision-maker, through the Immigration and Protection Tribunal, or through the Minister.

But it’s in our view—in the Government’s view, which is why we brought this amendment—that it should run through that process and it should not be circumnavigated by a judge who is discharging without conviction in these cases, to avoid the process; not necessarily. Let’s be really clear about that: deportation may not happen, and the judges are circumnavigating that, effectively, and we want to make sure that it runs through the same process; the fair and established process that already exists.

Before I take the next call, I’d just like to note, members, please: the scenarios are consuming a huge amount of time. The committee of the whole House is to see and have issues and questions addressed relating to the bill. Can we just bring it back a little bit tighter to relative questions on the parts in the bill.

Thank you so much, Madam Chair. I just wanted to clarify to the Chair, one of the reasons—in particular, for clause 13—why some case studies have been brought forward is that, for example, in clause 13 we have seen one case study being used—

CHAIRPERSON (Maureen Pugh): You are doing it already, Mr Ricardo.

RICARDO MENÉNDEZ MARCH: No, just noting. What I’m seeking clarification from the Minister of Immigration is: how many people have been deemed to be a threat to security that the Minister would have not been able to strip away residency from that now she will be able to strip residency from as a result of clause 13? I’m seeking, actually, clarification on how many people would this clause actually seek to capture.

The other question I have was that I would like to seek clarification in the language, because people asking questions and giving answers use the term “national security”. Now, in this clause and in the principal Act, the language of “national security” is not used; it’s just “security”. It’s “threat to security”, not “threat to national security”. Those are actually quite different things. Can the Minister explain what she would mean by “threat to security”? I do think it’s dangerous to use the term “national security” when that is a term that’s used for quite serious things, as opposed to “threat to security”.

Now, my other question in relationship to clause 13 that has not been canvased is why did the Minister not choose to include a requirement for her to consider whether the person had received, for example, adequate support? For example, mental health support, access to counselling, etc. At the end of the day, we know, from the examples that the Minister herself has referenced, that, in those cases, there was a lack of access to mental health services. I’m interested to know why that wasn’t built into clause 13.

Now, on clause 18, I have also a question in relationship to how many people the Minister currently would be deeming to capture. I’m sure and I hope that she received advice around, for example, how many people on temporary visas would have been found to be guilty or pleaded but not convicted over, say, the past 10 years. I think, to me, this is important for the Minister to clarify to the public what group or population we are talking about.

I hate it when the Minister or anyone uses the term “those people”. Who do we mean by “those people”? I hear from the Chair that she doesn’t want us to bring examples, but the Minister did just that when, in her contributions, she used one quite extreme example of somebody punching a pregnant person as a justification for this bill. That is why I’m asking on clause 18: how many people in the past, for example, 10 years, five years—even in the past year—have been found to have been guilty or pleaded guilty but not convicted, and therefore not liable for deportation that she now would like to seek to capture?

What nationalities are more likely, if we take a sample over the past decade, to be captured as a result of clause 18? Again, it’s simply not good enough for the Minister to use terms like “those people” without telling us exactly the range and the scope of people that would be captured. Surely, when designing clause 18, she would have said, “This is a systemic issue.”; not an issue of one specific example that would have not been dealt with.

The second question on clause 18 that I have—because the New Zealand Law Society rightly pointed out that the Immigration and Protection Tribunal (IPT) process can often be insurmountable for people. Can the Minister give us assurances that she may be exploring additional resourcing to, for example, entities or advocating for resourcing for entities like Community Law to make sure that the potential increase in IPTs being lodged as a result of clause 18 will be able to be dealt with in a way that doesn’t just become this supposed process that people can follow but, actually, in practice, is completely insurmountable for people to lodge an IPT to be able to challenge the liability of deportation.

I just really want to encourage the Minister to stop using the term “those people” and give us the numbers of how many people she wishes to capture in clauses 13 and 18 specifically, so that we’re not just actually further marginalising communities. Ibrahim Omer, a former Labour MP, rightly pointed out, when the attacks in New Lynn happened, that he did not want to see asylum seekers and/or other groups prejudiced by what happened there. Yet we are seeing exactly the same thing under this piece of legislation.

Just in the spirit of speaking more slowly—which I am trying to do—if that member could also just slow it down a bit. Take further calls. It’s just really hard to keep up, especially when you are merging and mixing two different issues; it is hard. I’m just asking for you to slow down a wee bit and be really clear about the different things you’re speaking about, because there are two different things that were merged in here.

The first thing was around the case where we have a protected person that we would like to strip of residency because they are a national threat. You asked about the numbers. Now, at this point in time, I’m advised that there isn’t anyone that we would have on our books. However, this is future focused. The Samsudeen case was huge, it was distressing, and it was difficult for people in New Zealand to fathom that there was, at the point in time, nothing that we could do.

Now, the previous Government, to their credit, worked on this. It was very difficult and very tough in the case of a protected person. This is something that we can do and I think we both agree that we should do, but it is future focused. We don’t want this sort of case to happen again, where we sit there and go, “Oh, well, there’s nothing we can do.” There has to be something. This is something that we can do. But I can confirm with the member at this point we’re not aware of anybody.

In terms of—and this is the second that was mixed in slightly, and this is around the numbers of the people who are being discharged without conviction on the grounds that they may be deported. Look, we don’t have exact numbers, but what is being reported to us, especially down south and in Queenstown and in the southern area of New Zealand, is that it is happening more and more. The case numbers are huge and so this is why it is something that’s been brought forward because it is being circumnavigated.

I just want to draw the member’s attention to the definition of a security threat. It’s defined in section 4 of the Act: terrorism, espionage, foreign interference. It’s very clearly defined in the Act.

Madam Chair, thank you. I do note that colleagues on the Government benches are getting a bit antsy and taking closure motions. I just wanted to say that there are nine discreet and substantive parts to this bill. So far, we’ve covered off the cancellation of residence class visas, we’ve covered off the new flexible powers of the Minister to benefit classes of persons, and we’ve dealt with the definition of mass arrivals. But can I just draw the Chair’s attention to the other substantive parts that we haven’t got to yet. We’re currently talking about deportation and criminal offending—Subpart 5. We haven’t yet got to Subpart 7, on out-of-hours warrants. We haven’t yet dealt with charging of premiums—clause 47. We haven’t yet dealt with the very important Subpart 8 on the warrants of commitment for asylum seekers, nor clause 41 on electronic monitoring.

CHAIRPERSON (Maureen Pugh): This is your chance.

Hon PHIL TWYFORD: Yeah. And I’m just wanting to say to the Chair, who’s only recently joined the session, these are very—

CHAIRPERSON (Maureen Pugh): Have been watching since 9 a.m.

Hon PHIL TWYFORD: OK. These are very substantive parts. If I may say, there’s been very little repetition, and we’re having, I think, some pretty good dialogue. I just wanted to say that.

In relation to Subpart 5 on amendments relating to deportation, I do think this is an important issue. I wanted to ask the Minister—really in response to concerns that were raised by a number of submitters at select committee, including the Law Society of New Zealand; concerns that the change undermines legal certainty and fairness, and it erodes judicial oversight and due process protections. I wanted to ask the Minister whether she’d considered whether this change would undermine the current potential advantage from an early guilty plea that it risks incentivising more defended trials, with flow-on effects on the justice system?

The regulatory impact statement (RIS) notes that there is no data to support this change. I wonder whether or not the Minister can, subsequent to the RIS, offer us any data that supports this change. The RIS also frames the amendment as enhancing public confidence in the immigration system. I wondered whether or not, again, there’s any evidence to support that suggestion. The amendment would, effectively, nullify the deliberately conferred discretion vested in sentencing judges under sections 106 and 107 of the Sentencing Act, which allows judges to consider the broader context, mitigating factors, and the personal consequences of a conviction. In light of all that, did the Minister seek advice from the Ministry of Justice on this matter?

There is still the discretion of the judge to discharge without conviction if he so wishes. But, essentially, the process that is being eroded is the process that already exists under Immigration New Zealand; the established process where delegated decision makers and the Immigration and Protection Tribunal have absolute full information about a case of a person who is liable for deportation. That is not the same when you have that situation with a judge and it is circumnavigating another process at Immigration New Zealand where all of the relevant information around someone’s deportation liability is considered. It’s a long-held established process that sits under the delegation of the immigration process. It is being circumnavigated in far greater numbers than it ever has been without that full information. The amendments that have been put forward on this will not be accepted.

Thank you, Madam Chair. Thank you, Minister, for your response previously. I want to move on to a new clause. I’m looking at clause 32, new section 317AA. I’m specifically looking at new section 317AA(4), which is around threat or risk to public order. I want to refer the Minister of Immigration to my amendments at 8.40.31, which is to delete this section—for the definition of threat or risk to public order, delete “failing to comply with this Act.” Now, the reason I’m bringing this amendment to the Minister’s attention is that I think neither the United Nations High Commissioner for Refugees guidelines on the applicable criteria and standards relating to the detention of asylum seekers and the alternatives to detention or Victoria Casey KC’s report on restriction of movement of asylum seekers identified failing to comply with the Act as a factor which justifies detention, because there’s a specific section on that. Both publications say that a short-term detention may be justified where there are threats to national security or security or public safety or there are genuine real risks of absconding. Absconding, I agree, is an important part, but failing to comply with the Act isn’t. That’s my amendment to the Minister if she would consider removing that particular part.

The next part I want to talk about is actually in her Amendment Paper—so Amendment Paper 445—which has just been tabled yesterday. Part of that is to introduce new clause 40A and new clause 40B. My tabled amendments to the Minister’s amendments are tabled at 8.40.32 and 8.40.34. Now, the reason I tabled these two is mainly just to note that there is, I guess, potentially a gap or oversight—unless the Minister is able to clarify—that when you are looking at new section 324B(3), which is where you’re making an application for release on condition, for both non-claimant and claimant, what’s missing there is consultation or input from the person through the application process. The application, according to new section 324B(2) and new section 324C(2) is an immigration officer may apply. So my two amendments, basically, are addressing the fact that there’s nothing that actually says the person themselves should be involved. My amendment is just to insert new subsections, which are (3)(bb) to the Minister’s clause 40A, amended section 324B(3)(ba) and clause 40B, amended section 324C(3)(ba), which must include input from the person during an application process, such as why they believe they should be released on condition or whether, for example, they believe certain conditions, such as electronic monitoring, which the previous speaker has spoken about, should not apply to their release. This is a suggestion by the Law Society as well, so it just ensures that natural justice principles are upheld.

I think that is my three amendments that I want to engage with the Minister on at this stage. Thank you.

Yeah, we’ve had two of those—I’m just waiting on the third one. But in terms of 8.40.34, the person will have legal representation so they’ll be able to present the views of the person to the judge. There’s no reason for that amendment.

You asked in your amendment, amendment 8.40.31, around why we need the part around—you want to remove the bit about failing to comply with the Act. For an example, failing to comply with the Act might be failing to comply with the terms of the RRRA—the residence and reporting requirements agreement. That is very important and that is one of the things that would be failing to comply with the Act, which is why we won’t be accepting that amendment either. I’m just waiting on 33.

Thank you, Madam Chair. I want to speak to Subpart 7, the provisions that require immigration officers to obtain a judicial warrant prior to conducting out-of-hours residential compliance visits, otherwise known as dawn raids.

The purpose of these provisions is to ensure that immigration compliance powers, when they’re exercised outside of normal hours, are reasonable, proportionate, and in the public interest. Labour strongly supports these changes. They arose out of the Heron review that our Government initiated in response to the revelation—around the same time as our Government made the Dawn Raids historic apology, in fact—that these visits were still going on. It signals, as I said earlier, a departure from more punitive models of immigration control and we appreciate that.

I wanted to ask some questions of the Minister of Immigration about whether or not specific provisions were considered to ensure that out-of-hours visits are a measure of last resort. The bill doesn’t do that, so I wonder what consideration has been given to ensuring that the way that these powers are implemented through procedures and policies and operations will ensure that is in fact the practice.

I also wanted to refer to some tabled amendments from Vanushi Walters, my colleague, who has moved the following proposed amendments in clause 43 to add the following words in new section 324J(3)(d), if given prior notice, unless there is a compelling reason not to do so.

Hon Erica Stanford: Is there a number on the top of that?

Hon PHIL TWYFORD: It’s 10.46.00. That wording, I believe, would have the effect of ensuring the obligation is on putting it in primary legislation to put the obligation in a much clearer and starker way, that this is to be only carried out when all other avenues have been exhausted.

Also, Vanushi Walters’ tabled amendments 10.46.01, in clause 26, to include a new section that reads “include an assessment of whether the proposed entry and search is compliant with international and domestic standards”. Third, another amendment by Vanushi Walters, clause 26; the amendment is time stamped 10.46.02. This would insert a new clause that would add disabled persons and pregnant persons, new section 293B(3) and (4), inserted by clause 26—so consider the potential impact of the proposed entry and search on anyone else who may be present in the dwelling or marae, including children, elderly persons, disabled persons, pregnant persons.

This is really about ensuring that the way that these powers are exercised would be consistent with our human rights obligations, and I hope that everybody in this House is highly sensitive to the history of the Dawn Raids and the importance of these powers being exercised in a way that is sensitive to the legacy of trauma that was from the aftermath of the Dawn Raids. Yeah, I’ll leave that there. Looking forward to the Minister’s response.

OK, going through those one by one, the first thing the member was asking about was the process and the safeguards in doing an-out-of-hours compliance visit. As the member knows, in this bill the warrant has to be signed off by a judge. The judge needs to make sure that the actions are proportionate, that all other avenues or possibilities have been exhausted, and they do need to take into effect whether or not there are vulnerable people or children or situations in the household. There are plenty of protections in the issuing of that warrant.

Going through the amendments one by one: time stamped 10.46.00 from Vanushi Walters. The intent of this amendment has already been met through the Government’s Amendment Paper, requiring reasonable notice to be given in writing. The amendment at 10.46.01; the amendment’s not necessary as the domestic standards expressed in the New Zealand Bill of Rights Act reflect international standards. At 10.46.02, and this is around the disabled or vulnerable persons: these are included within the wording “other vulnerable persons” and do not need to be listed separately.

As long as we are moving along, I’ll call Ricardo Menéndez March.

Thank you, Madam Chair. I wanted to speak to my amendment 23.20.07. This is in relationship to clause 42, in relationship to release on conditions. I know we’ve started talking a little bit about the provisions on electronic monitoring. I wanted to seek clarification and then, potentially, support for my amendment. The way that I see the legislation being written in clause 42 in relationship to release on conditions and, basically, amended section 324F(1)(da) “a condition requiring the person to submit to electronic monitoring”, I wonder whether, for the avoidance of doubt, she would want to make sure that the language specifies that it is an adult? The intent of this is to not have children being subjected to electronic monitoring. I did want to just ask whether she thinks that the language in clause 42 was adequate to just capture it as “person”, or whether it is her intention to subject under-age people to electronic monitoring, per the provisions in that clause? Clarification around that would be particularly useful.

If she’s able to both clarify that she does not intend to subject children to electronic monitoring, and, if so, just for the avoidance of doubt, change the language to “the adult” as opposed to “the person” would be really, really useful. I think this is particularly important because we’ve seen that there are other provisions and other clauses that enable immigration officers, for example, to get equipment and therefore there will be those interactions between immigration officials and the people subjected to electronic monitoring. I cannot see a particular benefit of—well, it would be good to understand if the Minister thinks there is, if any, a benefit of having an under-age person being subjected to electronic monitoring, and, if so, what are those? Again, seeking support for my amendment 23.20.07 and clarification of under-age people subjected to electronic monitoring.

Thank you, Madam Chair. I wanted to speak to Subpart 8, which, to my mind, is one of the most important parts of the bill, because it implements the, I think, more or less sort of final stages of the implementation of Victoria Casey’s—Casey KC, as the Minister has been saying—long list of recommendations that she made. I have a particular identification and strong attachment to this work. I was the Associate Minister when the report was done by Amnesty International and the Asylum Support Seekers Trust. With the support of Kris Faafoi, the Minister at the time, we asked Immigration New Zealand to commission Victoria Casey. I will note, for the record, that in discussions with officials, Immigration New Zealand, stoutly defended their track record and said that there was nothing to see here and that Immigration New Zealand’s practice in this area was entirely consistent with New Zealand’s international obligations. Victoria Casey found the opposite to be true. That was an interesting moment.

CHAIRPERSON (Maureen Pugh): And your question is?

Hon PHIL TWYFORD: Well, the question is, really, that Victoria Casey delivered a pretty solid reform agenda. I think there is good cross-party support for all of this implementation. But the Minister, with this bill, hasn’t implemented all of her recommendations. In relation to clause 27, irregular arrival is excluded as the sole basis of detention, but the bill doesn’t expressly rule out things like administrative convenience or immigration compliance objectives; why not?

Victoria Casey also recommended, in line with United Nations High Commissioner for Refugees (UNHCR) guidelines, that detention be reviewed within 48 hours and that maximum time limits be established. The bill retains the four-day initial detention period before judicial oversight; why is that?

Third, why doesn’t the bill prohibit the detention of asylum seekers in corrections facilities? This was one of the strongest recommendations by Victora Casey. The Amnesty International investigation showed how traumatic and dangerous it was for asylum seekers to be locked up in the Mt Eden remand facility. There were many examples of trauma and violence and abuse that asylum seekers were subjected to. Given how the Government set up managed isolation and quarantine facilities during COVID, which could be guarded by security guards in a way that was secure, surely there is no need to retain, as this bill does, prisons as a detention facility of last resort for asylum seekers.

Further, UNHCR told the Education and Workforce Committee that child refugees should never be detained for immigration-related purposes and that families with children should never be separated from their families in detention. I’ll ask the Minister: why did she not support that advice?

In light of all that, I wanted to speak to my tabled amendment to clause 27, which makes a number of proposals. It proposes to insert in amended section 310(1) a new paragraph (f) “any use of the powers of arrest and detention may only be exercised as a last resort, acknowledging that liberty is the default position”.

Hon Erica Stanford: What number? Sorry, Phil.

Hon PHIL TWYFORD: I’m sorry, I don’t have the timestamp on that particular one.

Next, a new paragraph (g): “the powers of arrest and detention may not be used for purposes not expressly permitted by the Act”. Further, new paragraph (h): “any use of the powers of arrest and detention must receive judicial review within 24 to 48 hours of the initial detention”. That would bring us in line, I believe, with UNHCR guidelines. New paragraph (i): “any continuous detention must be reviewed independently at intervals of no longer than seven days, with the burden of proof on the Crown to justify both initial and continued detention”. New paragraph (j): “no detention is permitted for longer than 28 days, during which time, detained refugees and asylum seekers must be guaranteed the right to information in a language they understand, prompt and confidential access to a lawyer, and to bring judicial proceedings challenging the lawfulness of their detention”. New paragraph (k): “no detention is permitted of a person or persons under the age of 18, nor of families with children, nor any detention that separates parents from children”. Finally, new paragraph (l): “prisons and correctional facilities may not be used for detention purposes”.

Now, I believe the effect of this amendment would be to ensure that this bill fully reflects the recommendations made by Victoria Casey KC. I urge the Minister to give it serious consideration.

Thank you, Madam Chair. I would also like to speak on a new part of the bill under Subpart 8 that we haven’t covered yet, as well as one of my amendments. That is clause 40 inserting new section 324F(3)(d)—this is on page 31, line 11 of the bill—where it says, “a condition that the released person take a specified action for the purpose of facilitating the person’s deportation or departure from New Zealand:”. The issue that has been raised in this specific clause is, while it is comparable or has parallels to the previous paragraph (c), the released person in this case—because it’s about facilitating the person’s deportation—needs to specify that that released person is a non-claimant.

The concern would be it would not be appropriate where a refugee claimant’s claim that has not been finally determined for someone who is, for example, going through—and the deportation departure risks breaching Aotearoa New Zealand’s non-refoulement obligations under the refugee convention. This particular amendment is just to ensure that we are not going to capture those instances where claimants are also going to be factored into this particular part. That’s a very small and discrete amendment—sorry, the amendment is 8.40.32.

Thanks, Madam Chair. I really appreciate the opportunity. I just want to seek clarification from the Minister of Immigration, who has already covered this, but in her reply, I would just like to revisit and just quickly go back to clause 25, which amends section 286 in the principal Act, “Powers of entry and search relating to deportation”. The Hon Phil Twyford asked some questions to do with the Dawn Raids, and what I want to get assurance on from the Minister—who replied to the Hon Phil Twyford’s question—is just around the out-of-hours warrant and new section 293B(2), that the application is made to the District Court judge and that it is to take into account, when the judge is doing the warrant and approving it, proportionate and vulnerable protections.

Minister, what I want to ask you is that (a) do you have officials—because I appreciate that it’s operational and that you would get reporting from time to time as would expect—who give the breakdown of those out-of-hours warrants? Also, is there any other information that’s provided to you with respect to the fear and the trauma that it leaves with, particularly, New Zealand citizen families? I don’t support that they’re harbouring sometimes, but they’re really complex situations. The reason why I ask for clarity around that, Minister, whether you get some of that other information, is because in electorate offices like mine, it is the family members who are legal citizens who come to the office seeking any other way to help their people, or family members, who have been arrested or removed in out of hours. From time to time, these family members are coming to MPs of different parties and expressing their strong views around that. I just wanted to request and ask: is any of that official information passed on to you, Minister? Thank you.

This is a section we’ve been over, but, to repeat myself: any out-of-hours activity needs to be signed off with a judicial warrant, and the judge will have to take into account many factors. Is it the last resort? Has everything else been discounted, are there vulnerable people in the house, are there any other things that would mean that this was not the appropriate action to take? Those safeguards are baked in.

I just want to go through some of Phil Twyford’s questions. The question was proposing to include provisions guaranteeing the right to information in a language they understand, and legal representation. This is already provided for in the New Zealand Bill of Rights Act. We have a question around a proposed amendment to ban the detention of children. It’s, again, very unlikely this would happen. A judge is unlikely to consider this as proportionate, reasonable, or the least restrictive measurement necessary. Those things are already built in.

More broadly, on amendment 6.20.01, these changes would make substantive changes to the detention regime and require significant reworking of Part 9 of the Act, and operational changes like purpose-built detention centres would need to be considered, given the member’s requirement that prisons and correctional facilities may not be used for detention purposes. This is not something that we will be considering.

Thank you, Madam Chair. I wanted to speak to my amendment 23.20.03 in relation to clause 26. Apologies, sorry, it’s 23.20.04—my bad, they were just next to each other. This is in relation, also, to clause 26. The question I had for the Minister of Immigration was: we’ve talked about the Heron KC report throughout the questions, and it’s been mentioned in the answers, but one of the recommendations there and one of the options that was given was to limit out-of-hours immigration rates to situations involving public safety or matters of national security.

Can I ask the Minister: why not just follow that recommendation, and rather than leaving it at the discretion of basically a judge, just make it extremely clear that we’re narrowing it down to two specific criteria to then prevent loading the judiciary with additional work to be able to determine as to when out-of-hours visits are appropriate or otherwise? And to just then create two very specific situations noted by the Heron KC report.

I also note this because what we’ve noted throughout the debate in terms of the role of the judiciary when it comes to decision making of the different provisions of the bill, is that there seems to be a bit of a contradiction—not contradiction, but I guess a different application of how the Minister chooses to trust the judgment of a judge—for example, when it comes to liability of deportations where that’s being passed on to Immigration New Zealand. But it seems like she is quite happy to then leave that to a judge when it comes to out-of-hours visits. I think in some ways by being able to restrict the two criteria to just public safety and matters of national security, I think we could just better strengthen the rights of people who could be subjected to out-of-hours visits and genuinely honour these recommendations and the apology that happened in relation to the Dawn Raids.

One of the other areas that I wanted to go back to is to—and in one of her contributions I did appreciate her engagement around the definition of “security”. During the debate, I went back to the principal Act and noted that the way that security is defined is not just to provisions of terrorism that she noted; it also includes provisions around affecting our reputation, for example, which is actually quite broad. I think it’s a little red herring, maybe, or just a very extreme example to just point out the terrorism components of the definition of “security” but not recognise that, actually, we have quite a broad definition when it comes to “reputation”.

How does the Minister see the definition of “reputation” impacting the ability for the Minister to, effectively, make someone liable for deportation should they—sorry, to strip someone’s residency and put them on a temporary visa, should they be deemed as a risk to our reputation? I know she used the example of terrorism. But I think we’ve got to be intellectually honest with ourselves. I’m not, sorry, accusing the Minister of otherwise, but it’s just like, let’s be clear about what, actually, the definition of “security” is.

The questions were simply just: would she support my amendment to narrow the scope that out-of-hours visits can happen? Can she please clarify how she would apply the provisions in the principal Act on security when it comes to reputation for the purposes of stripping someone’s residency away should they be deemed a threat to our security—not just the most extreme examples—when it comes to terrorism? I would appreciate the engagement and particularly her commitment to the options given in the Heron KC report.

Dealing with those two in reverse order, the definition of “national security” is not in scope of this bill; it is a previously determined definition and we won’t be entertaining any changes, as it’s not in scope.

Look, in terms of the tabled amendment 23.20.03, in the name of the member, essentially, this is deleting—

Ricardo Menéndez March: I meant 04, sorry—04—23.20.04.

Hon ERICA STANFORD: OK. Well, let’s deal with them both, since we’re here. Because 23.20.03, essentially, is deleting clause 26, which is just removing the ability to do an out-of-hours compliance visit, and of course we will not be supporting this. It is really important that there is an option of absolute last resort that has plenty of safeguards and guardrails around it in terms of the fact that we need to go to the judge to get a judicial warrant in order to undertake this activity. As I’ve already mentioned on two or three occasions now, all those safeguards exist there. But the point is that there are always people who use this as a loophole because they know that if they are in a certain place at a certain time, compliance activity cannot be undertaken, and it makes it very, very difficult for Immigration New Zealand to make sure that people are abiding by the terms of their visa and—if it is time for them to leave the country—that we are able to undertake that activity. But, as already mentioned, we have looked at the recommendations of the Casey report and made sure that we’ve put all those safeguards in place.

Just also, while I’m here, it reminded me of a question that Phil Twyford asked earlier about the recommendations of the Casey review. I think there’s only one more that we need to put in place, and that’s coming in the next bill that we’ll be introducing. I’ll get to 23.20.04 in a second.

I move, That debate on this question now close.

CHAIRPERSON (Barbara Kuriger): I’ve been watching for the last hour, and I was here for the hour before this, and I’ve just observed that the spokesperson for Labour has a couple more burning questions. But I’m indicating that now—and the Minister has been very engaging—so, the Hon Phil Twyford, I’ll take a couple of questions from you. Thank you.

Thank you, Madam Chair. We haven’t yet dealt with electronic monitoring, clause 42, or clause 47, charging of premiums—two very important parts of the bill. But I wanted to speak to my amendments around clause 32. Now, this is important. We’ve dealt with a similar issue in principle, but not in relation to clause 32. It’s really about the precise wording that would justify, in this instance, detention of an asylum seeker. Clause 32 inserts new section 317AA, which sets out the options available to a District Court judge when considering an application for a warrant of commitment. The Law Society the Education and Workforce Committee expressed concerns about the phrase “threat or risk to public order” in new section 317AA(4)(a). So this is the core of the justification for a warrant of commitment.

Now, neither the United Nations High Commissioner for Refugees guidelines nor the Casey report identify failing to comply with the Immigration Act as a factor which justifies detention. Both of them say—both the guidelines and the Casey report—that short-term detention may be justified where there are threats to national security or public safety or genuine and real risks of absconding. I agree with the Law Society on this case that detention outside of those limited circumstances is not justified. My amendment to clause 32, in new section 317AA(2)(b) “after the word ‘risk’, insert ‘of absconding’ ”, because, at the moment, risk, just on its own, is extremely broad. Risk of what? I think it would be better if we insert the words “of absconding” after the word “risk”. Also, in the second tabled amendment to clause 32, new section 317AA(2)(b); so in subsections (2)(a) and (2)(b) of new section 317AA, let’s tighten up “risk” by inserting the words “of absconding”.

We’ve dealt with this one before. This is not the first time that this has come up—the deletion of this: that they have to comply with the Act. I already made this point that not complying with the Act might be something like not abiding by your RRRA—residence and reporting requirements—or something like you were not where you were supposed to be and you weren’t reporting in, for example; or something that might be against the Act will be failure to turn up to an interview. There are a number of things that are really important around retaining that part that Mr Twyford wants to get rid of in that amendment. But I’ve dealt with that before in someone else’s; that’s not the first time that’s come up.

I move, That debate on this question now close.

Motion agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 445 amending new clause 40A be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 445 amending new clause 40B be agreed to.

The question is that Ingrid Leary’s tabled amendment to Amendment Paper 445 deleting new clauses 40A and 40B be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 445 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4(1), amending the definition of “first available craft” to insert “or after a representative of the person being notified”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4(1), amending the definition of “first available craft” to insert “unless in exceptional circumstances”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4(1), amending the definition of “first available craft” to insert “and section 166”, be agreed to.

The question is that Ricardo Menéndez March’s tabled amendment to clause 4(1), amending the definition of “first available craft”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4(1), amending the definition of “irregular entry into New Zealand” to insert “willingly”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8, new section 52(4E)(b), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8, new section 52(4E)(c), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8, new section 52, inserting new subsection (4F) relating to ministerial discretion, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8, new section 52, inserting new subsection (4F) to review the effectiveness of a special direction, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, new section 53(4A)(a), be agreed to.

The question is that Vanushi Walters’ tabled amendment to clause 9, new section 53(4B), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, new section 53(4D), inserting new paragraph (aa), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, new section 53(4E)(b), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, new section 53(4E)(c), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, new section 53, inserting new subsection (4F) relating to ministerial discretion, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, new section 53, inserting new subsection (4F) to review the effectiveness of a special direction, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 10, new section 57(6), inserting new paragraph (aa), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 10, new section 57(7)(b), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 10, new section 57(7)(c), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 10, new section 57, inserting new subsection (8) relating to ministerial discretion, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 10, new section 57, inserting new subsection (8) to review the effectiveness of a special direction, be agreed to.

The question is that Vanushi Walters’ tabled amendment to clause 11, new section 61B(3), inserting new paragraph (e) relating to the Genocide Convention, be agreed to.

The question is that Vanushi Walters’ tabled amendment to clause 11, new section 61(3), inserting new paragraph (e) relating to Human Rights or humanitarian issues, be agreed to.

The question is that Ricardo Menéndez March’s tabled amendments deleting clauses 12 to 14 be agreed to.

The question is that the Hon Phil Twyford’s tabled amendment to clause 13, replacing section 75A(1), be agreed to.

The question is that Ricardo Menéndez March’s tabled amendment deleting Subpart 5 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 18, deleting subclauses (1AA) and (1), be agreed to.

The question is that Ricardo Menéndez March’s tabled amendment deleting clause 26 be agreed to.

The question is that Ricardo Menéndez March’s tabled amendment to clause 26, new section 293B(3), amending paragraph (e) and inserting new paragraph (f), be agreed to.

The question is that Vanushi Walters’ tabled amendment to clause 26, new section 293B(3)(c), be agreed to.

The question is that Vanushi Walters’ tabled amendment to clause 26, inserting paragraph (f) into new section 293B(3), be agreed to.

The question is that the Hon Phil Twyford’s tabled amendment to clause 27, inserting new subclauses (3) to (10), be agreed to.

The question is that the Hon Phil Twyford’s tabled amendment to clause 32, new section 317AA(2)(b)(i)(A), be agreed to.

The question is that the Hon Phil Twyford’s tabled amendment to clause 32, new section 317AA(2)(b)(i)(B), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 32, new section 317AA(4), deleting paragraph (b) of the definition of “threat or risk to public order”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 40, new section 324F, be agreed to.

Ricardo Menéndez March’s tabled amendment deleting clauses 42 and 43 is ruled out of order as being inconsistent with a previous decision of the committee.

The question is that Ricardo Menéndez March’s tabled amendment deleting clauses 52 and 54, and subclause (4) of clause 36, be agreed to.

The question is that Ricardo Menéndez March’s tabled amendment to clause 42(1), inserting “no more than 1 month” in new paragraph (da) of section 324F, be agreed to.

The question is that Ricardo Menéndez March’s tabled amendment to clause 42(1), inserting “, if an adult” in new paragraph (da) of section 324F, be agreed to.

The question is that the Hon Phil Twyford’s amendment to clause 42(1), new paragraphs (db) and (dc), be agreed to.

The question is that Vanushi Walters’s tabled amendment to clause 43, new section 324J(3)(d), be agreed to.

The question is that the Hon Phil Twyford’s tabled amendment to clause 47, new section 351A(1), be agreed to.

The question is that the Hon Phil Twyford’s tabled amendment to clause 48, to insert new subsection (8), be agreed to.