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Immigration (COVID-19 Response) Amendment Bill (Consistent) (Sections 19, 21(1)) [2021] NZBORARp 11 (18 March 2021)
Last Updated: 13 April 2021
18 March 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Immigration (COVID-19
Response) Amendment Bill
Purpose
- We
have considered whether the Immigration (COVID-19 Response) Amendment Bill (the
Bill) is consistent with the rights and freedoms
affirmed in the New Zealand
Bill of Rights Act 1990 (the Bill of Rights Act).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 23562/2.2). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act, and engages
s 19 (freedom from
discrimination) and s 27(1) (the right to justice) in the same way as the
Immigration (COVID-19 Response) Amendment
Act 2020.
The Bill
- The
Bill amends the Immigration Act 2009 (the principal Act) to continue and, in one
respect, modify, emergency powers granted under
the Immigration (COVID-19
Response) Amendment Act 2020 (the previous amendment Act).
- The
previous amendment Act granted a number of time-limited powers to assist the
immigration system to respond appropriately and efficiently
to the COVID-19
pandemic, while ensuring the safety of New Zealanders and migrants who are
currently in New Zealand.
- Specifically,
the previous amendment Act enabled, for a period of 12 months after its
commencement:
- the
imposition, variation, or cancellation of conditions for classes of temporary
entry class visa holders (see ss 52 and 53 of the
principal Act);
- the
variation or cancellation of conditions for classes of resident visa class
holders (s 50);
- the
extension of the expiry dates of visas for classes of people (s
78A);
- the
granting of visas to individuals and classes of people in the absence of an
application (s 61A);
- the
waiver of any regulatory requirements for certain classes of application (s
57);
- the
waiver of the requirement to obtain a transit visa in an individual case or the
suspension of a transit visa waiver made by regulations
in any individual case
(s 86);
- the
suspension, by regulation and for a period not exceeding 3 months at a time, of
the ability of all or any class of persons to
apply for a particular type of
visa or to submit an expression of interest in obtaining an invitation to do so
(s 401A); and
- the
revocation, in accordance with certified immigration instructions, of the entry
permission of a person who has been deemed by
regulations to hold a visa and to
have been granted entry permission (s 113A).
- The
Bill extends the repeal date of the new powers by a further 2 years, to 16 May
2023, and allows for regulations suspending visa
applications or expressions of
interest to be renewed at 6-monthly rather than 3-monthly
intervals.
Consistency of the Bill with the Bill of Rights Act
Section 19 – Freedom from discrimination and section 27(1) – Right
to justice
- Our
advice on the consistency of the previous amendment Act with the Bill of Rights
Act found that some of the new powers engaged
s 19 (freedom from
discrimination) and s 27(1) (the right to justice).1
The right to freedom from discrimination was engaged where the Minister
was given discretion to classify individuals according to
their nationality in
the course of exercising some of the powers. The right to justice was engaged
where powers could be exercised
by special direction of the Minister, which
denied visa holders the right to be heard regarding these decisions before they
came
into effect.
- However,
our assessment was that any limitations on these rights were justified in terms
of s 5 of the Bill of Rights Act, given the
safeguards applicable to the use of
the powers and the extraordinary context of the COVID-19 pandemic. One important
safeguard was
the automatic repeal of the provisions granting the new powers 12
months after their commencement, which ensured that these measures
were properly
viewed as extraordinary measures necessitated by the COVID-19 situation.
- The
current Bill extends the repeal date of the provisions granting the new powers
by a further 2 years, and consequently engages
the same rights. Nevertheless, we
consider that the range of other safeguards that remain applicable to the use of
the powers ensure
that they remain rationally connected and proportionate to the
objective of enabling timely and appropriate solutions to immigration
issues
related to COVID-19. In particular, the principal Act requires the
decision-maker to be satisfied before exercising most of
the powers that their
use is reasonably necessary to manage the effects and deal with the consequences
of the outbreak of COVID-19
or measures taken to contain or mitigate the
outbreak of COVID-19.
- Additionally,
we do not consider that extending the renewal period for regulations suspending
visa applications or expressions of
interest renders the regulation-making power
disproportionate. Allowing the renewal period to be set at 6 months will reduce
the
1 See the Attorney-General’s advice
on the consistency of the Immigration (COVID-19 Response) Amendment Bill 2020 at
https://www.justice.govt.nz/assets/Documents/Publications/Immigration-COVID-19-Measures-Amendment-Bill.pdf
compliance burden and manage public expectations connected to the border
reopening. The Minister may choose at any time to revoke
the suspension when
conditions allow.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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