Information-sharing

Approximately 65 percent of submitters who responded to this issue indicated support for enabling immigration status to be disclosed to third parties in order to determine eligibility for publicly-funded services. These submitters considered disclosure to be necessary to ensure that only those who are eligible for publicly-funded services can access them. The main concerns with the proposal were around ensuring the privacy of individual persons and providing adequate safeguards and restrictions around what information may be disclosed and the use of that information. Submitters also expressed concerns that the proposal could disadvantage the children of those unlawfully in the country as their parents may be reluctant to approach service providers out of fear of potential immigration consequences.

Sponsors

Over 70 percent of submitters commenting on sponsor obligations indicated support for establishing a stronger legislative basis for sponsorship, and approximately 60 percent supported the use of specific immigration consequences for sponsors who fail to meet their obligations. There were mixed views about the both the detail of the sponsorship provisions and the consequences that should be applied. Many submitters opposed the use of bonds in sponsorship and argued that it would be a significant burden to both families and organisations and may act as a deterrent to sponsorship.

Employers

Approximately 65 percent of organisations and 80 percent of individual submitters responding to this section indicated support for providing a stronger legislative basis for employer responsibilities. However, there were some concerns about enabling additional responsibilities to be imposed through government immigration policy and some submitters felt that the proposed legislative reminder of employment obligations is unnecessary.

Most comment was made on the possibility of employers being required to check that a prospective employee is entitled to work for that employer. While around two thirds of all submitters supported this option, there was strong opposition from business and employer groups, and some migrant groups. The main concerns were the additional compliance costs for employers, practical difficulties in verifying immigration status and the possibility that it would deter employers from employing migrants and/or lead to discrimination. Those who opposed the option considered that the "reasonable excuse" is indeed reasonable. Many submitters commented that if this option were to be enacted, effective tools would be required to enable employers to easily and quickly check immigration status. Education of employers was another common suggestion for helping to ensure that employers meet their obligations.

Education providers

There was strong support for including reference to the Ministry of Education's Code of Practice for Pastoral Care of International Students in immigration legislation: over 80 percent of submitters who responded to this question indicated their agreement. Submitters commented on the need to protect both international students and New Zealand's reputation. There was also reasonably high support for giving immigration officers the power to require information from education providers and for the introduction of a flexible penalties regime, with approximately 75 percent support for both proposals. In relation to the power to require information, concerns were expressed about the potential compliance costs for education providers and the need to ensure the privacy of individual students. Compliance costs were also raised as a concern in relation to the possible use of an instant fines regime, and a number of submitters argued that flexibility is required to allow for individual circumstances and that education providers should be provided with an opportunity to respond to any issues of non-compliance.

Carriers

Approximately 70 percent of submitters who addressed this issue supported the proposed minor amendments to carrier obligations. However, the airline representatives who responded argued that it is no longer appropriate to require carriers to check evidence of onward travel or sufficient funds given that people may not carry physical evidence of these things. They also sought clarification of the other proposed amendments. There was less support for an instant fines regime, with only around 45 percent of submitters indicating agreement to this option. The airline representatives noted that the level of non-compliance is already very low and argued that an instant fines regime would simply increase compliance costs without addressing the underlying cause of non-compliance. Human rights groups and refugee and migrant groups expressed concern that an instant fines regime would adversely affect asylum seekers. They noted the United Nations High Commissioner for Refugees' view that airlines should not be penalised for transporting people seeking protection from persecution.

Summary of proposal

The discussion paper proposes that the legislation give authority for the Department of Labour to disclose information on immigration status where it is needed to:

• assess eligibility for publicly-funded services
• assess liability to repay the costs of a public service already used, and
• make an assessment under any other Act that requires an assessment of immigration status.

The discussion document indicates that safeguards would be put in place limiting the information that can be provided, ensuring access to information is restricted to those who need to know, informing people that information about them may be disclosed in certain circumstances and providing for them to know who has been making inquiries about their immigration status. The Department of Labour would not be able to use a request for information on immigration status as the basis for its own enquiries (for example, attempting to locate a person unlawfully in New Zealand through the organisation making the request for information).

Submitter response

Ninety five submitters responded to this question: 54 submitters responded on behalf of organisations and 41 responded as private individuals. Organisations that made submissions on this proposal included immigration consultants, ethnic councils, migrant groups, community law centres, other community groups, the New Zealand Law Society, the Human Rights Commission, the Families Commission, the Children's Commissioner, one political party and representatives of local government, businesses, business representatives, and the airline and education industries.

Approximately 65 percent of submitters indicated support for the proposal, approximately 25 percent opposed or expressed concerns about the proposal and the remainder either were unsure or did not indicate a clear view either way.

Comments of submitters who support the proposal

Many of the submitters who support the proposal expressed the view that disclosing immigration status is necessary to ensure that health, welfare and other publicly-funded services are only provided to those who are eligible for these services. One submitter commented on the effect that those who illegally access services have on other visitors who do "play by the rules".

Information sharing between government agencies would assist in eliminating those very very rare cases where international students have been able to illegally gain access to public social services, health and education. These very rare cases have on occasion cast a shadow over the entire international student population - a shadow that is not only grossly inaccurate, but is unfair. (Education New Zealand)

Some submitters expressed qualified support for the proposal, noting that:

• the safeguards noted in the discussion paper need to be included in the legislation
• privacy concerns need to be addressed and applicants adequately informed that information may be disclosed, and/or
• the permission of the individual should be sought.

Some submitters considered that disclosure of immigration status should be a last resort measure and that providers should be required to first seek information from the individual.

A few submitters expressed the view that the legislation should provide for information-sharing for the purpose of identifying people whom New Zealand does not want in the country. One submitter suggested greater information-sharing with other governments to enable the Advanced Passenger Processing system to stop such people before they come to New Zealand. Another submitter advocated data-matching with government agencies and service providers to identify those already here.

Comments of those who oppose or expressed concerns about the proposal

Many of those who oppose the proposal raised concerns about breaching the right to individual privacy. Some submitters expressed the view that the proposal is contrary to the Privacy Act and others commented that the Privacy Act should be adequate to deal with these situations. One submitter noted that a fundamental privacy principle is that personal information should be acquired from the individual first, and expressed concern that the discussion paper had not addressed this. Others considered that the discussion paper had not provided sufficient justification for the proposal, such as providing information on the extent to which people are illegally accessing publicly-funded services.

The discussion paper has not provided any specific evidence about the level at which people ineligible for these services are illegally accessing them, and as such, breaking down the individual's right to privacy as to their immigration status has not been adequately justified. (Individual submitter)

One submitter commented that the proposed power is too far-reaching, and suggested limiting it by: restricting disclosure of immigration status to answering a specific inquiry from a provider of a publicly-funded service, and only disclosing information in cases where the provider is a government department responsible to a Minister of the Crown.

Submitters also raised concerns about the possible effect of the proposal on particular groups of people. Particular concern was expressed about the potential for children of people unlawfully in New Zealand to be disadvantaged because their parents may avoid seeking medical treatment or enrolling their children in education out of fear of information being passed to Immigration New Zealand. Trafficked workers were identified as another vulnerable group.

If the Department was able to share information with other agencies the privacy implications would need to be strictly monitored. In some cases people might be denied access to certain services, or be reluctant to access them, out of fear of compromising their immigration status. This could impact on children's right to education and health care. (Human Rights Commission)

Some submitters commented that the proposal could lead to information being requested or used in a discriminatory way. One submitter noted that there is sometimes confusion about who is eligible for publicly-funded services and gave the examples of New Zealand-born children, and refugees who have not yet had their residence status confirmed.

Summary of proposals

The discussion paper proposes making explicit legislative provision for sponsorship of both temporary and residence applicants. Under this proposal, the legislation would set out the responsibilities of sponsors and the minimum criteria for eligibility as a sponsor. Detailed sponsorship requirements and eligibility criteria would be set out in government immigration policy.

The discussion paper indicates that the types of responsibilities covered by the legislation are likely to include matters already covered by the 1987 Act such as accommodation, maintenance and removal, and could also include the costs of publicly-funded healthcare. Minimum eligibility criteria for individuals would include a requirement to be a New Zealand citizen or resident. The legislation could also provide for organisations and businesses to act as a sponsor.

The discussion paper proposes legislative measures for strengthening the incentives for sponsors to comply with their obligations, including:

• increased immigration sanctions (for example a prohibition on sponsoring other people while they have any outstanding sponsor obligation debts), and/or
• more explicitly providing for sponsors to be required to pay a bond, which would be forfeited if they fail to meet their responsibilities.

Submitter response

Ninety two submitters responded to one or both of these questions. This included 51 submitters responding on behalf of organisations and 41 private individuals. Organisations that made submissions on this proposal included immigration consultants, employer and business representatives, unions, law societies, community law centres, migrant and refugee groups, ethnic councils, other community groups, businesses, the Families Commission and one government department.

Comments on question one

There was a high level of support for establishing a stronger legislative basis for sponsorship, with over 70 percent of submitters indicating support for this proposal. Some submitters commented that sponsors are not always aware of all their responsibilities.

Some submitters considered that legislative provisions should mirror the existing provision for sponsorship of temporary visitors to New Zealand. Others expressed the view that a distinction needs to be maintained between sponsorship of temporary visitors and sponsorship of permanent residents. These submitters argued that it would be inappropriate to require sponsors of residence applicants to meet the costs of publicly-funded healthcare, given that applicants have met health requirements as part of their residence application.

RMS believes that clear distinctions must be made in legislation that recognise justifiable differences in appropriate responsibilities for sponsors of "temporary" and "permanent" entrants. RMS is strongly opposed to any suggestion that the costs of publicly-funded healthcare be added to the list of sponsorship obligations for permanent residents. (RMS Refugee Resettlement)

Some submitters commented that a distinction should also be made between sponsorship by New Zealand residents who are former refugees and other sponsors. They noted that refugees often come to New Zealand without assets or savings and are frequently separated from key family members. These submitters suggested that exceptions to sponsorship requirements may need to be made to enable refugees to benefit from family reunification. One submitter commented that any exemptions should be set out in legislation.

A number of submitters expressed support for enabling organisations to act as sponsors. However, some submitters expressed concern about the proposal in the case of employers. These submitters considered that placing sponsorship obligations on employers could give employers greater leverage over migrant workers and lead to a situation of indenture.

Another submitter commented that the obligations and penalties for employers acting as sponsors should be clearly set out in the legislation. The submitter expressed concern that the use of sponsorship and bonds for employers could become the default position, and suggested that they only be used when a candidate is not otherwise eligible for a permit.

Some submitters expressed support for the proposed objective of sponsorship. One submitter, however, considered that reducing the financial risk to the government should not be included in any objective statement.

Some submitters suggested the use of health insurance as an alternative to including the costs of publicly-funded health services among sponsor obligations. One submitter commented that health costs are generally not affordable and so remain unpaid, which makes the sponsorship obligation meaningless.

A few submitters commented on sponsorship in the case of relationships in the nature of marriage. One submitter considered that the New Zealand sponsor should be able to withdraw their sponsorship at any time. Another expressed the view that sponsors should remain financially responsible for the person they have sponsored if the person leaves them because of domestic violence. This submitter argued that responsibility should continue up until the point where the sponsored person obtains residence in New Zealand to ensure that people are not penalised for escaping violence.

Some submitters commented on the use of sponsorship and expressed concern that only visitors from certain countries and those with limited financial resources are required to have a sponsor to visit New Zealand.

Some submitters made comments on the important role played by sponsors. One submitter expressed the view that sponsored applications should be given priority. Another commented that care needs to be taken that the Government does not abdicate from its ultimate decision-making role by placing too heavy a burden on sponsors. One submitter expressed the view that sponsorship should not preclude the state from also providing support for new migrants.

Allowing employers and businesses to sponsor is a realistic and effective way to help bring skilled migrants into the country. Sponsorship should be recognized as a key factor in applications, and applications with sponsorship must be given priority in processing. Sponsorship provides applicants with guaranteed support in New Zealand, and, importantly, support once they reach New Zealand. (Global Immigration Group)

Approximately 10 percent of submitters indicated that they did not see the need for legislative change in this area.

Comments on question two

Many submitters considered that sponsors should be held accountable for failing to meet their responsibilities. However, there were mixed views about what the consequences should be. Some submitters considered that further work is required to determine effective and suitable consequences. Others were of the view that sponsors who fail to meet their obligations should not be able to sponsor a person again and should be held accountable for any expenses incurred. Approximately 60 percent of submitters gave clear support to the proposal.

The National Collective of Independent Women's Refuges (NCIWR) commented specifically on cases of violence by sponsors.

NCIWR believe that sponsors who are violent to the women they sponsor should not be eligible to sponsor another woman to enter New Zealand. We are aware of situations where the same man has serially sponsored several women, all of whom have sought support from Refuge when they have been trying to escape violence. Removing the right of these men to continue sponsoring is consistent with the treatment of domestic violence as a serious crime. (National Collective of Independent Women's Refuges)

One submitter expressed the view that sponsors should be provided with the opportunity to explain the reasons for failure to meet their responsibilities, with the consequences being related to the failure. The submitter commented that "failure due to intent or negligence is one thing but failure due to unforeseen circumstances is another."^[2] Another commented that the sponsored person should not be penalised for the failure of sponsors to honour their commitments.

A lot of comment was made on the possible use of bonds. Some submitters supported the use of bonds in sponsorship, with a number of submitters suggesting that interest be paid on bonds. However, many submitters opposed the use of bonds in sponsorship, noting that a bond would be a significant burden on families and may act as a barrier to sponsorship, particularly for refugees. One submitter commented that forfeiture of a bond would have the effect of punishing an entire family. Some submitters suggested that the cost of administering bonds could outweigh the benefits.

While we support sponsors living up to their responsibilities (particularly when they sponsor people who are essentially unemployable when they arrive), bonds are a clumsy and inefficient way of doing so. They largely presume guilt ahead of the fact and are essentially deadweight costs on good sponsors. They are also likely to deter some sponsors. (Business New Zealand)

The use of bonds is of concern, potentially another significant financial hurdle that many applicants with a refugee background will be unable to surmount. (Wellington Community Law Centre)

A number of submitters expressed the view that bonds would be an unnecessary cost for employers and commented that employers have little influence over whether an applicant complies with their permit conditions. Some submitters suggested that there be a cap on the bond amount as in Australia, which would enable employers to budget or insure against any default on the part of the person sponsored. Concerns were also expressed about the possibility of bonds encouraging less scrupulous employers to engage in unlawful activities such as withholding passports or physically restraining migrants from leaving their place of work or accommodation.

Approximately 20 percent of submitters did not support the use of any specific immigration sanctions. Submitters noted that circumstances vary and may change or be beyond the control of the sponsor. One submitter expressed the view that any sanctions should be set out in the legislation rather than in immigration policy.

Summary of proposals

The discussion paper proposes making legislative provision for responsibilities to be imposed on employers, including an explicit legislative reminder that employers comply with all New Zealand employment laws and provision for further responsibilities to be established in government immigration policy.

The discussion paper also presents an option that would involve improving the enforceability of the current strict liability offence by:

• introducing a new obligation in the Immigration Act requiring employers to positively check (and cite reliable evidence) that a prospective employee is legally entitled to work in New Zealand, and
• removing the "reasonable excuse" of having sighted a tax code declaration.

Submitter response

One hundred and four submitters responded to this group of questions. This included 62 submitters responding on behalf of organisations and 42 private individuals. Organisations that made submissions on this proposal included immigration consultants, business and employer representatives, industry bodies, businesses, unions, community law centres, law societies, ethnic councils, migrant and refugee groups, volunteering organisations and government agencies.

Comments on question one

Approximately 65 percent of organisations and 80 percent of individual submitters who addressed this question agreed that immigration legislation should provide a stronger basis for employer responsibilities. These submitters commented that:

• many employers do not know what their responsibilities are, and/or
• the current system does not allow for sufficient measures to enforce employers' responsibilities, which leaves migrants vulnerable to exploitation.

Some submitters agreed with some aspects of the proposal but not others. Some submitters supported clarifying that employers must comply with the laws of New Zealand when employing migrants and that migrants are only entitled to work in New Zealand for the period of their work permit. Others considered that it is unnecessary to include such a provision in immigration legislation.

Some submitters were opposed to the proposed provision for additional employer responsibilities to be set out in government immigration policy. Concerns were expressed about the lack of certainty associated with this proposal and the possibility that any such requirements could be onerous for employers, especially smaller businesses. Submitters commented that this could be a significant deterrent to employers assisting migrants. Some submitters expressed the view that employers should have the choice whether to opt in to any accredited employer policies and should not be required to meet these requirements in order to hire employees from overseas. One submitter commented that further consultation would be required on any new policy obligation on employers.

We are less supportive of the proposal that additional obligations may be imposed on employers through policy. At this stage what is actually required lacks certainty, however, any such obligation could make it overly onerous for smaller employers to be able to assist migrants. (Employers and Manufacturers Association (Central) Inc)

Approximately 25 percent of organisations and 15 percent of individual submitters opposed any departure from the status quo. Many of the comments made by these submitters related to the possibility of employers being required to check the immigration status of prospective employers, and are discussed below. Some submitters expressed concern that employers were being "singled out" and commented that the legislative responsibilities of employers should be consistent with those of other third parties.

Employers face enough red tape, and we don't want to be turned into de facto immigration officials. (Individual submitter)

The Association believes the current provisions to be adequate and that employers should not be unfairly impacted by additional responsibilities and costs over and above other third parties, particularly given that an employer is likely to have less influence over a migrant than a family member of individual sponsor. We therefore strongly believe that employer responsibilities need to be treated under the revised Immigration Act in a manner consistent with the responsibilities of other third parties. (New Zealand Retailers Association)

Some submitters commented that the legislation should be slanted towards protecting the New Zealand employer rather than the non-resident employee. A number of submitters noted that employers make considerable effort and expense to bring employees to New Zealand and suggested that there be some provision to require those employees to remain with that employer for some period of time.

On the other hand, some submitters considered that insufficient emphasis was placed on the rights of migrant workers. These submitters suggested expanding the responsibilities of employers through:

• a universal good employer requirement
• a requirement for those bringing migrant workers to New Zealand to spend money on training New Zealand workers, possibly on a 1:5 ratio or as a percentage of wages paid
• a requirement to pay market rates rather than simply the minimum wage
• a requirement for employers to provide English language training, translation services and translated information and signage for temporary migrant workers that they recruit
• the use of employer bonds, initially in the fishing industry, to ensure that workers receive all of their wages, and
• the development of a framework to ensure the safety of temporary migrant workers while in New Zealand, drawing on the Code of Practice for the Pastoral Care of International Students and the Commonwealth Code of Practice for the International Recruitment of Health Workers.

Comments on question two

There was a high level of interest from submitters in the possibility of the legislation including a positive obligation on employers to check that a prospective employee is entitled to work for that employer. This option also generated a lot of discussion at the public stakeholder meetings.

Approximately two thirds of submitters supported this option, with some submitters commenting that it would help to protect New Zealand workers and act as a disincentive to employing illegal migrants. There was a difference in response between organisations and individuals: approximately 80 percent of individuals who responded to this question indicated their support for this option compared to approximately 60 percent of organisations.

In some cases submitters expressed qualified support, noting that:

• more work is required to determine what reliable evidence is
• the option should only be implemented if the existing law against racial discrimination in employment is effectively enforced, and/or
• employers should only be required to check the tax declaration.

Many submitters were strongly opposed to this option, particularly employers and employer groups, and also some migrant groups. The main reasons for their opposition related to the additional compliance costs that it would impose on employers and the risk that it would deter employers from employing migrants as a consequence. A number of submitters noted that employing migrants was already an onerous process and should not be made more so. Submitters were also concerned that it would aggravate the discrimination already faced by migrants when seeking employment.

We oppose all proposals to involve employers and education providers in compliance and enforcement of immigration policy. We believe that a number of the proposals in the discussion document will increase further the already heavy compliance costs burden on New Zealand businesses. Moreover we want employers and education institutions to be incentivised to employ more migrants, and attract more international students. There is a clear conflict between the discussion document's proposals and such incentivisation. (Wellington Chamber of Commerce)

Requiring employers to check all applicants' immigration status is fraught with practical difficulties and should not be implemented. As noted in paragraph 1022 of the Discussion Paper, there is a wide variety of evidence available to prove a person's lawful ability to work in New Zealand. To require an employer to become an expert in interpreting passports, permits, visas, citizenship documents and birth certificates as to their validity does not make sense. It is unlikely, for example, that an employer is going to be able to interpret a New Zealand birth certificate to determine whether pursuant to section 6(1)(b) of the Citizenship Act 1977 a person is a New Zealand citizen or not. (Immigration and Refugee Committee, Wellington District Law Society)

Although this may help maintain the integrity of the immigration system, this benefit is offset by the potential for selection discrimination. Barriers to migrant employment are already of concern, in particular the unemployment and underemployment of highly skilled and qualified migrants. This option would not be in the best interests for New Zealand or for migrant settlement. (Asia New Zealand Foundation)

Submitters considered that this option would place an unreasonable burden on employers and suggested that there is a limit to how much an employer can reasonably be expected to establish. Some submitters commented that it would not be conducive to good employer-employee relationships. Many submitters were of the view that the employee should bear the responsibility of ensuring that they only undertake employment subject to the conditions of their permit.

Some submitters expressed concern that the option would result in New Zealand citizens and residents having to prove their citizenship or residence status before they could be employed in New Zealand.

One participant at a public stakeholder meeting suggested the use of a "three strikes" regime for employers:

• a first breach would result in a warning
• a second breach would result in a fine
• a third breach would result in the employer no longer being able to sponsor workers from overseas.

A number of submitters commented that if employers are required to check immigration status, they need to be able to access good information from the Department of Labour to enable them to do so. They considered that any such system needs to be easy for employers to access. One submitter expressed the view that it would be unsatisfactory to have New Zealanders carrying their passport or birth certificate around with them as it would lead to documents getting lost or stolen and would increase compliance and record keeping costs for employers. Another submitter commented on the privacy rights of individuals and suggested that employers should only be able to access information on immigration status with the written consent of the employee.

Some submitters expressed concern at the length of time checking immigration status could take at peak times (such as the beginning of harvesting season) and the indirect effect this would have on all employers. Some submitters were of the view that information sharing between Immigration New Zealand and the Inland Revenue Department was desirable.

Some submitters commented that recruitment agencies and employment contractors should take responsibility for verifying the immigration status of people they refer to employers.

A number of submitters expressed concern about the potential impact of the option on volunteers and the organisations and communities that benefit from volunteering if volunteers were considered to be "employees". They noted the current uncertainty around whether reimbursement of expenses constitutes "gain or reward" in terms of the current definition of employment in the 1987 Act. These submitters suggested expressly excluding volunteers from the definition of employment and including new definitions of volunteer and volunteering in the legislation. This is discussed further in section 15.

Comments on question three

There was a mixed response to the possibility of removing the "reasonable excuse" of having sighted a tax code declaration for the strict liability offence of employing an unlawful worker. Just over 55 percent of submitters supported the option, with a number commenting that it provides no real clarification of immigration status or that it is too low a threshold to be a reasonable defence.

Some submitters expressed the view that employers should be educated about their responsibilities and more effective ways of checking immigration status. However, other submitters expressed the view this was unlikely to be effective.

It is unlikely that the Department of Labour would be able effectively to educate and inform all employers of migrants' status and obligations in New Zealand. Different employers have different levels of comprehension of their obligations. Others do not use government agencies or employer organisations for the provision of information about compliance. (Refugee and Immigration Committee, Wellington District Law Society)

Many submitters did not favour removing the reasonable excuse given their opposition to requiring employers to check immigration status. Approximately 20 percent of individual submitters and almost 40 percent of organisations indicated opposition to this option. Some submitters expressed the view that it was a reasonable defence and should be retained. Others considered that the responsibility should lie with the employee and that the employee should be held accountable for having made a false declaration. A number of submitters commented that the reasonable excuse should not be removed until more effective tools for checking immigration status are in place.

We contend that no legislation should be put in place removing the "reasonable excuse" until there is a clear and better way to establish the right to work. (Horticulture New Zealand)

Some submitters suggested that a differentiated approach be taken, with a higher standard of proof required for those industries, sectors or employers where exploitation of temporary migrant workers has been a problem.

Comments on question four

A wide variety of suggestions were made by submitters on ways that employers could be supported to meet their obligation not to employ unlawful workers. These included a mix of legislative and administrative options:

• employer education and the dissemination of information about employer responsibilities and ways of checking immigration status
• having information available to employers so they can readily determine immigration status, for example through a centralised information depository as in Australia
• placing an onus on employees to present the appropriate documentation to employers
• clearly stating what constitutes acceptable proof of status in the legislation
• enabling all visa holders to work full-time
• strict sanctions for those who employ unlawful workers, including fines or imprisonment and/or publicity about recidivist companies
• more rigorous enforcement of third-tier offences (knowingly employing an unlawful worker and exploiting that worker)
• an 0800 number for people to report unlawful workers
• routine site inspections, and/or
• introducing an identification system for all New Zealanders.

A few submitters from the fishing industry expressed particular concern about ship deserters. They expressed the view that, in addition to employers being obliged to check the immigration status of employees and contract labour, people should not be able to obtain an IRD number or a New Zealand driver's licence without demonstrating their immigration status and there should be some restriction on the ability of illegal workers to transfer funds out of New Zealand. These submitters considered that these measures would reduce the incentive for desertion and encourage some illegal workers to return home voluntarily.

A number of submitters expressed the view that the current legislation was adequate and that further measures were unnecessary.

Some submitters commented that there was too much emphasis in the discussion paper on punishing employers and that more attention should be given to ways of simplifying processes for employers. Some submitters expressed the view that the Department should place more trust in employers and issue permits in cases where an employer deems it necessary to employ a person from overseas.

The NZIS needs to pay more attention to the needs of companies and place more trust in them. If a company employs an applicant, but the applicant is unable to obtain residency or further permit extensions due to any specific reason, the NZIS should allow for discretion and approve permits to work if the company deems the applicant to be beneficial, or difficult to replace in the current market. (Individual submitter)

Summary of proposals

The discussion paper proposes including a specific requirement in immigration legislation that education providers offering places to international students be signatories to, and comply with, the Ministry of Education's Code of Practice for Pastoral Care of International Students.

The discussion paper also proposes strengthening the ability to enforce education provider obligations by:

• giving immigration officers the power to require information or documents from education providers where they have reasonable grounds to believe that an education provider has enrolled a student unlawfully, and
• establishing a more flexible penalties regime that includes instant fines, immigration consequences and prosecution.

Submitter response

Seventy six submitters responded to one or more of these proposals. This included 38 submitters responding on behalf of organisations and 38 private individuals. Organisations that made submissions included immigration consultants, representatives for the education industry, business representatives, businesses, ethnic councils, refugee and migrant groups, other community groups, the New Zealand Law Society, the Children's Commissioner and Government agencies.

Comments on question one

Over 80 percent of submitters who addressed this issue expressed support for including a reference to education providers' obligation to comply with the Ministry of Education's Code of Practice for Pastoral Care of International Students in immigration legislation. Submitters commented on the need to protect international students and ensure that education providers provide a high quality product and meet their responsibilities to students. A number of submitters made reference to the value of the export education industry to New Zealand and the importance of safeguarding New Zealand's international reputation.

International education is one of New Zealand's key revenue sources and it is therefore in the best interests of New Zealand to safeguard the quality of education and the responsibilities towards its international students. This would also enhance the perception of New Zealand as an attractive education destination. (Asia New Zealand Foundation)

One submitter expressed the view that the legislation should also take the New Zealand Qualifications Authority's audit rating of education providers into account. The submitter expressed concern about low quality institutions being able to recruit international students. They argued that this is detrimental to the export education industry and fails to achieve the immigration objective of facilitating the entry of good quality students who can go on to become productive workers and residents.

Approximately 10 percent of submitters indicated that they did not support the inclusion of a reference to the Code in immigration legislation. These submitters commented that:

• the proposal is unnecessary
• it would impose additional compliance costs on education providers
• it would not address the issues
• changes might be required to the Code, and/or
• there would be ambiguity about whether requirements would be monitored and enforced by the Ministry of Education or the Department of Labour.

Comments on question two

Approximately 70 percent of organisations and 85 percent of individual submitters who addressed this issue supported giving immigration officers the power to require information from education providers. These submitters commented on the need to monitor compliance by both education providers and international students, and to ensure that education providers are fit to take on international students. One submitter expressed qualified support, noting their concerns that the proposal could impact on education providers who are meeting their obligations.

On the surface, this proposal will help the [Department of Labour] clamp down on unlawful practices involving 'fly-by-night' operators on the fringe of the industry. However, we believe it would be an unintended negative consequence if this increased power impacted negatively upon good providers who are enrolling students lawfully. If taken to an extreme, educational institutions could receive daily/weekly demands to open their books to immigration officers. Ultimately, the utility of this proposed amendment will get back to the definition of "...reasonable grounds to believe...". (Education New Zealand)

Almost 20 percent of those who addressed this question indicated that they do not support the proposal. One submitter commented that the Government should "use a carrot, not a stick" in its approach to education providers, by encouraging education providers to meet the Ministry of Education's pastoral care standards. Others expressed the view that insufficient evidence had been presented in the discussion paper to warrant such a change for education providers. Concern was expressed that the compliance costs for businesses would be onerous.

Concerns were also expressed about the privacy of individuals.

Unless severely constrained, the proposal to grant immigration officers the power to require information from providers raises serious questions and challenges, with implications both for the Privacy Act and for the student-university relationship. Issues of student health and welfare, staff-student relationships, supervision of research, and support for students experiencing difficulties with study in New Zealand could all be compromised by unreasonable powers to demand information which should properly remain confidential to the student and certain staff within the institution. (New Zealand Vice Chancellor's Committee)

One submitter expressed the view that immigration officers should be required to obtain a warrant from the court in order to obtain information from education providers.

Another submitter commented that the information that may be requested should be restricted to the name of the individual studying and their progress and attendance, which is relevant to compliance with the terms of their student visa.

Comments on question three

Approximately 75 percent of submitters responding to this question supported the introduction of a flexible penalties regime for education providers. Submitters commented that effective penalties are needed to motivate education providers to meet their obligations and deter them from exploiting students.

There can be a range of offences by education providers from technical breaches to conduct tantamount to extortion. A system that is fast, responsive and effective would benefit international students and aid in ensuring that there is fair competition between education providers. (New Zealand Association for Migration and Investment)

Some submitters made suggestions on the range of penalties and actions that might be applied. These included fines, identification of offending providers, prosecution and checks of the visas of other students at the same institution. However, one submitter cautioned that care needs to be taken that children are not harmed by over zealous action against education providers and commented that education providers should have the right to challenge actions of the bureaucracy.

One submitter noted that the current offence of having "knowingly" enrolled a student who is ineligible to study in New Zealand requires the education provider to have received written notification from an immigration officer of the person's ineligibility to study. They commented that the Ministry of Education's Code of Practice for Pastoral Care of International Students, on the other hand, requires that education providers only enrol those who have the correct visa or permit, and so education providers should "know" whether a person is eligible without having to receive written notification.

Approximately 15 percent opposed the introduction of a flexible penalties regime for education providers. These submitters expressed concern about the compliance costs for education providers and commented that there may be genuine circumstances for a student being enrolled pending the approval of a student permit. Submitters expressed concern that the proposed instant fine regime does not provide an opportunity for education providers to respond, or give any indication of what might constitute "reasonable grounds". One submitter suggested that individual circumstances need to be taken into account, which is not achievable with an instant fines regime. Some submitters commented that there was insufficient evidence to justify a change from the status quo.

Other comments

One submitter made general comments on the proposed changes to legislative provisions on education provider obligations. This submitter expressed the view that there are opportunities for improving the coordination between education providers and government agencies at the policy and operational level and that legislative change is unnecessary. They noted that international education is very sensitive to changes in immigration policy and that care is needed to avoid adversely affecting the attractiveness of a New Zealand education. The submitter also proposed that Immigration New Zealand be required to provide education providers with information of any change in a student's immigration status, particularly during their period of enrolment, to avoid placing an institution unintentionally in breach of the Code.

Summary of proposals

The discussion paper presents two options for consideration. Option A would effectively preserve the status quo, making only minor amendments to the legislation, including:

• providing greater clarity about the timeframe within which information about a person's travel plans must be provided to the Department of Labour
• clarifying that carriers need to check for evidence of tickets for onward travel and funds
• clarifying that responsibility for removal costs relates to people without the appropriate documentation or approval, and may extend to people who hold a visa issued in certain circumstances, and
• removing minor inconsistencies in the 1987 Act regarding removal procedures to ensure that people can be removed quickly.

Option B would enable the Department of Labour to issue instant fines (infringement notices) to carriers who fail to meet their obligations. The level of instant fine would vary depending on which obligation was not being met, and officers would have discretion not to issue a fine depending on the circumstances.

Submitter response

Seventy submitters responded to one or both of these questions. This included 36 submitters responding on behalf of organisations and 34 private individuals. Organisations that made submissions included immigration consultants, airlines and representatives for the airline industry, ethnic councils, refugee and migrant groups, human rights groups and the New Zealand Law Society.

Comments on question one

There was a reasonable level of support from submitters for making minor amendments to the legislation to clarify carrier obligations, with approximately 70 percent of submitters who addressed this question indicating support for the proposal. However, there was little substantive comment on the proposal and a number of submitters indicated that they were unable to express a definite view without seeing the proposed wording.

Approximately 15 percent of submitters indicated that they did not support the proposal, including the three airline representatives that made submissions on this issue. These submitters commented that it is no longer appropriate to require carriers to check evidence of onward travel arrangements or sufficient funds given that people often do not carry physical air tickets and people may have access to funds from a variety of sources (for example credit cards). Submitters sought further clarification of the other proposed minor amendments.

The International Air Transport Association has as a goal the elimination of paper tickets before 1 January 2008 and in line with this, increasing numbers of travellers may not actually have physical documents. This reduces the ability for a carrier to ensure that a traveller has an onward ticket if this is an e-ticket booked on a different carrier. Furthermore, it is questionable, given the decline in international airfares, whether evidence of an onward ticket is necessarily a good indicator of a person's intention when they arrive in New Zealand. We would note that neither the United Kingdom nor Australia require airlines to check for evidence of on onward ticket (although the United Kingdom does recommend that airlines seek to verify this).

Similarly, we would question the utility of any requirement that airlines check that travellers hold sufficient funds. Given the nature of the international banking system, use of credit cards etc, it is impossible for an airline check-in agent to establish with any veracity exactly how much money a traveller would have access to. (Air New Zealand)

Some submitters commented that the onus should be on the individual to have the appropriate documentation. One submitter raised concerns with carriers being held responsible for carrying people who do not hold a Returning Residents' Visa. Another commented that it is not reasonable to require carriers to respond to a change in an Advanced Passenger Processing (APP) directive, particularly once the traveller is already en route to New Zealand.

Comments on question two

There were mixed views on whether the legislation should provide for an instant fines regime to address non-compliance by carriers. Approximately 45 percent of those who responded to the question indicated support for this option, approximately 35 percent were opposed to an instant fines regime, and the remainder were unsure or did not express a clear view. There was a difference in response between individuals and organisations: 60 percent of individuals supported the option compared to only a third of organisations.

Those who support an instant fines regime did not generally elaborate on their views. One submitter expressed the view that there should be varying levels of fine to ensure the penalty is closely associated with the offence and commented that the Canadian approach seems appropriate.

There were two main concerns expressed by submitters who oppose an instant fines regime. The first concern was raised by submitters representing the airline industry. These submitters noted that the overall level of non-compliance by carriers is very low and is often the result of complexity in the system. They argued that an instant fines regime would be unlikely to address this issue and that it would be far more effective to retain the current system of co-operation and education and work to improve carrier compliance. They also commented that an instant fines regime was likely to impact on the relationship between the Department of Labour and carriers.

Given that non-compliance by carriers is rarely deliberate, the imposition of a fine regime will not likely reduce the instances of non-compliance (as can be seen by the Australian infringement regime). Rather it will simply add to the costs and workload of both NZ immigration and carriers. This effort would be better spent investigating the problems and resolving them (i.e. more robust systems, improved reporting, increased training). (Qantas Airways Ltd)

The introduction of instant fines on airlines could well damage the existing good cooperation and working relationship which exists without achieving the expectation of Immigration NZ. (Board of Airline Representatives New Zealand)

The second concern was raised by human rights groups and organisations representing refugee and migrant interests. These submitters expressed concern that an instant fines regime would adversely affect people seeking asylum in New Zealand and noted the UNHCR view that airlines should not be penalised for transporting people seeking protection from persecution.

We oppose any strengthening of penalties against carrier companies. We do not want to see airlines and other transport industries become de facto assessors of refugee status, or to see them punished for unknowingly giving assistance to people who seek protection from persecution. (Caritas Aotearoa New Zealand)

One submitter commented that adding to carrier sanctions would bring into question New Zealand's commitment to international treaties that protect the rights of people to claim asylum. Another expressed the view that stowaways should not be denied the opportunity to seek protection by being immediately returned to their home country.