Clause 5 amends section 9A, which defines mass arrival group, by repealing section 9A(2). The effect of the amendment is that the definition of mass arrival group no longer excludes groups of people arriving in New Zealand on a craft that is travelling to New Zealand on a scheduled international service.

Clause 6 amends section 17. Section 17 sets out exceptions to sections 15 and 16, which set out circumstances in which a person may not be eligible for a visa or entry permission. The amendment inserts new section 17(4), which clarifies that sections 15 and 16 do not limit the power of the Minister of Immigration (the Minister) to grant a temporary entry class visa under new section 75A.

Clauses 7 to 11 and 15 create new powers for the Minister to make class-related special directions. The new powers are intended to create more flexibility in the immigration system. They will enable the immigration system to more efficiently manage large numbers of visa applications and visa holders when there are operational challenges to the immigration system due to unusual circumstances. The new powers include process protections.

The Minister may not make a class-related special direction unless they are satisfied that it is being made in response to 1 or more of the following circumstances:

• any unusual circumstance:

• any circumstance that is unable to be dealt with under another provision of the principal Act:

• any circumstance that is outside the control of the Ministry of Business, Innovation, and Employment (the Ministry):

• any circumstance that poses a challenge to the immigration system.

A class-related special direction, or a waiver made by class-related special direction, may classify persons to whom a variation, cancellation of a visa condition, further visa condition, waiver, or visa extension applies by reference to specified shared attributes, such as their nationality or the country or place from which they are travelling or have travelled.

The Minister must certify a class-related special direction on the basis that—

• they consider that the exercise of the power to make the special direction in the particular situation is reasonably necessary to respond to 1 or more specified circumstances, such as any unusual circumstance or any circumstance that is unable to be dealt with under another provision of the principal Act; and

• they consider that the exercise of the power to make the special direction in the particular situation will benefit the class or classes of persons to whom it applies, or not disadvantage them; and

• they have undertaken any consultation that they consider to be appropriate in the particular situation.

The new class-related special directions are secondary legislation and must be published together with an explanation of their effect. The special directions must specify their duration (which must be 6 months or less), any statutory power exercised, and the class of persons to whom they apply.

The principal Act is amended to provide for the new powers to make class-related special directions as follows:

• clause 7 amends section 50 to provide that the Minister may, by special direction in relation to a class or classes of persons holding resident visas, vary or cancel conditions that would otherwise apply or that were imposed under section 50 (whether or not the conditions relate to travel to New Zealand):

• clause 8 amends section 52 to provide that the Minister may, by special direction in relation to a class or classes of persons holding temporary entry class visas, impose further conditions on the visas or vary or cancel conditions that would otherwise apply or that were imposed under section 52:

• clause 9 amends section 53 to provide that the Minister may, by special direction in relation to a class or classes of persons holding temporary entry class visas that are subject to restricted temporary entry instructions, impose further conditions on the visas or vary or cancel conditions that would otherwise apply or that were imposed under section 53:

• clause 10 amends section 57 to provide that the Minister may, by special direction, waive 1 or more prescribed requirements for applying for a visa in respect of a class or classes of persons:

• clause 11 inserts new section 61B, which provides that the Minister may, at any time of their own volition, by special direction, grant visas of any type to a class or classes of persons who are either outside New Zealand or who are in New Zealand and who hold temporary entry class visas. The visas that are granted may be contrary to immigration instructions:

• clause 15 inserts new section 91A, which provides that the Minister may, by special direction in relation to a class or classes of persons holding temporary entry class visas and transit visas, extend the visas by up to 9 months.

Clause 11 also inserts new section 61A, which provides that the Minister may, of their own volition and in their absolute discretion, grant a visa of any type to a person who is either outside New Zealand or who is in New Zealand and who holds a temporary entry class visa. The visas that are granted may be contrary to immigration instructions.

Clause 12 amends section 71, which specifies who may apply for a residence class visa. The effect of the amendment is to clarify that a person whose residence class visa has been cancelled under new section 75A may not apply for a residence class visa.

Clause 13 inserts new section 75A, which creates a new power for the Minister to cancel a person’s residence class visa if the Minister certifies that the person is a risk or threat to security but a refugee and protection officer has determined that the person cannot be deported.

Under new section 75A(2), if the Minister cancels a person’s visa, they must grant the person a temporary entry class visa of a type that the Minister thinks fit. A person who has been granted a temporary entry class visa may apply to the Minister for a further temporary entry class visa if the criteria for cancellation set out in new subsection 75A(1) still apply to them. On receipt of such an application, the Minister—

• must grant the person a further temporary entry class visa of a type they think fit; and

• may—

  • impose on the visa granted any conditions that they think fit; or

  • vary or waive conditions that would otherwise apply to it.

Clause 14 amends section 79, which specifies who may apply for a temporary visa. The effect of the amendments is to clarify that a person to whom new section 75A(2) applies may apply for a temporary visa under section 79 as well as under new section 75A(4).

Clause 15 also inserts new section 91B, which imposes an obligation on the chief executive of the Ministry (the chief executive) to report annually on the number of times in the previous financial year (and in the previous 3 financial years, if applicable) that the new powers to make class-related special directions have been used and why they were used.

Clause 18 amends section 161(1), which provides that a residence class visa holder is liable for deportation if they are convicted of specified offences. The effect of the amendment is to provide that a residence class visa holder will also be liable for deportation if they plead guilty to, or are found guilty of, a specified offence.

Clause 22 corrects a reference in section 268(1)(a) to the Lawyers and Conveyancers Act 2006.

Clause 25 inserts new subsections (2) and (3) into section 286, which empowers an immigration officer to enter and search buildings and premises to serve a deportation liability notice, deportation order, or removal order or execute a deportation order or removal order. Under new section 286(2), if an immigration officer intends to enter and search a dwelling or marae out of hours, they must first obtain a warrant authorising them to do so. The new requirement to obtain a warrant is intended to strengthen the integrity of the immigration system by ensuring that the exercise of search and entry powers out of hours is justified and by improving transparency around the use of those powers.

Clause 26 inserts new section 293B, which sets out how an immigration officer may apply for a warrant to enter and search a dwelling or marae out of hours. The application must be made to a District Court Judge in the manner provided for in section 98 of the Search and Surveillance Act 2012 (application for search warrant). In addition to meeting the requirements of section 98(1) of that Act, the application must—

• set out how the proposed entry and search is intended to be carried out; and

• include an assessment of how the proposed entry and search takes into account the culture of the person named in the deportation liability notice, deportation order, or removal order and anyone else who may be present in the dwelling or marae; and

• include consideration of the potential impact of the proposed entry and search on anyone else who may be present in the dwelling or marae, including children, elderly persons, and other vulnerable persons; and

• demonstrate that reasonable alternatives to the proposed entry and search have been considered; and

• include an assessment of whether the proposed entry and search is reasonable, proportionate, and in the public interest.

New section 293B(4) provides that a District Court Judge may issue a warrant to an immigration officer if they are satisfied that—

• there are reasonable grounds to believe that the person specified in the application is liable for deportation from New Zealand; and

• there are reasonable grounds to believe that the person is likely to be at the dwelling or marae specified in the application out of hours; and

• the application meets the requirements set out in new section 293B(3); and

• on the basis of the application, it is appropriate to issue the warrant.

Section 98 of the Search and Surveillance Act 2012 applies to an application under new section 293B but with specified modifications.

Clause 31 amends section 317, which sets out the options available to a District Court Judge on an application for a warrant of commitment. The effect of the amendments is to provide that section 317 does not apply to a person who is a claimant (a claimant is a person who has made a claim for recognition as a refugee or protected person in New Zealand).

Clause 32 inserts new section 317AA, which sets out the options available to a District Court Judge on an application for a warrant of commitment in relation to a claimant. New section 317AA is intended to provide additional protections for claimants who are the subject of an application for a warrant of commitment. Under new section 317AA(2), a District Court Judge must order that a claimant be released from custody immediately if the Judge is satisfied, on the balance of probabilities, that the claimant is not the person named in the application. In any other case, the Judge may—

• issue a warrant of commitment authorising the claimant’s detention for a period of up to 28 days if the Judge is satisfied that the claimant poses a clearly articulated threat or risk and detention is reasonable in all the circumstances, proportionate, and the least restrictive measure necessary to manage that threat or risk; or

• if the Judge is not satisfied that detention is warranted, order that the claimant be released from custody on conditions under new section 324F.

New section 317AA also provides that a District Court Judge may consider a person’s irregular entry into New Zealand when assessing whether the claimant poses a clearly articulated threat or risk but may not be satisfied that the person poses a clearly articulated threat or risk solely on the ground that the person entered New Zealand irregularly.

Various sections are consequentially amended to insert references to new section 317AA.

Clause 34 repeals section 320, which sets out the conditions that a District Court Judge may impose on a person who is released from custody. Section 320 is replaced by new section 324F.

Clause 35 replaces section 321, which sets out special conditions that a District Court Judge may impose if they decide to order the release on conditions of a person who has been arrested and detained as a suspected threat or risk to security or who is to be deported. The effects of the amendments are that—

• the condition prohibiting the person from having access to or using specified communication devices or facilities is now subject to an exception for the purposes of seeking and receiving legal and immigration advice:

• the non-association condition (a condition requiring the person to refrain from associating with named individuals or individuals associated with named organisations) is no longer a special condition that can only be imposed if the person who is to be released is a suspected threat or risk to security (the non-association condition is instead inserted into new section 324F to become a condition that a Judge may impose if they think fit when ordering the release of a person on a general application for release on conditions).

Clause 36(2) replaces section 322(2)(b). Section 322(2)(b) provides that, if the Minister decides not to certify that a person to whom section 322 applies is a threat or risk to security or does not make the certification within 14 days of the arrest of the person, an immigration officer must give written notice of the Minister’s decision to the manager or other person in charge of the prison or other premises where the person is detained. The effect of the amendment is to also require the immigration officer to give a person who has been released on conditions written notice of the Minister’s decision.

Clause 36(4) (which comes into force on the first anniversary of Royal assent) will add a further requirement in the case of a person released on an electronic monitoring condition under new section 324F(3)(da) (as inserted by clause 42(1)), which is to notify any chief executive nominated to be responsible for implementing and managing electronic monitoring conditions under new section 383B (as inserted by clause 52).

Clause 40 inserts new sections 324B to 324I.

New sections 324B and 324C empower an immigration officer to make an application to a District Court Judge for an order to release a person on conditions who has been detained in custody or who is liable to arrest and detention. New section 324B applies to non-claimants and new section 324C applies to claimants.

New section 324B(1) sets out the situations in which new section 324B applies, which include,—

• in respect of a person who has been detained in custody under Part 9 of the principal Act, it becoming apparent that, before the expiry of the period of authorised detention of the person, the person will not, or is unlikely to, supply satisfactory evidence of their identity; and

• in respect of a person who is liable to arrest and detention (but who is not detained in custody) under Part 9, it becoming apparent that the person has not supplied satisfactory evidence of their identity.

The situations in which new section 324C applies do not include the evidence of identity provisions that are contained in new section 324B(1).

New section 324C(3) sets out the requirements for the application for release on conditions. In addition to the statement of the reasons why the person should be released on conditions that is also contained in new section 324B, new section 324C(3) requires that the application must include a statement that explains the threat or risk that the person poses and how releasing the person on conditions is reasonable in all the circumstances, proportionate, and the least restrictive measure necessary to manage that threat or risk.

New sections 324D and 324E provide that, on an application under new section 324B or 324C, as applicable, a District Court Judge may order the release on conditions of a person to whom the relevant section applies or issue a warrant of commitment authorising that the person be detained for up to 28 days. New section 324D applies to non-claimants and new section 324E applies to claimants.

New section 324D(2) sets out the basis on which a District Court Judge may release a person on conditions, which includes the Judge being satisfied on the balance of probabilities that the person in custody is the person named in the application and that the person has not supplied satisfactory evidence of their identity. The provision in relation to evidence of identity is not included in new section 324E(3).

New section 324D(3) provides that if new section 324D(2) does not apply, the Judge may still order that the person be released on conditions if the Judge is satisfied that, in all the circumstances, it is in the public interest to do so. This provision is also contained in new section 324E.

Under new section 324D(4), when considering whether to order that a person be released on conditions or to issue a warrant of commitment, the Judge must have regard to the need to seek an outcome that maximises compliance with the purpose of the principal Act, as set out in section 3(1) of the principal Act. New section 324E does not contain this provision.

New section 324E(5) provides that when considering whether to order that a person be released on conditions or to issue a warrant of commitment, the Judge must be satisfied that—

• the person poses a clearly articulated threat or risk; and

• the conditions are reasonable in all the circumstances, proportionate, and the least restrictive measure necessary to manage that threat or risk.

New section 324E(6) provides that the Judge may consider a person’s irregular entry into New Zealand when assessing whether the person poses a clearly articulated threat or risk but may not be satisfied that the person poses a clearly articulated threat or risk solely on the ground that the person entered New Zealand irregularly.

New section 324F sets out the conditions that must or may be imposed when a District Court Judge orders a person’s release on conditions. A Judge must impose the following conditions:

• a reporting condition; and

• if the person is a claimant, a condition that they attend any required interview with a refugee and protection officer or hearing with the Immigration and Protection Tribunal.

In addition, new section 324F(3) provides that a Judge may impose any other condition that they think fit to impose in the circumstances, including, without limitation, the following conditions:

• a condition that the released person remain in, or not enter, specified places or areas at specified times or at all times:

• a condition requiring the person to provide a guarantor:

• a non-association condition:

• an electronic monitoring condition:

• a condition that requires the person to take a specified action for the purpose of facilitating their deportation or departure from New Zealand:

• any other condition that is relevant to the management of any threat or risk relating to the person.

New section 324F(3)(da) (as inserted by clause 42(1)) (electronic monitoring condition) comes into force on the first anniversary of Royal assent, unlike the rest of new section 324F, which comes into force on the day after Royal assent.

New section 324F(4) provides that a Judge may impose a condition under new section 324F(3) if they are satisfied that, when considered alongside any other conditions that are being imposed, the condition is the least restrictive measure necessary to manage the threat or risk and, when considered individually, the particular condition is the least restrictive measure necessary to manage the threat or risk.

New section 324F(5) sets out the purpose of the condition that the released person must remain in, or must not enter, specified places or areas at specified times or at all times. The purpose of the condition is to limit the released person’s ability to leave or enter the specified places or areas because there is a threat or risk that they will abscond and in order to place them on the first available craft leaving New Zealand.

New section 324F(5A) (as inserted by clause 42(2), which comes into force on the first anniversary of Royal assent) provides that a Judge who is deciding whether to impose an electronic monitoring condition must specifically consider whether imposing the condition is reasonable in all the circumstances, feasible, proportionate, and the least restrictive measure necessary to manage the threat or risk.

Under new section 324F(6), a condition imposed under new section 324F(2) or (3) must only apply for an initial term of no longer than 3 months (new section 324F(3) will be amended to include an electronic monitoring condition on the first anniversary of Royal assent). New section 324F(7) to (9) provides that the initial term may be extended for a further term, again not exceeding 3 months, if required.

New section 324F(10)(a) provides that the released person must be notified of any conditions that are to be imposed on them, which apply from the time they are released. The written notice of conditions must include a warning that the conditions apply from the time of the person’s release and that, if the person does not comply with them, they may be arrested or detained, or both (section 324F(10)(b)).

New section 324F(11)(a) (as inserted by clause 42(4), which comes into force on the first anniversary of Royal assent) provides that the released person must be notified of an electronic monitoring condition that is to be imposed on them, which applies from a specified date. The written notice of condition must include a warning that the condition applies from the specified date and that, if the person does not comply with it, they may be arrested or detained, or both (section 324F(11)(b)).

Various sections are consequentially amended to replace references to section 320 (which is being repealed) with references to new section 324F.

New section 324G provides that conditions imposed under new section 324F may be varied at any time by a District Court Judge by way of an application by the released person or an immigration officer. Alternatively, if the order imposing the conditions allows a condition to be varied, the released person and an immigration officer may agree to vary it. A variation of a condition takes effect immediately, must be in writing, and must be notified to the released person as soon as practicable.

New section 324H provides that a person released on conditions may later be arrested or detained (or both)—

• if an immigration officer determines that the person, without reasonable excuse, has failed to comply with any conditions imposed under new section 324F or varied under new section 324G; or

• if an immigration officer makes an application for an order that the person be detained under a warrant of commitment; or

• in order to execute a deportation order or to place the person on the first available craft leaving New Zealand.

Conditions imposed under new section 324F or varied under new section 324G lapse, and the person ceases to be bound by them, if the person is detained with or without a warrant of commitment under the specified sections, leaves New Zealand, or otherwise ceases to be liable to arrest and detention under Part 9 of the principal Act (new section 324I). New section 324I also provides that a condition will lapse on the final expiry of any term for which the condition applies.

Clause 43 inserts new sections 324J and 324K.

New section 324J relates to the electronic monitoring condition that may be imposed by a District Court Judge under new section 324F(3)(da).

Information about a person that is obtained through electronic monitoring may only be used for specified purposes, including to verify compliance with a condition that the person must remain in, or must not enter, specified places or areas at specified times or at all times (new section 324J(2)).

New section 324J(3) sets out the requirements on a person who is subject to an electronic monitoring condition, which include that they may be required to have electronic monitoring equipment attached to their body.

New section 324K provides that the Ministry’s annual report must include specified information about the use of electronic monitoring in the relevant year, including the total number of persons who were subject to an electronic monitoring condition at any given time during the year being reported on.

The effect of the amendment to section 355 (penalties: general) set out in clause 48 is that the penalty for the new offence will be imprisonment for a term not exceeding 7 years, a fine not exceeding $100,000, or both.

Various other sections are consequentially amended to insert references to new section 351A.

Section 378(2) empowers the Minister to give written special directions. Clause 50 amends the list of special directions that the Minister may give to include the following special directions:

• varying or cancelling resident visa conditions in relation to any class of persons (new section 50(4A)):

• imposing, varying, or cancelling temporary entry class visa conditions in relation to any class of persons (new sections 52(4A) and 53(4A)):

• waiving prescribed visa application requirements in relation to any class of persons (new section 57(3)):

• granting, at any time and of the Minister’s own volition, visas of any type to any class of persons (new section 61B(1)):

• extending temporary entry class visas and transit visas in relation to any class of persons (new section 91A(1)).

Section 380(1) provides that the Minister may, in writing, delegate to an immigration officer powers conferred on the Minister under the principal Act. Clause 51 amends section 380(1) to add to the list of powers that are excluded from the power to delegate the power to make special directions under sections 52 and 57 and new sections 50(4A), 53(4A), 61B, and 91A.

Clause 52 inserts new section 383B, which empowers the chief executive to nominate 1 or more chief executives of a public service agency to be responsible for implementing and managing electronic monitoring conditions imposed under new section 324F(3)(da).

Clause 53 amends section 388(1) to empower the chief executive to designate as immigration officers, for the purpose of electronic monitoring implementation and management, such other persons as the chief executive determines. The persons may be designated individually or by class or position.

Clause 54 amends section 389(2), which sets out how the functions and powers of an immigration officer may be classified. The effect of the amendment is to include electronic monitoring implementation and management functions and powers.