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This Cabinet paper makes recommendations for the Bill in relation to the areas that were subject to the most submissions and are of interest to the Committee, along with the detention and monitoring system. This paper also addresses the �reasonable excuse� defence for the offence of producing or supplying false or misleading information or documents, and the role of the Human Rights Commission (HRC) in the immigration system. A further Cabinet paper on the recommendations for the refugee and protection system will be submitted to Cabinet in early March 2008.

This paper makes recommendations, among other things, relating to:
1. limiting classified information to information from security, defence, law enforcement and border agencies along with the Ministry of Foreign Affairs and Trade (MFAT) and the Department of Internal Affairs (DIA)
2. enabling the use of classified information only where a summary of allegations can be given to the non-citizen so that they may be informed of the gist of the prejudicial allegations against them
3. lifting the limitation on a special advocate lodging an appeal on a point of law or judicial review on behalf of a non-citizen relating to the classified “security” information aspect of their case, and
4. enabling senior, security-cleared determination officers to make first instance refugee and protection decisions

This paper recommends that where a failed refugee and protection claimant lodges an appeal, they must also lodge their humanitarian appeal. If their humanitarian appeal is not lodged at that time, failed claimants who subsequently became unlawful would not get a further opportunity to appeal.

Approximately 10 submissions call on the Government to establish an Immigration Commissioner to oversee the work of the Department of Labour (the Department). Unless some of the current appeal, review and complaint making mechanisms were limited, this position would have the potential to create parallel and duplicate mechanisms. It would come at some considerable cost, requiring the establishment of a new agency with an appropriate support structure.
In response to the submissions, I have directed the Department to report back to me on initiatives that could be used to increase awareness about the current formal and informal mechanisms and remedies available to non-citizens engaged in the immigration system. Developing such initiatives would be valuable in addressing the concerns about perceived lack of oversight. I do not recommend establishing an Immigration Commissioner.

Business New Zealand (Business NZ) and its stakeholder organisations support of the retention of the IR330 Tax Code Declaration form as a �reasonable excuse� defence for employers who employ a non-citizen without entitlement to work. They are primarily concerned about compliance costs associated with the changes to a �reasonable excuse� defence in the Bill.
Implementation planning for the new legislation includes the development of an online system to enable prospective employers to check entitlement to work. Communication and support provided to employers is the key to the success of the new provision. No change to the Bill is recommended.

This paper recommends partially restoring the status quo of the 1987 Act so that, where a warrant of commitment (warrant) is sought, except in exceptional circumstances, there is a presumption of detention of certain non-citizens who deliberately hinder their departure.
If it is Government�s intent that non-citizens who hinder their departure may be detained until deported, this could be achieved by excluding the �length of detention� as an �exceptional circumstance�. There is a risk, however, that this recommendation could be inconsistent with the New Zealand Bill of Rights Act 1990 (BORA) and, therefore, also the International Covenant on Civil and Political Rights (ICCPR).

This paper recommends removing the �reasonable excuse� provision from the offence of knowingly producing any false or misleading document to an immigration officer. The �reasonable excuse� defence is hampering the prosecution of non-citizens who knowingly seek to deceive the Department.

Two options are being recommended for the role of HRC, including the status quo of the 1987 Act which has been retained in the Bill, and enabling the HRC to intervene in legal proceedings (as an intervener or amicus curiae) in matters involving immigration law and policy. The option of enabling HRC to intervene was outlined to HRC in a letter from the former Minister of Immigration, and discussed with the Chief Commissioner by the Department. HRC was supportive of the option but maintained that it did not go far enough.
This Cabinet paper also has two appendices. Appendix A includes a range of technical policy recommendations. It is recommended that Cabinet agree to the recommendations in Appendix A. Appendix B includes a range of technical recommendations. It is recommended that Cabinet note the recommendations that will be made to the Committee in Appendix B. The recommendations will ensure that the Bill meets the objectives agreed by the Government.