Address to Wellington District Law Society

Introduction
It is a pleasure to be invited to address you this evening. I know many of you are keen to hear about the changes within my immigration portfolio, in particular, with regard to the Immigration Bill and the way in which human rights and our national interests interact in the Bill.

Tonight I want to start off by setting the scene for immigration in New Zealand. I’m going to talk about how the new legislative frameworks we are putting in place through the Immigration Change Programme will set the standards for immigration before I talk specifically about the Immigration Bill and how New Zealand’s national interests and human rights interact in the Bill.

I understand that WDLS made a comprehensive submission on the Discussion Document and you are in the process of finalising your submission on the Bill. The Bill is now in the hands of the Select Committee, and it would therefore be inappropriate for me to comment directly on it.

Immigration Change Programme
Firstly, the Immigration Change Programme. There are three pillars to this programme – the Immigration Act, Immigration Policy Framework and Immigration Business Transformation. These three pillars form a cohesive, integrated Change Programme. The Change Programme will deliver the three S's – skills, security, and settlement.

Firstly, skills, our feedback shows that employers are satisfied with this part of the programme. 81 per cent of employers were impressed with the performance of their skilled migrant staff – this is an excellent achievement. Added to this, our research tells us that 90 per cent of skilled migrants were either "satisfied" or "very satisfied" with their lives in New Zealand. This tells us we are hitting the mark with this part of the programme.

We have also made excellent progress in maintaining and enhancing New Zealand’s border security. When the Labour Government took office in 1999, we inherited a situation where the previous National administration had appointed just one immigration fraud officer after nine years in power. In contrast, we now have a fully-fledged investigations unit with 18 staff including a manager, investigators and support staff. Their work resulted in 55 successful prosecutions in 2005-06 and 31 successful prosecutions in the 11 months to 31 May 2007, compared with one in 1999.

We also recognise the importance of rapid and comprehensive settlement. We are doing some important work in this area. Attracting and retaining skilled migrants is crucial to the Labour-led Government's vision for this country. Recently I launched the Revised New Zealand Settlement Strategy. This Strategy provides an over-arching framework for more specific national and regional initiatives. It is key to both attracting and maintaining skilled migrants. The easier we make it for migrants to integrate into New Zealand life, the better placed we will be in the future.

Immigration Bill
The major piece of work in my portfolio at the moment, is of course, the new Immigration Bill which has just had its first reading – and as you know submissions on this Bill close on Friday.

As I have said in previous addresses, twenty years is a long time, and the legislation which came into force in 1987, was well and truly overdue for an overhaul.

I am confident that this new legislation will provide the means to clarify and strengthen the existing law. It will provide huge benefits to New Zealand, and particularly to yourselves – the people who are working with the legislation every day.

So why did we review the legislation? The Government reviewed the Immigration Act 1987 to ensure that New Zealand's immigration law encourages the entry of the people we need, to plug the gaps in the labour force, while effectively protecting our borders.

The Bill is framework legislation that modernises and simplifies the immigration system. It will give New Zealand a more robust and accountable system that will create and hold public confidence. It also ensures compliance with New Zealand’s immigration related international obligations in a more transparent way.

It will support the New Zealand workforce - through facilitating access to skills and labour and contributing to output, productivity and economic transformation. The Bill will also allow us to tighten the security at our borders at a time when we are seeing heightened risks and terrorist acts internationally. The integrity of the immigration system is vital to the security of our country.

Facilitation/streamlining
Aspects of the Bill are also focused on streamlining processes and making them fairer, more efficient, and more facilitative of the migrants we need in New Zealand.

There are some other big changes in the pipeline. We are proposing a visa system that provides for greater simplicity and flexibility in managing non-citizens’ travel to, and stay in, New Zealand.

We are also proposing a new integrated international protection determination procedure. This would ensure that all claims for international protection are assessed together to provide for a more efficient and fair determination of our obligations.

We have proposed a single independent appeals tribunal to establish a robust, independent single-appeals system, based on a new Immigration and Protection Tribunal. This would create greater efficiencies in the overall immigration system, again while maintaining high standards of fairness – this is important.

We also propose to introduce additional safeguards in cases where foreign nationals are detained under the law, including legal aid for detainees who meet criteria and tiered restriction on detention after six and 12 months. It is proposed to extend the maximum period of detention without a warrant to 96 hours. This is intended to help reduce the overall time taken for turnarounds at the border and reduce the need for detention in police and corrections facilities.

In addition to current information-sharing provisions, the Bill allows information to be shared with publicly-funded service providers who require immigration status information to establish eligibility for those services, and with employers to establish entitlement to work.

The Bill provides additional support for the settlement of migrants, refugees, and protected persons, we will be doing this through facilitating compliance with our immigration-related international obligations.

Improved security
The Bill will strengthen New Zealand’s security by supporting:
•robust decision-making both on and offshore
•secure borders, and
•the ability to manage risk in New Zealand

Robust decision-making will support security through:
•up-to-date exclusion criteria that clearly set outs those people we don’t want – people with serious criminal convictions or who are a risk to New Zealand
•using classified information in immigration and refugee and protection decision-making. Decisions can be made on the basis of all available information
•using biometric information to establish a person’s identity, thus reducing identity fraud.

Border security will be supported through:
•more flexibility for screening airline passengers before they get on a plane to New Zealand
•using biometric information to confirm a passenger’s identity when at check-in, when boarding a flight, and when arriving at a New Zealand airport
•enhanced compliance and enforcement powers so immigration officers can conduct searches at the border to prevent, detect and investigate immigration offences
•The ability to detain without a warrant of commitment for up to 96 hours which means detainees do not have to be transferred to Corrections facilities. This allows for a quicker and easier turnaround at the border for those denied entry.

New Zealand’s national interests and human rights
As I have said from the outset in my time as Immigration Minister, immigration should not be a political football, this has been the case for too long. Most of the goals within the Bill are not inherently party political but derived from national interest.

Our immigration system is there to serve New Zealand’s national interest. It has been one of my key objectives since becoming minister to depoliticise this portfolio. There is every reason to do this. New Zealand's national interests in immigration are easily defined; to get more of the skills and labour we need to support economic growth; to keep our borders secure, and to assist migrants to settle and contribute once they get here.

It would be fair to say that since receiving feedback via public submissions on the April 2006 draft document, I have sought to rebalance the Bill in favour of enhanced safeguards for human rights.

There is nothing innately party political in those objectives and I am pleased that there is a good level of cooperation with the opposition on the Immigration Bill which we are currently receiving submissions on.

So how do we balance our national interests with human rights?
New Zealand takes its international obligations towards refugees seriously. The Bill reflects this by directly incorporating the Refugee Convention. The Bill also takes the additional step of codifying the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

New Zealand’s obligations extend to those refugees within New Zealand’s borders. The obligations on countries to the Refugee Convention do not extend to refugees who are outside the host country. Nevertheless, New Zealand is one of the few countries in the world, with a refugee quota programme, which allows offshore refugees protection in New Zealand. The Bill recognises the status of these people as refugees.

Absolute discretionary powers
I know you have expressed concern about the Bill providing “absolute discretionary” powers.

These powers reflect the status quo under the Immigration Act 1987, but are drafted in a different way by defining the expression “absolute discretion”.

The “absolute discretion” powers apply when an exception outside the normal course of the law is being sought. It provides flexibility for the Minister or immigration officers, where appropriate, to make a positive exception to the law, where it otherwise would not have been made. There will of course, continue to be various avenues of appeal available, including, departmental reconsideration.

Immigration Commissioner
I am aware that WDLS has suggested that an Immigration Commissioner should be appointed under the Bill to provide independent oversight in immigration matters.

The functions identified by the WDLS as potential functions of an Immigration Commissioner are already provided for by other independent bodies, including the Immigration and Protection Tribunal, the courts, the Office of the Ombudsmen, the Human Rights Commission, and the Privacy Commissioner. These bodies provide essential oversight of immigration decision-making and the actions of the Department and departmental officers. The Department of Labour (the Department) also has the ability to receive and action complaints to the Deputy Secretary, about immigration processes.

In effect, creating an Immigration Commissioner could amount to a separate avenue of review and appeal for non-citizens, and could contribute to significant delays in immigration processes. This would be contrary to the principle of “firm, fast and fair decision-making” that underpins the Bill.

Note there will be an independent Immigration Tribunal to hear appeals.

Provisions relating to misleading or fraudulent information
Immigration fraud is a paramount issue confronting the immigration system and one that the government does not take lightly.

The Bill does not set out requirements that the fraud be material before a prosecution may be taken. The materiality of the fraud, for example, would be a factor in deciding whether to take a prosecution and would also impact on sentencing

The Bill also provides that a person may be liable for deportation on the basis of a visa procured by fraud. In such cases the fraud must be linked to the procurement of the visa. Inconsequential fraud that arises in the process of a visa application could not be grounds for liability for deportation would not be made out. Therefore, there is an implicit “materiality” requirement.

The provisions in Bill, which allow an information to be laid for an act or fraud within two years of when it occurred, reflects the reality that the detection of immigration fraud may take considerable time, and that the Department must be able to respond to it. This is particularly important given that immigration officials do not have police powers to investigate such matters.

The Advanced Passenger Processing system
The Advanced Passenger Processing system, as provided for in the Bill, is not inconsistent with New Zealand’s obligations under the Refugee Convention.

New Zealand’s obligations towards refugees do not extend to those beyond our borders (offshore). We have clear obligations to refugees within New Zealand. We also have an obligation to ensure that New Zealand maintains the ability to identify persons of risk, and work to ensure they do not reach New Zealand. The APP system provides a mechanism to achieve this.

New Zealand has a refugee quota programme by which refugees off-shore are granted refugee status in New Zealand.

Conclusion
As I have mentioned the Immigration Change Programme forms the basis of New Zealand’s immigration policies. We are focusing on three areas or ‘the three pillars of change’ - the Immigration Act, Immigration Policy Framework and Immigration Business Transformation. These three pillars form a cohesive, integrated Change Programme. The Change Programme will deliver the three S's – skills, security, and settlement.

The Bill, which I have talked broadly about tonight will modernise and simplify our immigration system. Giving us a more robust and accountable system that will create and hold public confidence. It provides a balanced response to complex security issues with appropriate safeguards for heightened border protection and improved security processes.

As you know, the Bill is now before the Select Committee and submissions close this Friday. It is now up to the Committee members to consider submissions and make the crucial decisions on what the final legislation will look like.