Twyford Phil; Pugh Maureen; Penk ChrisHon PHIL TWYFORD (Labour—Te Atatū): I won't repeat the content of the four substantive amendments that are in the Minister of Immigration's Amendment Paper other than to say that I think they are good and necessary and substantially improve the bill. They are safeguards that were developed as a result of the select committee process and a Ministry of Business Innovation and Employment paper that was taken to Cabinet under the last Government and I think it's a very constructive addition to this legislative process. Labour's support for the passage of this bill was conditional on all four of those amendments being included.I do want to comment on my three amendments that I've tabled for this debate. They are amendments that were developed in conversation with the consortium of former refugee and human rights advocacy organisations that have been corresponding with the Minister that the Minister in the chair alluded to. Let me go through them one by one.The first after clause 7 inserts a section 311A in the principal Act and basically sets out the principle that families are not to be separated in the process of the detention of the mass arrival group. The Minister in the chair has set out I think the Government's position on this but I would in this debate ask him to keep an open mind and to consider this amendment. I understand that the officials' advice has been that there are already commitments that Immigration New Zealand is bound by including its own policy and operating procedures including the Immigration Act and the Operational Manual which contains a number of protections for children. As well as those there are protections for children which would apply including the New Zealand Bill of Rights Act the Children's Act 2014 the Ombudsmen Act and the Oranga Tamariki Act as well as the United Nations Convention on the Rights of the Child.My argument is that's not enough in a situation where we are detaining asylum seekers. The internal operating procedures of Immigration New Zealand and our obligations under international law I think are demonstrably not enough if we want to ensure that children are not separated from their families in the course of detention post a mass arrival. The example that I would ask the committee to consider including the Minister in the chair is that for a very long time Immigration New Zealand—in decisions made by quite junior officials in the department—was locking up asylum seekers in prison demonstrably inconsistent with New Zealand's obligations under international law. It was happening for a very long time and it took a campaign by the human rights sector by Amnesty International and it took an investigation by a QC to tell the Minister at the time that this was completely inconsistent with New Zealand's obligations under international law.So I put it to you Minister that if we're serious about trying to ensure that this legislation does the right thing for New Zealand's reputation for the rights and the dignity and the wellbeing of asylum seekers in the case of a mass arrival then the drafting elegance that officials are keen to preserve simply doesn't weigh up when we're considering the wellbeing and the rights of asylum seekers. So I would ask the Minister to please respond to that.My second amendment inserts in section 316 of the principal Act the provision that the Government will engage an independent third-party organisation to monitor the treatment and detention conditions of persons detained in custody after a mass arrival. There are two organisations that immediately spring to mind that would be expertly equipped to do this. One is the International Committee of the Red Cross (ICRC) and its local representative the New Zealand Red Cross. The ICRC routinely plays this role internationally all around the world and has a great deal of credibility and recognised integrity in performing this role of inspecting the treatment and the conditions of detention. Also under our own legislation the Office of the Ombudsman has a statutory role to do that prison visiting.Now the fact that the Ombudsman has that role under existing legislation the fact that the Human Rights Commission has a role of coordinating this kind of activity does not mean that it has to happen. Those provisions don't require the Government of the day to ensure that someone some independent body is visiting and independently monitoring the conditions and treatment of detainees. So I again say to the Minister if you want to give confidence to the refugee and human rights community in New Zealand if you want to create what I would describe as an internationally credible regime here then we need to go the extra mile. The fact that there are already institutions in place that could do this doesn't mean that it will happen it doesn't mean that it must happen and that's the critical difference.The third amendment that I've put on the Table this evening places time limits on detention. It would mean that an immigration officer may apply to a judge for a warrant of commitment authorising the detention of members of a mass arrival group for periods of time no longer than seven days for groups of 30 to 50 people 14 days for groups of 50 to 100 20 days for groups of 100 to 200 and 28 days for groups of 200 people or more. It draws on exactly the same logic that underpins this bill—that the sheer logistics and admin involved in processing a group of mass arrivals and ensuring that their legal rights to representation are able to be met is greater the bigger the group. The logic's really clear.So this amendment basically then would put some hard limits on the amount of time that people can be detained while a warrant of commitment is being applied for. The advice I think of officials—and the Minister referenced this—is that already in the bill we're considering tonight and the Minister's amendment a judge is required to only hold people and allow them to be detained while the warrant of commitment has been considered for the minimum amount of time necessary. Yep that's very important and that's a great principle but actually that leaves it up to the discretion of the judge. What this amendment would do is create some hard limits based on the number of people in the mass arrival group. Again I say to the Minister in the chair this would give confidence to people and actually remove some of the latitude that could see people being held in custody in detention for longer than is strictly necessary. It would be an example of Government holding itself accountable to the principle that it professes is at the heart of this bill.So that's my contribution. I took from the Minister in the chair's comments earlier that the Government has decided not to support these three amendments. I appreciate the dialogue that we've had so far on this and I would urge him and his senior Minister who is in London perhaps to seriously consider supporting these amendments because I think they would go a long way to giving people confidence in the regime that's being established.CHAIRPERSON (Maureen Pugh): I'll just remind the member that we don't refer to the absence of members in the House.Hon CHRIS PENK (Associate Minister of Immigration): Thank you Madam Chair. I thank the member for the dialogue. I think it's a helpful exercise notwithstanding that I had perhaps unfairly anticipated his arguments otherwise known as stealing the thunder of another contributor to the debate. But I was acknowledging those points made in the letter that had gone back and forth. And obviously those same points made by some members of civil society have been also taken on board by the member and I thank him for that.I think nevertheless in relation to the voting intentions of the Government on those proposed amendments it is still a useful exercise to have this debate and discussion not only in the general sense of democratic engagement and transparency and accountability but of course for the particular reason that when there is uncertainty in the law it may be that legal practitioners up to and including the judge herself or himself will look at the context of the law having been passed to judge the intention of the Parliament and also the Government in passing that law as an aid to interpretation. So I'm grateful for the opportunity to have this dialogue because it enables us to put clearly on the record the Government's intention—for example that families should not be separated without good reason. So in the member the Hon Phil Twyford putting forward an amendment along those lines even though that is unlikely to succeed I would say in terms of the voting intentions of the committee as I understand them to be at least on the Government side; nevertheless it's helpful to spell out the fact that we don't expect and we do not want families to be separated unnecessarily unjustifiably. I do make that distinction and place that slight caveat because of course it might be that an adult person represents a risk to national security. Notwithstanding that they may have other family members as part of a mass arrival group or notwithstanding that they may claim to have members of a mass arrival group and that be difficult or impossible to verify for obvious reasons—people arrive by sea. So I do want to place on the record of course that it may be the case that family members may need to be separated from each other for that purpose or indeed for the protection of the children involved—child or children. One doesn't need to be hugely cynical about human nature to conceive of a situation where an adult person might find it convenient for their own purposes to claim that a child is attached to them by way of family ties in a way that may or may not be verifiable. In terms of the commitments that are already made in relation to the interest of the child and also family units being preserved so far as possible in the circumstances of course Mr Twyford's right to reference international law. Indeed I was right to reference it in the first place but he's right to reference my referencing. But also domestic law and of course spelling out these things in committee of the whole House stage I think in itself adds some weight to the fact that we recognise we underline and we emphasise these obligations. We do not wish our courts to be ignorant of them or deliberately to disregard them if there were any suggestion whatsoever that the words of the statute might give rise to an intention that these legal norms be disregarded. Moving on to that second point I'll just respond to the three points that relate to the three different amendments made by Mr Twyford in the same order. So second moving on to the point about monitoring the condition of those who are detained. Of course he is right to reference the credibility of the International Committee of the Red Cross—New Zealand version thereof. I'm sure all members of the committee are grateful for the humanitarian work of this wonderful organisation over many decades including on New Zealand soil. However while he is right to reference that credibility and the work that is routinely done with people in a vulnerable situation it is very likely for those reasons that Red Cross members would be involved in supervising in looking after in caring for and in generally being involved with the conditions associated with a mass arrival group. To be asking them to be in a position of then also be monitoring and providing accountability places them in an obvious awkward situation of conflict of interest and I don't think that's necessarily appropriate even though I wouldn't suggest for a moment that there would be any abuse of that position of trust.If I may continue Madam Chair then I would point out in relation to the Ombudsman—and I—CHAIRPERSON (Maureen Pugh): Your time has expired.Hon CHRIS PENK: And if I can continue Madam Chair.CHAIRPERSON (Maureen Pugh): I call the Hon Chris Penk.Hon CHRIS PENK: —then I will gladly do so and gratefully do so to point out in relation to the position of the Ombudsman again outlining this at committee of the whole House stage to put on the record that of course that role we would anticipate and hope would be exercised by the person exercising that office of Parliament—the Ombudsman. I emphasise the office of Parliament role as distinct from the Government of the day because Mr Twyford points out and he's right as far as this goes that the Government isn't requiring in this legislation that the Ombudsman take this action but of course the point about the Ombudsman's role is that it is separate from Government. If that person takes their duties seriously and our ombudsmen—ombudspeople—always do then they will be doing that without Government needing to direct them to do it at a certain time in a certain way or indeed at all. So again I think it's tolerably clear from our constitutional arrangements if nothing else that it would be expected that the Ombudsman would provide that monitoring role.The third and final point to be made relates to those proposed amendments by Mr Twyford. That principle of proportionality he's right again to point out that the bill already contemplates that there will be more time needed for more processing of more members of a mass arrival group and less time correspondingly for fewer. He points out therefore I presume that it can do no harm to have a very specific mechanism and be quite prescriptive. But we would say of course on the flip side that before it's already in there as a principle and set out quite clearly in the law an obligation that the judge would need to take quite seriously to take no more time than is needed. I think if we were to guess that a group of up to 50 persons could only be associated with a seven-day time frame as opposed to eight days or nine days and so forth then I think that would be overly prescriptive of us. Unnecessarily so because as I say that logic is already in the law and we're seeking simply to strike a balance between the latitude to use his term or the flexibility that we probably all agree is needed at a level versus the certainty. We think that that balance is struck right by having that general principle that the least restrictive attention for the least amount of time must be observed in the way that those time frames are calculated and extended as need be up to the 28-day mark.