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Thank you for the opportunity to make this submission.
Due to limitations of time, I have chosen to focus solely on one aspect of this Bill — Section 26, which amends Section 280 of the Immigration Act. In my submission, this amendment carries significant implications for the rights and freedoms not only of migrants lawfully present in New Zealand, but also of New Zealand citizens and residents.
My concern is straightforward: Section 26 substantially expands the power of immigration officers to compel identification under threat of detention, in circumstances that create a real risk of disproportionate impact on migrant communities and New Zealand citizens working alongside them.
Under the current law, Section 280 of the Immigration Act gives immigration officers the power to require a person to identify themselves where the officer has good cause to suspect that the person is liable for deportation — for example, an overstayer. Where a person refuses to identify themselves, there is the potential for arrest and detention.
That power already exists.
What Section 26 of this Bill does is materially broaden that power.
The amendment expands the ability of immigration officers to compel identification beyond suspected overstayers to include situations where an officer has good cause to suspect that a person has breached, is breaching, or may breach the conditions of their visa.
Public discussion of this amendment has frequently framed the issue as one concerning overstayers. Indeed, on multiple occasions, the Minister has justified these powers by reference to concerns about rising numbers of overstayers.
However, overstayers are not the issue addressed by this amendment — because immigration officers already possess powers in relation to suspected overstayers.
The practical effect of Section 26 is to create a new category of people who may be compelled to identify themselves: individuals lawfully in New Zealand, holding valid visas, but suspected of breaching visa conditions.
As a practising immigration lawyer, I can realistically envisage this arising primarily in one setting: workplaces.
For example, individuals working in a role, region, or for an employer outside the conditions of an Accredited Employer Work Visa, or persons undertaking work while holding a visa that does not authorise employment.
Accordingly, the most likely setting in which this power will be exercised is not at the border, nor in relation to overstayers, but in workplaces and during workplace enforcement activity.
Although immigration officers do not yet possess the full powers proposed under Section 26, it is important to consider how immigration compliance activity already operates in practice.
Two weeks ago, multiple clients in the Bay of Plenty region described to me an incident that, in my view, illustrates how these expanded powers are likely to be exercised.
While travelling to work at a kiwifruit orchard early in the morning, the vehicle in which they were travelling was stopped at a police checkpoint. According to those clients, police officers initially checked the driver’s licence and related vehicle matters before immigration officers became involved and sought identifying details from the vehicle’s occupants to determine whether they had authority to undertake work.
The occupants of the vehicle included a New Zealand citizen, a New Zealand resident, and two individuals holding Accredited Employer Work Visas.
Those present were questioned for approximately half an hour regarding the nature of the work they were undertaking, the identity of their employer, and why kiwifruit harvesting equipment was present in the vehicle. This occurred despite the visa holders reportedly being authorised for fencing work rather than orchard labour.
I raise this example not to criticise the conduct of individual officers, but because it provides a practical illustration of the type of situation in which expanded powers under Section 26 are likely to be exercised.
What is notable in this example is that individuals were subjected to questioning because of a combination of circumstances: where they were located, the time of day, the nature of the vehicle, the type of industry involved, and, I submit, likely perceptions regarding migrant status.
A New Zealand citizen and a resident were also stopped, questioned, and delayed while travelling to work.
This is significant because if Section 26 is intended to facilitate greater workplace compliance activity, then it follows that New Zealand citizens and residents working in migrant-dominated industries are highly likely to be affected by these powers as well.
It is also necessary to be realistic about where these powers are likely to be used.
Immigration officers are unlikely to exercise these powers randomly across all sectors of the economy. Rather, enforcement activity will naturally be concentrated in industries and regions where temporary migrant labour is common.
Examples may include horticulture, construction, hospitality, manufacturing, or food production — workplaces where employers frequently engage temporary visa holders.
The practical consequence of this is unavoidable: the exercise of these powers is likely to fall disproportionately upon workplaces associated with particular migrant communities.
That means New Zealand citizens and residents who work alongside migrant communities — whether in horticulture, construction, factories, or other industries — may increasingly find themselves subject to demands for identification and questioning simply because of the workplace in which they happen to be employed.
In practical terms, this raises an important question for the Committee:
To what extent should New Zealand citizens going about their ordinary lawful employment be compelled to identify themselves to immigration officers, under threat of detention, where there is no suspicion that they have committed any criminal offence?
The Bill is, of course, neutral on its face. It does not explicitly distinguish between ethnicities or communities.
However, laws do not operate only in theory — they operate in practice.
And in practice, immigration compliance activity is almost certainly going to be concentrated in workplaces and industries where temporary migrant labour is common. That reality means these powers are unlikely to be exercised evenly across society.
To illustrate the concern, let us imagine a construction site in North Auckland employing twenty workers, many of whom appear to be of Chinese origin.
An immigration officer may have good cause to suspect that one or more workers at that site are undertaking employment inconsistent with their visa conditions. Under Section 26, officers would potentially have the power to require individuals on that site to identify themselves in order to determine who is lawfully entitled to undertake the work being performed.
But among those workers may also be New Zealand citizens or residents of Chinese origin who are entirely lawfully employed.
Some may not be carrying identification.
Others may object in principle to being required to identify themselves while simply going about their lawful employment, particularly where they reasonably believe that, absent suspicion of criminal offending, they should not be compelled to do so.
This raises a difficult but important question.
Should New Zealand citizens be required to provide identification to immigration officers, under threat of detention, solely because they happen to work in an industry associated with migrant labour, or because they happen to resemble the group of people against whom immigration compliance activity is commonly directed?
Although the legislation itself is formally colour-blind, the practical operation of the power may not be.
Citizens and residents of particular ethnic backgrounds who work in migrant-dominated sectors may be significantly more likely to be stopped, questioned, delayed in their work, and required to provide identification than other New Zealanders undertaking ordinary lawful employment.
That concern should not be dismissed lightly.
One response may be that this presents no difficulty so long as individuals simply comply.
However, in a free and democratic society, the mere existence of compliance cannot itself justify coercive state power.
The question is not whether most people will comply.
The question is whether the coercive power itself — including the possibility of detention for refusing to identify oneself — is justified in the circumstances in which it is likely to be exercised.
This brings us directly to the New Zealand Bill of Rights Act.
Section 5 of the New Zealand Bill of Rights Act 1990 recognises that rights and freedoms may be subject to reasonable limits — but only where those limits are demonstrably justified in a free and democratic society.
That raises an obvious question for this Committee:
What evidence has been presented to justify the risk that New Zealand citizens and lawful residents may be compelled to identify themselves, stopped from their ordinary employment, or detained for refusal to comply — despite no allegation of criminal offending?
The rights potentially engaged here include the right to freedom from arbitrary detention, freedom of movement, and broader civil liberties associated with going about one’s lawful affairs free from unnecessary state interference.
Where coercive powers risk affecting citizens who are not suspected of wrongdoing, the burden of justification must be particularly high.
In a free and democratic society, coercive state powers should be exercised only where they are necessary, proportionate, and clearly justified by the harm they seek to prevent.
That is particularly important where those powers carry the potential to affect New Zealand citizens and lawful residents who are not suspected of criminal offending.
In my submission, an important question remains unanswered:
Immigration officers already possess substantial powers to investigate suspected breaches of immigration law in workplaces.
For example, where concerns exist regarding unlawful employment or breaches of visa conditions, immigration officers already have mechanisms available to obtain and examine employment information.
Employers are required to retain visa and passport information for migrant workers, and labour inspectors — including immigration officials acting within those frameworks — already have powers to obtain employment records, wage records, and related documentation for compliance purposes.
Where an immigration officer has reasonable grounds to suspect that an employer is engaging individuals unlawfully, powers already exist to investigate those concerns through employer records and compliance activity.
In practical terms, if there are concerns that individuals at a workplace do not hold lawful authority to undertake the work being performed, there are already means available to verify who is employed, in what role, and under what visa conditions.
Against that background, the Committee must ask:
Because if the answer is unclear, then the proportionality of the amendment becomes difficult to justify.
The greater the intrusion into individual liberty, the greater the burden on the State to explain why that intrusion is necessary.
And here, the intrusion is potentially significant.
It includes the ability of immigration officers to compel identification from people lawfully present in New Zealand, including potentially New Zealand citizens and residents, while undertaking ordinary lawful work, with refusal carrying the prospect of detention.
I wish to be clear: I am not suggesting that immigration compliance should not occur, nor that immigration officers should be unable to investigate genuine breaches of immigration law.
Rather, my concern is whether Section 26 strikes the appropriate balance between immigration enforcement and civil liberty.
In my submission, the Committee should carefully consider whether the breadth of this power is justified, whether sufficient safeguards exist to prevent disproportionate impact on particular communities, and whether the risks posed to ordinary New Zealand citizens and lawful residents are proportionate to the problem this amendment seeks to address.
If those questions cannot be convincingly answered, then I respectfully submit that Section 26 should either be reconsidered, narrowed, or removed.
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