Immigration law for a changing world
Monday 25 June 2007, 2:59PM
By Hon David Cunliffe
534 views
Aristotle taught us some 2400 years ago that even when laws have been written down, they ought not always remain unaltered. It is 20 years since the present Immigration Act was passed, well and truly time for new legislation to reflect a much-changed world.
---------------------------------
Address to LexisNexis Immigration Law Conference
Heritage Hotel, Auckland
Aristotle taught us some 2400 years ago that even when laws have been written down, they ought not always remain unaltered.
In this fast-changing world, many of our laws need altering with some regularity to keep up with new challenges, new technologies and new realities.
When the present Immigration Act was passed in 1987, there was no Bill of Rights Act, there was no Reserve Bank Act, no MMP electoral system.
It was the year New Zealand last won the Rugby World Cup, the year the New Zealand and many international sharemarkets collapsed and David Lange won a second term in office - the latter two events were apparently not connected.
International terrorism of the kind witnessed on September 11 and in Bali was not even in the realms of fiction, let alone a reality that the law needed to cope with.
The 1987 Immigration Act was passed at a time New Zealand did not welcome migrants, despite being a nation built by immigrants since the ancestors of the tangata whenua arrived in their great ocean-navigating waka some 1000 years before.
In late 1973, the post-war economic boom had come to an end with the First Oil Shock and Britain joining the European common market, ending overnight the access for our primary products that had fuelled our prosperity.
The Norman Kirk Labour government of the day reacted to the sudden economic downturn by ending immigration rules that until 1974 allowed Britons to move to New Zealand as of right - they did not even need a passport.
As our economic travails worsened during the years of the Muldoon government that took office in 1975, migrants came to be seen as worsening our problems by taking jobs from Kiwis at a time of rapidly rising unemployment.
The infamous "dawn raids" took place to eject Pacific workers who had been welcomed in the 1950s and 1960s to work in our factories.
Immigration was not just cut to the bone, it was cut to the marrow, to the extent that at various times in the late 1970s and through the 1980s, more people left New Zealand than came here, causing net migration losses - a real "brain drain".
Nothing could be further from those days than the environment we are experiencing now as we stand poised to introduce legislation to replace the 1987 act.
The policy changes that followed the passing of the Immigration Act 1987 saw us move from allowing migrants almost solely from what were called "traditional source countries" - a euphemism for Britain, without the honesty of Australia's pre-1973 White Australia Policy - to welcoming migrants from anywhere in the world as long as they had the skills and other attributes we needed.
Since the late 1980s, under governments of all hues, immigrants have been increasingly seen as people who will benefit both the economy and society through the skills, diverse backgrounds and the financial and intellectual capital they bring with them.
This has not been without the occasional political and public controversy, but in general there has developed a political, academic, business, trade union and public acceptance that migrants bring more benefits than the contrary.
Our economy has been enjoying its longest period of continuous expansion since the 1960s. Our unemployment rate is one of the lowest in the developed world, and with that has come skill shortages that we are trying to fill by training Kiwis and by seeking skilled migrants to fill the gaps we cannot fill ourselves.
But we are not alone. Many other OECD countries are also seeking skilled immigrants to fill their own shortages and to arrest ageing or declining populations.
The world is now home to very large numbers of highly educated people who can literally pick and choose in which country they will live. Skilled Kiwis are among them. Young New Zealanders have always travelled overseas and while most have eventually returned, today more than ever before, skilled Kiwis can find work and residence all over the globe.
Without the New Zealand Residence Programme, which in the year ending this month will see about 47,000 migrant approvals, we would be in the unenviable position of experiencing a net migration loss instead of the modest net gain of around 11,000 we have achieved on this year's global brain exchange.
World-wide, on current net permanent migration figures, for every 100 old Kiwis who emigrate, nearly 150 new Kiwis arrive.
What we also know is that for every four young New Zealanders who go overseas for long-term OE, three come back again, enriched by the experience.
So, manufactured hysteria and cultural cringes aside, we are fortunate to have an immigration system that, overall, benefits our country well.
Is it perfect? By no means.
Many of the systems it uses are in need of an upgrade and the Immigration Act needs a complete overhaul.
And the increasingly competitive global competition for talent by the "Aging West" and now the Asian tigers mean we have no choice but to lift our game.
Immigration Change Programme
Against this background, we have found it is well and truly time to frame a new set of immigration rules, policy, operational settings and legislation.
As Lesley Haines noted earlier this morning, a successful immigration system requires all three core pillars of the Immigration Change Programme we are implementing.
It isn't simply about keeping up with the times. This is a long-term vision for immigration that acknowledges its importance to New Zealand and manages the risks:
First - the legislative base. This includes a vigorous review of the Immigration Act leading to a new Immigration Bill.
Second - the substantive policy mix: developing a new Immigration Policy Framework. It includes reviews of seasonal and non-seasonal work policies, work to residence, the Skilled Migrant Category, the Investor policy, Family-sponsored policy and temporary migrant flows.
Third - the operational side. This requires transforming the operational business of immigration from a reactive, border-focussed activity to one that proactively seeks the migrants we want, keeps out those we don't, and works consistently to a high quality from end to end. We are calling this the Immigration Business Transformation.
The new Immigration Bill
This of course is an immigration law conference. I am pleased to confirm that the introduction of the new Immigration Bill to the House is only a matter of a few weeks away.
It is no secret that, like the 1987 Act, the new law will be largely a framework legislation. It will complement the Immigration Policy Framework and Immigration Business Transformation.
This integrated change programme ensures that immigration can not only serve New Zealand's interests today, but also respond to the challenges of tomorrow.
This legislative reform modernises the immigration system, making it more robust, transparent and accountable.
The bill will manage immigration, by balancing the rights of the individual and the national interest.
In managing immigration in the national interest, the Bill seeks to support -
the New Zealand workforce - through facilitating access to skills and labour and thereby contributing to output, productivity and economic transformation
the security of New Zealand - through ensuring the integrity of the immigration system
the settlement of migrants, refugees, and protected persons - through facilitating compliance with New Zealand's immigration-related international obligations
New Zealand families - through enabling government policy to support the resettlement of families with ties to New Zealand, and
national identity - through immigration's impact on New Zealand's demographic make-up.
Safeguards
In protecting the rights of individuals, the bill will seek to provide:
Greater simplicity
A new visa system, and
A single independent appeals tribunal.
More certainty
Guaranteed entry to New Zealand for permanent residents, and
Clarified obligations on persons arriving in New Zealand.
It is important that our immigration legislation continues to provide flexibility, so the framework legislation will be fleshed out by the relevant policies.
The bill will be prescriptive, however, where clear minimum standards are required. In particular, it will be prescriptive in the areas of international protection, deportation, appeals, compliance and enforcement, and detention.
It is proposed to create a new integrated international protection determination procedure. This will codify in domestic legislation New Zealand's existing immigration-related obligations under the Refugee Convention, the Convention Against Torture and the International Covenant on Civil and Political Rights.
Such a change will ensure that all claims for international protection are assessed together to provide for a more efficient and fair determination of these obligations.
It will also strengthen New Zealand's already highly regarded refugee determination system and reflect best practice standards internationally.
The proposed bill will create a streamlined deportation process that is more efficient but maintains a high standard of fairness. It will be more efficient because liability for deportation will largely be fact-generated rather than dependent on individual ministerial decisions.
It will bring together numerous provisions in the 1987 act regarding removal, revocation and deportation into a transparent framework that clearly sets out a non-citizen's rights and obligations.
It is also proposed to establish a robust, independent single-appeals system, based on a new Immigration and Protection Tribunal, which replaces the four existing appeals bodies. The tribunal chair will be a District Court judge.
Unlike the current system, it is proposed to allow the tribunal to consider all grounds for appeal together in a single decision. This will create greater efficiencies in the overall immigration system, while maintaining high standards of fairness.
It will end, for good, the present problem of people using multiple appeals to stay in New Zealand for years at significant cost to the taxpayer and then claim that they cannot leave because they and their kids are now "well-settled."
It is proposed that it will allow classified information to be used in immigration, refugee and protection decision-making. Importantly, it will contain enhanced natural justice safeguards where classified information is used, such as allowing appeals against decisions where classified information has been used without disclosing the information to the person for comment.
I expect to be able to bring to the House legislation with a clean and unqualified Bill of Rights vet.
It is proposed to introduce additional safeguards in cases where foreign nationals are detained under the law, including legal aid for detainees who meet criteria and tiered restrictions on detention after six and twelve 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.
Immigration's contribution to wider government objectives
Immigration needs to be seen in terms of its role in supporting the government's overall policy objectives of economic transformation, families young and old, and national identity.
Economic transformation
The Labour-led government's vision is to transform New Zealand's economy to a dynamic, knowledge-based economy and society, underpinned by the values of fairness, opportunity and security.
Immigration is one key lever in this transformation.
I have already mentioned the skill shortages we have due to an aging population and the global 'talent war'. Three weeks ago I announced fine tuning of our pivotal Skilled Migrant Category - officials will expand on these for you tomorrow.
Low unemployment rate means it is vital to raise the level of productivity per capita. Targeted immigration can help achieve this, such as the new Active Investor Migrant policy I announced at the same time. Officials will also expand on this tomorrow.
Smart, strategic innovation must also avoid key risks. We must always ensure capable Kiwis get jobs first. Immigration should never substitute foreign for domestic labour because it is cheaper. Our new Recognised Seasonal Employer policy, for example, has that rule built in from the outset.
And we must avoid fuelling inflation by ensuring migration occurs at sustainable net levels, and that in economic terms it contributes to expanding economic capacity more than aggregate demand.
Families young and old
We must ensure our social infrastructure and settlement strategy are up to the task of integrating new migrants into productive work and a harmonious society.
It is important for people to be able to maintain a close relationship with family members living overseas.
Entry for the partners and dependent children of approved migrants is already uncapped, but demand for other forms of family reunion is high. This is likely to remain given our focus on Economic Transformation.
With this in mind, and we will not reduce the proportion of migrants admitted under the skilled stream to allow more under family reunification, we are exploring short-term and temporary entry policies for families. Watch this space.
National Identity
New Zealand today is about celebrating diversity. In January, I launched the Auckland Regional Settlement Strategy and its associated Action Plan.
Officials are currently working with local government in the Wellington region to develop a Wellington Regional Settlement Strategy.
We also have a whole-of-government long-term action plan - the Settlement National Action Plan involving 17 central government agencies. This action plan and the revised New Zealand Settlement Strategy will be launched in July.
Conclusion
New Zealand must transform its economy to sustain the living standards and opportunities that we seek for our families.
Smart, strategic immigration will increasingly make a vital contribution to our economic transformation by focusing on the key drivers of productivity: not only skills, but also capital, technology, and international connections.
We need an immigration law, policies and an operational structure that will help to ensure we achieve all these things, along with the border security to protect against new international threats.
When the Immigration Bill is introduced to Parliament soon, many of you will no doubt be involved in making submissions to the select committee. I will look forward to seeing and hearing what you have to say about it.
---------------------------------
Address to LexisNexis Immigration Law Conference
Heritage Hotel, Auckland
Aristotle taught us some 2400 years ago that even when laws have been written down, they ought not always remain unaltered.
In this fast-changing world, many of our laws need altering with some regularity to keep up with new challenges, new technologies and new realities.
When the present Immigration Act was passed in 1987, there was no Bill of Rights Act, there was no Reserve Bank Act, no MMP electoral system.
It was the year New Zealand last won the Rugby World Cup, the year the New Zealand and many international sharemarkets collapsed and David Lange won a second term in office - the latter two events were apparently not connected.
International terrorism of the kind witnessed on September 11 and in Bali was not even in the realms of fiction, let alone a reality that the law needed to cope with.
The 1987 Immigration Act was passed at a time New Zealand did not welcome migrants, despite being a nation built by immigrants since the ancestors of the tangata whenua arrived in their great ocean-navigating waka some 1000 years before.
In late 1973, the post-war economic boom had come to an end with the First Oil Shock and Britain joining the European common market, ending overnight the access for our primary products that had fuelled our prosperity.
The Norman Kirk Labour government of the day reacted to the sudden economic downturn by ending immigration rules that until 1974 allowed Britons to move to New Zealand as of right - they did not even need a passport.
As our economic travails worsened during the years of the Muldoon government that took office in 1975, migrants came to be seen as worsening our problems by taking jobs from Kiwis at a time of rapidly rising unemployment.
The infamous "dawn raids" took place to eject Pacific workers who had been welcomed in the 1950s and 1960s to work in our factories.
Immigration was not just cut to the bone, it was cut to the marrow, to the extent that at various times in the late 1970s and through the 1980s, more people left New Zealand than came here, causing net migration losses - a real "brain drain".
Nothing could be further from those days than the environment we are experiencing now as we stand poised to introduce legislation to replace the 1987 act.
The policy changes that followed the passing of the Immigration Act 1987 saw us move from allowing migrants almost solely from what were called "traditional source countries" - a euphemism for Britain, without the honesty of Australia's pre-1973 White Australia Policy - to welcoming migrants from anywhere in the world as long as they had the skills and other attributes we needed.
Since the late 1980s, under governments of all hues, immigrants have been increasingly seen as people who will benefit both the economy and society through the skills, diverse backgrounds and the financial and intellectual capital they bring with them.
This has not been without the occasional political and public controversy, but in general there has developed a political, academic, business, trade union and public acceptance that migrants bring more benefits than the contrary.
Our economy has been enjoying its longest period of continuous expansion since the 1960s. Our unemployment rate is one of the lowest in the developed world, and with that has come skill shortages that we are trying to fill by training Kiwis and by seeking skilled migrants to fill the gaps we cannot fill ourselves.
But we are not alone. Many other OECD countries are also seeking skilled immigrants to fill their own shortages and to arrest ageing or declining populations.
The world is now home to very large numbers of highly educated people who can literally pick and choose in which country they will live. Skilled Kiwis are among them. Young New Zealanders have always travelled overseas and while most have eventually returned, today more than ever before, skilled Kiwis can find work and residence all over the globe.
Without the New Zealand Residence Programme, which in the year ending this month will see about 47,000 migrant approvals, we would be in the unenviable position of experiencing a net migration loss instead of the modest net gain of around 11,000 we have achieved on this year's global brain exchange.
World-wide, on current net permanent migration figures, for every 100 old Kiwis who emigrate, nearly 150 new Kiwis arrive.
What we also know is that for every four young New Zealanders who go overseas for long-term OE, three come back again, enriched by the experience.
So, manufactured hysteria and cultural cringes aside, we are fortunate to have an immigration system that, overall, benefits our country well.
Is it perfect? By no means.
Many of the systems it uses are in need of an upgrade and the Immigration Act needs a complete overhaul.
And the increasingly competitive global competition for talent by the "Aging West" and now the Asian tigers mean we have no choice but to lift our game.
Immigration Change Programme
Against this background, we have found it is well and truly time to frame a new set of immigration rules, policy, operational settings and legislation.
As Lesley Haines noted earlier this morning, a successful immigration system requires all three core pillars of the Immigration Change Programme we are implementing.
It isn't simply about keeping up with the times. This is a long-term vision for immigration that acknowledges its importance to New Zealand and manages the risks:
First - the legislative base. This includes a vigorous review of the Immigration Act leading to a new Immigration Bill.
Second - the substantive policy mix: developing a new Immigration Policy Framework. It includes reviews of seasonal and non-seasonal work policies, work to residence, the Skilled Migrant Category, the Investor policy, Family-sponsored policy and temporary migrant flows.
Third - the operational side. This requires transforming the operational business of immigration from a reactive, border-focussed activity to one that proactively seeks the migrants we want, keeps out those we don't, and works consistently to a high quality from end to end. We are calling this the Immigration Business Transformation.
The new Immigration Bill
This of course is an immigration law conference. I am pleased to confirm that the introduction of the new Immigration Bill to the House is only a matter of a few weeks away.
It is no secret that, like the 1987 Act, the new law will be largely a framework legislation. It will complement the Immigration Policy Framework and Immigration Business Transformation.
This integrated change programme ensures that immigration can not only serve New Zealand's interests today, but also respond to the challenges of tomorrow.
This legislative reform modernises the immigration system, making it more robust, transparent and accountable.
The bill will manage immigration, by balancing the rights of the individual and the national interest.
In managing immigration in the national interest, the Bill seeks to support -
the New Zealand workforce - through facilitating access to skills and labour and thereby contributing to output, productivity and economic transformation
the security of New Zealand - through ensuring the integrity of the immigration system
the settlement of migrants, refugees, and protected persons - through facilitating compliance with New Zealand's immigration-related international obligations
New Zealand families - through enabling government policy to support the resettlement of families with ties to New Zealand, and
national identity - through immigration's impact on New Zealand's demographic make-up.
Safeguards
In protecting the rights of individuals, the bill will seek to provide:
Greater simplicity
A new visa system, and
A single independent appeals tribunal.
More certainty
Guaranteed entry to New Zealand for permanent residents, and
Clarified obligations on persons arriving in New Zealand.
It is important that our immigration legislation continues to provide flexibility, so the framework legislation will be fleshed out by the relevant policies.
The bill will be prescriptive, however, where clear minimum standards are required. In particular, it will be prescriptive in the areas of international protection, deportation, appeals, compliance and enforcement, and detention.
It is proposed to create a new integrated international protection determination procedure. This will codify in domestic legislation New Zealand's existing immigration-related obligations under the Refugee Convention, the Convention Against Torture and the International Covenant on Civil and Political Rights.
Such a change will ensure that all claims for international protection are assessed together to provide for a more efficient and fair determination of these obligations.
It will also strengthen New Zealand's already highly regarded refugee determination system and reflect best practice standards internationally.
The proposed bill will create a streamlined deportation process that is more efficient but maintains a high standard of fairness. It will be more efficient because liability for deportation will largely be fact-generated rather than dependent on individual ministerial decisions.
It will bring together numerous provisions in the 1987 act regarding removal, revocation and deportation into a transparent framework that clearly sets out a non-citizen's rights and obligations.
It is also proposed to establish a robust, independent single-appeals system, based on a new Immigration and Protection Tribunal, which replaces the four existing appeals bodies. The tribunal chair will be a District Court judge.
Unlike the current system, it is proposed to allow the tribunal to consider all grounds for appeal together in a single decision. This will create greater efficiencies in the overall immigration system, while maintaining high standards of fairness.
It will end, for good, the present problem of people using multiple appeals to stay in New Zealand for years at significant cost to the taxpayer and then claim that they cannot leave because they and their kids are now "well-settled."
It is proposed that it will allow classified information to be used in immigration, refugee and protection decision-making. Importantly, it will contain enhanced natural justice safeguards where classified information is used, such as allowing appeals against decisions where classified information has been used without disclosing the information to the person for comment.
I expect to be able to bring to the House legislation with a clean and unqualified Bill of Rights vet.
It is proposed to introduce additional safeguards in cases where foreign nationals are detained under the law, including legal aid for detainees who meet criteria and tiered restrictions on detention after six and twelve 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.
Immigration's contribution to wider government objectives
Immigration needs to be seen in terms of its role in supporting the government's overall policy objectives of economic transformation, families young and old, and national identity.
Economic transformation
The Labour-led government's vision is to transform New Zealand's economy to a dynamic, knowledge-based economy and society, underpinned by the values of fairness, opportunity and security.
Immigration is one key lever in this transformation.
I have already mentioned the skill shortages we have due to an aging population and the global 'talent war'. Three weeks ago I announced fine tuning of our pivotal Skilled Migrant Category - officials will expand on these for you tomorrow.
Low unemployment rate means it is vital to raise the level of productivity per capita. Targeted immigration can help achieve this, such as the new Active Investor Migrant policy I announced at the same time. Officials will also expand on this tomorrow.
Smart, strategic innovation must also avoid key risks. We must always ensure capable Kiwis get jobs first. Immigration should never substitute foreign for domestic labour because it is cheaper. Our new Recognised Seasonal Employer policy, for example, has that rule built in from the outset.
And we must avoid fuelling inflation by ensuring migration occurs at sustainable net levels, and that in economic terms it contributes to expanding economic capacity more than aggregate demand.
Families young and old
We must ensure our social infrastructure and settlement strategy are up to the task of integrating new migrants into productive work and a harmonious society.
It is important for people to be able to maintain a close relationship with family members living overseas.
Entry for the partners and dependent children of approved migrants is already uncapped, but demand for other forms of family reunion is high. This is likely to remain given our focus on Economic Transformation.
With this in mind, and we will not reduce the proportion of migrants admitted under the skilled stream to allow more under family reunification, we are exploring short-term and temporary entry policies for families. Watch this space.
National Identity
New Zealand today is about celebrating diversity. In January, I launched the Auckland Regional Settlement Strategy and its associated Action Plan.
Officials are currently working with local government in the Wellington region to develop a Wellington Regional Settlement Strategy.
We also have a whole-of-government long-term action plan - the Settlement National Action Plan involving 17 central government agencies. This action plan and the revised New Zealand Settlement Strategy will be launched in July.
Conclusion
New Zealand must transform its economy to sustain the living standards and opportunities that we seek for our families.
Smart, strategic immigration will increasingly make a vital contribution to our economic transformation by focusing on the key drivers of productivity: not only skills, but also capital, technology, and international connections.
We need an immigration law, policies and an operational structure that will help to ensure we achieve all these things, along with the border security to protect against new international threats.
When the Immigration Bill is introduced to Parliament soon, many of you will no doubt be involved in making submissions to the select committee. I will look forward to seeing and hearing what you have to say about it.