Explanatory note
This Supplementary Order Paper makes various changes to the Immigration Amendment Bill (No 2) (the Bill), which amends the Immigration Act 2009 (the Act). The more significant changes are explained below.
The Supplementary Order Paper amends clause 2 to—
provide that clauses 28, 59, 79, and 98B (which relate to obligations of carriers, and persons in charge, of craft) come into force 1 month after the Bill receives the Royal assent (instead of on the day after the Bill receives the Royal assent):
provide that clause 69 (which relates to search warrants) comes into force on the day after the Bill receives the Royal assent (instead of on 1 July 2014):
allow clause 94 (relating to the immigration levy), which under the current Bill comes into force 1 year after the Bill receives the Royal assent, to be brought into force earlier by Order in Council.
Part 1 (Amendments to Parts 1 to 7)
The Supplementary Order Paper amends clause 19 to clarify that, where a new visa is issued to a person whose visa has been cancelled under new section 64(1)(ab), the new visa does not cancel that person’s liability for deportation.
The Supplementary Order Paper deletes clause 27, which requires a carrier, or a person in charge, of a craft travelling to New Zealand to provide to the chief executive a description of the location of the information required under new section 96(2)(b). The Supplementary Order Paper—
removes this requirement from the Act, and instead allows the requirement to be imposed through regulations (see new clause 96A):
provides for the regulations to require the carrier or person to provide a description of the information prescribed for the purposes of new section 102(2), rather than new section 96(2)(b).
The Supplementary Order Paper amends clause 28, new section 102, which requires a carrier, or person in charge, of a craft travelling to New Zealand to provide information to the chief executive (in addition to the information required by section 96). The amendment allows the chief executive to exempt a carrier, or a person in charge, from providing some or all of the information in all or any specified circumstances. However, the exempt carrier or person in charge will be required to make some or all of the information available if the chief executive so requests within 14 days before or after the arrival of the craft in New Zealand. The Supplementary Order Paper also amends clauses 59, 79, and 86 and inserts new clause 98B to reflect the changes made to clause 28.
The Supplementary Order Paper amends clause 49, which amends section 179 of the Act. Section 179 prescribes the period for which a deported person is prohibited from returning to New Zealand, which differs depending on the reason for the person’s deportation. The amendment clarifies that the reason why a person was deported is determined according to the provision under which the person’s liability for deportation arose, as stated in the last deportation order served on the person (or in the last deportation liability notice served on the person, if no deportation order was served). The Supplementary Order Paper also makes a related amendment to section 171 to provide that a deportation liability notice must state a single provision under which deportation liability arose, not multiple provisions.
The Supplementary Order Paper inserts new clauses 58A to 58C, which relate to appeals and judicial review proceedings.
New clause 58A makes 2 amendments to section 245 of the Act, which provides for appeals to the High Court against decisions of the Immigration and Protection Tribunal (the Tribunal). First, new clause 58A provides that a decision by the Court of Appeal to refuse leave to appeal to the High Court is final. This means that a person cannot appeal to the Supreme Court against the decision to refuse leave. Secondly, new clause 58A provides that an application for leave to appeal, rather than an appeal itself, must be brought within 28 days after the date on which the appellant was notified of the Tribunal’s decision. The Supplementary Order Paper also amends clause 47, new section 175A, to reflect this change to section 245 of the Act.
New clause 58B amends section 247 of the Act, which requires judicial review proceedings of statutory powers of decision under the Act to be commenced within 28 days after the date on which the person concerned was notified of the decision (unless the High Court allows further time). The amendment excludes from this requirement those judicial review proceedings (described in new section 249(1) and (2)) that may only be brought with the leave of the High Court or Court of Appeal. However, the application for leave to bring the proceedings described in new section 249(1) and (2) must be made within 28 days after the decision is notified, unless the High Court allows further time (see new clause 58C, new section 249(4)).
New clause 58C replaces section 249 of the Act with new sections 249 to 249B.
New section 249 is similar to the current section 249 of the Act, except that—
it provides that, unless the High Court allows a longer period, an application for leave to bring judicial review proceedings must be made within 28 days after the date on which the person bringing the proceedings is notified of the Tribunal’s determination in respect of the decision or matter being reviewed:
it provides that a decision by the Court of Appeal to refuse leave to bring review proceedings is final (meaning that a person cannot appeal to the Supreme Court against the decision to refuse leave):
it provides that a court granting leave to bring review proceedings must state the issue or issues to be determined in those proceedings.
New section 249A restates the requirements of the current section 247(2) of the Act (which is replaced by clause 58B), which provides that a person who intends to appeal against a Tribunal decision, and to bring judicial review proceedings in respect of the same decision, must lodge the applications for the appeal and judicial review together. The current section 247(2) also provides that, if practicable, the High Court must hear both applications together. The Supplementary Order Paper provides that a person who intends to appeal against a Tribunal decision, and bring judicial review proceedings in respect of the same decision, must also lodge the application for leave to appeal and the application for leave to bring review proceedings together. It further provides that the High Court must, if practicable, determine both applications for leave together.
New section 249B provides that a party to judicial review proceedings for which leave was granted under new section 249 may only appeal to the Court of Appeal with the leave of the High Court or the Court of Appeal. The effect of this amendment is to remove the right in such cases to appeal to the Court of Appeal without leave.
Part 2 (Amendments to Parts 8 to 11)
The Supplementary Order Paper amends clause 80, and inserts new clause 81A, to amend the offence and corresponding penalty that applies to an employer exploiting an unlawful employee or a temporary worker. Currently, the offence applies in respect of—
an unlawful employee if the employer knows that the employee is not entitled to carry out the work that he or she is doing; and
a temporary worker if the employer knows that the worker holds a temporary entry class visa.
The amendment extends the offence to apply to an employer who is reckless as to whether or not—
The Supplementary Order Paper prescribes a maximum penalty of 5 years in prison, a fine not exceeding $100,000, or both if an employer is convicted of an exploitation offence and is reckless as to an unlawful employee’s entitlement to work or as to whether a temporary worker holds a temporary entry class visa. This is lower than the maximum penalty (of 7 years in prison, a fine not exceeding $100,000, or both) that applies if the employer knows that the unlawful employee is not entitled to work or that the temporary worker holds a temporary entry class visa.
The Supplementary Order Paper amends clause 92 and inserts new clause 92A to provide for fees and charges to be paid into Departmental Bank Accounts (in practice, operated by the Ministry of Justice and the Ministry of Business, Innovation, and Employment) instead of into a general Crown Bank Account.
The Supplementary Order Paper inserts new clause 96A to provide that the information prescribed for the purposes of section 96(2)(b) (which requires carriers, and persons in charge, of commercial craft travelling to New Zealand to provide information to the chief executive) may include a description of the location of the information prescribed for the purposes of new section 102(2) of the Act.
Departmental disclosure statement
The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Supplementary Order Paper. It provides access to information about any material policy changes to the Bill and identifies any new significant or unusual legislative features of the Bill as amended.
A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=sop &subtype=government&year=2015&no=65& 
.
Regulatory impact statement
The Ministry of Business, Innovation, and Employment produced a regulatory impact statement on 11 February 2015 to help inform the new policy decisions taken by the Government relating to the contents of this SOP.
A copy of this regulatory impact statement can be found at—