SHOULD MEMBERS of parliament become involved in assisting migrants with visa issues? A former New Zealand Labour MP, Taito Phillip Field, might well have been pondering that question over the months since he was found guilty of twenty-six charges of corruption and bribery, and conspiring to pervert the course of justice, in August this year.
Dealing with migration matters sounds like an acceptable part of an MP’s job. After all, MPs deal with a range of issues on behalf of their constituents, from a lack of childcare or nursing home places and unfair work practices to the need for new equipment at the local hospital. These issues are taken up with the relevant minister (which is a lot easier if the MP is also in the governing party) and, if there isn’t a satisfactory response, MPs can use their media profile to apply pressure.
But immigration matters have a habit of landing MPs in trouble. In Australia, this famously occurred in the case of the Labor MP Andrew Theophanous, who was jailed for six years in 2002 (and served two years), particularly for seeking and taking unlawful inducements in relation to immigration applications. Allegations that visa decisions were linked to political donations, never proved, also dogged the Howard government. The potential for corruption is made easier when ministers have discretionary powers over visa applications, as is the case in Australia and New Zealand.
The charges against Field related to allegations that were raised ahead of the 2005 election, when he was an associate minister in Helen Clark’s government. Field had organised work permits for Thai immigrant tradesmen whom he then expected to work off the favour, unpaid, by renovating properties he owned. He subsequently sold the properties for a significant profit. One of the tradesmen, frustrated by not being paid for his work, turned whistleblower.
Labour stood by Field when allegations were first raised in 2005. “I think the only thing he is probably guilty of is trying to be helpful to someone,” said Helen Clark at the time. But the party quickly cut him loose after police began investigating further allegations a year later.
Field continued sitting in parliament as an independent, but at the 2008 election failed to retain the seat of Mangere, which he had held for twelve years, being soundly trounced by the new Labour candidate. The political party he had established to harness his support within the Samoan community, the Pacific Party, failed to make an impact, winning less than 0.5 per cent. (Field was born in Samoa, and “Taito” is an honorific reflecting his chieftain status.)
This month Field received a six-year jail term. According to the sentencing judge, Field’s actions “threaten the institutions that are at the foundation of our democracy and justice.”
New Zealand has stronger political finance laws than Australia, and these are a reasonable safeguard against a political party benefiting from a “cash for visas” scenario. But that doesn’t prevent individuals from benefiting, as was the case for Taito Field (at least until he was convicted). So it could be argued that the system of ministerial discretion remains viable, despite the fact that it can’t prevent individuals from acting corruptly – in the same way that public servants who have powers over such matters could be tempted to act corruptly.
If discretion stays, then the best safeguard against the corrupt use of ministerial discretion in visa application matters may be to establish a more transparent system of notifying when discretion has been used. Australia’s Migration Act has a limited degree of built-in accountability, requiring a minister to table in parliament his or her reasons for applying discretion (although it can take up to a year after the decision was made).
But New Zealand’s Immigration Act appears to be silent on this issue (except in regard to security risks), with section 130 allowing a minister to exercise discretion on visa matters without having to justify the reasons for supporting or rejecting applications. In a more transparent system, a ministerial statement, published on the minister’s website, could provide details of when and why discretion has been used. There would be no need to include an applicant’s personal details.
It can be argued that there is a need to exercise discretion on immigration matters, simply because laws cannot anticipate the particular circumstances of all individuals. And it can equally be argued that the most appropriate person to exercise such discretion is a minister who is responsible to parliament and answerable to the people at elections, rather than a public servant (though the public servant may have greater expertise in such matters).
But unless there is sufficient built-in accountability and transparency to such decisions, a minister can remain as hidden as the “faceless” public servant. And when decisions can remain secret, the temptations for either personal or party reward become greater. •
Norm Kelly, an associate of the Centre for Democratic Institutions at ANU, lives in Wellington.