Immigration (Fiscal Sustainability and System Integrity) Amendment Bill

Members, we come now to Part 3. Part 3 is the debate on clauses 57 and 58, “Consequential amendments”, and Schedules 1 and 2. The question is that Part 3 stand part.

Thank you. We’ve just got a couple of questions—

CHAIRPERSON (Barbara Kuriger): Oh, sorry. The question is that Part 3 stand part.

INGRID LEARY: Thank you, Madam Chair. The consequential amendment in clause 57, “Schedule 1AA amended”, basically inserts the part set out in Schedule 1 and makes all the necessary consequential amendments, which includes creating a new Part 4. We just have questions around what the impact of that is from a rule-of-law perspective regarding the new ministerial powers that might come into effect, because the people could be out in the community on conditions under the original Immigration Act or other Acts.

Then new powers have been conferred by new section 324F, inserted by clause 40. I don’t think there has been a New Zealand Bill of Rights Act (BORA) vet, but I do understand that there has been section 7 advice. So we’re trying to understand what would happen if a new condition was imposed on somebody under those circumstances.

It could be an oversight, and my question is a kind of policy question, I guess. Is that an intentional oversight to extend powers to Ministers? Does the Minister accept that it’s a BORA issue and would she want to have a look at it and maybe close it up if it is, or is it something that happened unintentionally? I think it would be important to have some more legal questions on that.

I’m just laying out what the substance of the policy question is, which is about the impact of this section and schedule on situations where existing conditions have been imposed on people and are now swapped out and there are broader powers for conditions to be made.

Thank you, Madam Chair. Perhaps just to add some detail to the issue that Ingrid Leary is raising, I wanted to compare the two separate powers—so the existing power to impose conditions, versus what’s being proposed here to impose conditions—because they are different. So the current power is under section 320(1). The language there is that “the conditions imposed on release may be any conditions that the Judge thinks fit to impose in the circumstances, including all or any of the following:”. It then lists three quite specific potential conditions that can be imposed. So applying the rules of statutory interpretation, ejusdem generis says that the general word shall not extend in its effect beyond the subjects that are listed. In this case, again, while it appears to be broad power, it’s actually listing three very specific circumstances.

The new power, which, again, Part 4 is referencing for these people who already have conditions imposed on them under section 320, is new section 324F, inserted by clause 40. Now, in that new power, it feels like much more of what I would call a God grant. So the power’s very broad. It says in subsection (3) “may impose any other condition that the Judge thinks fit to impose in the circumstances, including,”—and then it uses the words—“without limitation”. Those are the key words here, because it says to me that the powers to grant conditions are much broader than those foreseen in the current legislation, where the three specific instances, if you like, are listed quite explicitly.

Then you go from there to the section 7 advice to the Attorney-General, which does examine whether this is a reasonable limitation on freedom of movement and association generally. It concludes that they are. So, again, no section 7 New Zealand Bill of Rights Act vet. However, it doesn’t consider the circumstances where you could have someone who had been detained, partially because of criminal offending, had conditions imposed on them under current section 320, and once this bill passes into law, would have new conditions put on them on the basis of their past offending. Now, that would potentially rub up against section 26(2) of the New Zealand Bill of Rights Act, which says, “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.” So the courts have taken quite a broad view in terms of what constitutes being punished. So certainly the imposition of further conditions could fall within the scope of what the New Zealand Bill of Rights Act is considering here. It just strikes me that it’s not something that legal advisers turn their minds to and it’s not articulated as an issue in the New Zealand Bill of Rights Act.

So at this committee of the whole House stage, I’m just wanting to hear from the Minister whether she had turned her mind to these circumstances, and if someone had been convicted or acquitted or pardoned of something, whether that occurrence, if you like, could be considered as part of justifying the imposition of new conditions under this new section, under the new Act, that would not have been possible under current section 320.

I just think it’s important to clarify that this part that we’re talking about relates to the civil detention components, so criminal convictions and all of that stuff has nothing to do with this part. This is about the continuation of existing conditions and, therefore, variations of conditions that would occur under this, so it’s a very different component.

Thank you, Madam Chair. I just have one question for the Associate Minister of Immigration on Schedule 2, so this is clause 58, “Consequential amendment”, in Part 3. In Schedule 2, it makes an amendment to the Search and Surveillance Act, particularly the item relating to section 293B, where we’re looking at “may apply for and execute warrant to enter a dwelling or marae and search for a person”. I want to check with the Minister in terms of the scenario—for example, because it says “dwelling or marae”.

I want to check if “dwelling” is based on the definition, if any, in the Search and Surveillance Act 2012, or are we looking at the definition of “dwelling” that we have just seen in a previous part of this bill, which is clause 25, new subsection 286(3)? In that particular definition “dwelling”, it does specify that “ ‘dwelling’ means any building or part of a building that is used for residential accommodation of any kind, and includes a garage or shed associated with a building or part of the building”. However, in both that definition of “dwelling” as well as marae, you’re looking at a fixed construct essentially, but not necessarily the grounds. So, for example, hypothetically speaking, if a person is in a tent either on the grounds of a property or within a precinct of a marae, does that mean that an immigration officer could not search that because it’s neither a dwelling nor a marae?

Thank you, Madam Chair. I’ve got a specific question in relation to Schedule 2. One of the grey areas in relation to immigration officers’ ability to enter different premises is in relation to faith-based institutions. I raise that because, quite a few years ago now—this would have been under the previous National Government—we did have, for example, some Indian students who were facing deportation. They were in the Unitary Church because that was one of the institutions that are often deemed to be out of touch for immigration officials.

Simon Court: If you’re here illegally—

RICARDO MENÉNDEZ MARCH: What I’m seeking clarification for is—

Simon Court: —you should be sent home.

RICARDO MENÉNDEZ MARCH: —whether it’s by convention—pardon?

Simon Court: If you’re here illegally, it shouldn’t matter where you’re hiding.

RICARDO MENÉNDEZ MARCH: Well—interesting. The member may wish to seek a contribution if he wants to challenge my question.

The question here is about whether the current definition of “dwelling” would include faith-based institutions. That is important because—not just in New Zealand but, actually, across different jurisdictions—faith-based institutions have been one of those areas that are seen as sort of safe havens for people who may be trying to, for example, resolve an appeal or even have a current appeal in front of a Minister or the Immigration and Protection Tribunal while they may be liable for deportation. I do want to understand how those institutions may be captured or otherwise under Schedule 2.

I think clarification on that would be useful, because we do have a history of faith-based institutions being safe havens for migrants who may be appealing to the Minister, for example—which is their right, despite what the heckles from the ACT Party might otherwise try to assume.

Thank you, Madam Chair. I just wanted to make a brief contribution to clarify my earlier question to the Minister. I do understand that it’s a civil regime, but my question was more in relation to the New Zealand Bill of Rights Act, section 26(2), which is about a second punishment, and that punishment could be a civil punishment. A second punishment, even if it’s a civil punishment, then touches on section 26(2) if the decision maker is bearing in mind a prior conviction or a prior acquittal or a prior pardon as part of their decision making to impose the civil punishment. In this case, the civil punishment would be the imposition of those further conditions.

I move, That debate on this question now close.

The Minister’s just taking some advice so I’ll just see if the Minister wants to take a call first before I take a motion.

Yeah, I think we’re getting back again—it’s not a civil punishment. This is a detention process that is being managed in the immigration process that we’re talking about. This is not a punishment; it’s a detention process.

I move, That debate on this question now close.