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People smuggling legislation 2nd reading - Goff

Hon Phil Goff

Minister of Foreign Affairs and Trade

Speech Notes

30 May 2002

Goff second reading speech on people smuggling legislation

I move that the Transnational Organised Crime Bill be now read a second time.

This bill implements the UN Convention against Transnational Organised Crime and its two protocols on the Smuggling of Migrants and Trafficking in Persons.

In an age when crime is globalising, New Zealand can no longer rely on its geographic isolation for protection.

The movement of people for profit and exploitation has become increasingly a big income earner for organised crime, estimated at over $ US10 billion a year.

This bill creates two new offences to deal with people smuggling and trafficking. Both have maximum penalties of 20 years imprisonment and/or a $500,000 fine, set at that level as a deterrent. We need to ensure New Zealand is not seen as a “soft” target.

There have been persistent rumours of boats with the capacity of up to 300 people being prepared in Indonesia for departure to New Zealand.

The length of such a journey and the risks of the high seas may be daunting but the people smugglers are interested only in profit not the safety or well-being of their cargoes. In the interests of the people being smuggled and in the interests of New Zealand maintaining control of its borders maximum effort is needed to stop these departures.

This Bill supplements steps the New Zealand Government is already taking on the ground in Indonesia and in conjunction with Australia and regional countries to make it increasingly harder for the people smugglers and traffickers to operate.

The Bill does not affect New Zealand’s obligations under the Refugee Convention. If people claim refugee status on arrival they cannot be removed until a determination on their status is made.

There was concern expressed at the Select Committee that the tough measures against people smuggling might inadvertently affect airlines on which people are smuggled, notwithstanding that reasonable precautions may have been taken.

An airline that makes checks in accordance with standard international procedures and is satisfied that particular passengers comply would not be covered. The accused must either have knowledge of, or be reckless as to, the status of the proposed migrants. “Recklessness’ involves deliberately running a known risk when it is unreasonable in the circumstances to do so.

A further safeguard is the requirement for the consent of the Attorney-General before any prosecution can take place.

The bill also extends the existing offence of participation in a criminal gang to cover international criminal groups.

The Committee has amended this offence to ensure that it implements fully the Convention obligations.

It took account of the concerns in submissions about the possible impact on the civil liberties of New Zealanders, in particular, freedom of association. “Participation’ and “association’ would not, however, be treated as synonymous.

Requiring the Attorney-General’s consent to prosecutions involving extraterritorial jurisdiction also provides protection.

The proposed amendments to the Immigration Act attracted a number of submissions.

Clause 20 make it an offence for employers to employ a person not lawfully entitled to work in New Zealand without reasonable excuse. There was concern that this offence placed an unrealistic and costly compliance burden on employers, particularly those employing casual labour.

Employers must accept that they share responsibility and must play their role in the campaign to stop illegal migration.

The Committee has however amended the offence so that the basic requirement can be met if the employer obtains a statement from the employee that he or she is entitled to work in New Zealand. This would be on the tax code declaration form that every new employee, or employees seeking to change their tax code, must fill out.

The commencement of clause 20 is delayed for up to a year to allow time for employer and employee education on the new requirements.

The new offence in clause 21 targets employers who run sweatshops or engage in similar unacceptable workplace practices.

Cases of such employers have been exposed in the media and this Bill provides for strong action to be taken against them.

Clause 21 would catch an employer who knowingly employs unlawful migrants and commits calculated and consistent breaches of the Holidays Act, the Minimum Wage Act or the Wages Protection Act. To guide the court in determining whether a breach is “serious’, the provision now includes a list of factors.

At present if a person is refused a permit at the border the only options, pending their departure from New Zealand, are detention or release into the community with a permit. Clauses 24 to 26 will provide a further option, allowing the person to be released on conditions. This balances the need to manage risks associated with people claiming refugee status at the border and those people’s rights under the Refugee Convention and the Bill of Rights Act.

Clause 27 relates to the disclosure of information to overseas agencies. The Immigration Service may do this under an agreement or as a “one-off’ event. The Committee has included some additional criteria to ensure there are sufficient safeguards so that information provided about New Zealanders will not be misused.

The amendments made to the offence provisions ensure that the hierarchy of offences relating to different people smuggling and trafficking activities is consistent and coherent.

Four additional amendments are made to the Immigration Act.

- The Police can arrest a person who arrives in New Zealand other than at a “customs place” and who has no intention of reporting to an immigration officer forthwith or who has not reported forthwith as required. The person is then brought before an immigration officer who determines whether to grant a permit or to detain the person pending departure.

- The 72-hour period within which a Police officer may detain a person who has entered unlawfully starts from the first interaction with an immigration officer, rather than on arrival. This ensures those who evade border control do not gain a benefit from such conduct and can be detained and removed under Part 6 of the Act.

- The existing power to question a person about their immigration status is extended so it applies equally to those who enter lawfully and overstay and those evade immigration border processing entirely.

„P The Police and Customs powers of search and seizure are extended so they can be used inside the contiguous zone, which extends 24 nautical miles from the New Zealand coast.

Under clause 57 a court that is sentencing a person for an offence against the Passports Act can also cancel the person’s New Zealand passport and order that no new passport be issued for up to 10 years.

This power helps to ensure the integrity and security of New Zealand travel documents. It does not deprive a New Zealand citizen of freedom of movement. The Minister could issue an emergency travel document to a person who is subject to an order. This document would not have a value on the black market as it would be journey-specific.

This bill demonstrates New Zealand’s determination to combat transnational organised crime in all its manifestations.

The heavy penalties for the new offences of people smuggling and trafficking will send a strong signal that New Zealand will not tolerate the activities of criminal groups who seek to profit from human misery.

I commend this bill to the House.

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