Mike:
Prime Minister Jacinda Ardern is with us, good morning.
Jacinda:
Good morning.
Mike:
This bloke that Lees-Galloway has given residency to, because he’s a protected person, despite the fact he has six drink driving convictions and two ‘driving without a licence’ convictions: just answer me this question, if you can. The immigration and protection tribunal give him protected person status; therefore, the minister has no discretion over whether or not he gets residency. Is that right?
Jacinda:
Well, he has no discretion over whether or not he can stay in NZ or not, he basically… he can’t be deported, so that’s ah um… ah… that basically limits ah… that’s where the limitation exists.
Mike:
So… so it’s voluntary to make…
Jacinda:
He cannot be forced to leave NZ…
Mike:
Okay.
Jacinda:
Ah… so… I’m not ah… a hundred percent… of course, um across the individual detail of this particular case, Mike, but what I do know is that decision around him being a protected person, that’s not a decision for the minister. That was made by the tribunal, as you pointed out.
Mike:
Okay.
Jacinda:
I’m not going to defend though, repeat drunk driving convictions, no one should. Um… the protections we expect us to be given as a country around that, that’s down to the justice system and they should be dealing squarely with that, as we’d all expect.
Mike:
So… so are you telling me that Lees-Galloway does have discretion – no, you can’t boot him out – but he does have discretion as to whether he makes him a resident or not?
Jacinda:
(Sucks in breath) I’m not giving you that response here, Mike, because I haven’t seen the case…um
Mike:
Just in general, under law, is all I’m asking.
Jacinda:
(indistinct)… until late last night and so I… I can’t actually tell you what was put in front of the minister on that. All I know is that he cannot ah… have that person removed… um… or leave him in a situation where he cannot stay in NZ.
Mike:
All right.
So, if he has discretion, would you be surprised that he’s offered residency to a man with that level of convictions that you didn’t have to?
Jacinda:
I’m not going to… I’m not going to offer up a hypothetical on that, but nor am I going to stand here and defend someone’s convictions.
Mike:
Because this would be… this would be… surely, if he has discretion… this would be Lees-Galloway in trouble yet again over a residency decision.
Jacinda:
Again, no, no… again Mike, again… keeping in mind here this person basically cannot be forced to leave NZ.
Mike:
No, I understand that but…
Jacinda:
Basically, the protected person means they stay.
Mike:
Yeah, but though not necessarily as a resident.
Jacinda:
Ah… and so what would you… what would you….
Mike:
I don’t know. That’s what I’m asking you. That’s what I’m asking.
Jacinda:
Well, again what I’m saying is that basically this person has to stay, so, you know, whether or not you’re having a conversation here around the individual um visa status, that person… that person cannot cannot be forced to leave New Zealand. So that removes a lot of discretion…
Mike:
Well why… and so, going back to my original question, if the immigration protection tribunal has the power to give the status of protected person, to that person, why doesn’t the minister then have the power to override that… why is the minister hamstrung?
Jacinda:
(Sucks in breath) Now I… again… this is not… you wouldn’t be alone in this, of course…
Mike:
Well that doesn’t matter. I’m talking about us.
Jacinda:
Yeah, yeah sure, but, actually we have international obligations that when people are determined… ah… to be protected persons – refugees, asylum seekers – then obligations flow from that.
Mike:
Yeah but… but… but here’s my question though: the… the minister has absolute discretion on residency but a minister doesn’t have absolute discretion on protected person status – why not?
Jacinda:
That is… that is my understanding, because a separate tribunal has made the decision.
Mike:
Yeah, but… I know that… but why?
Jacinda:
(Silence) But of course we have obligations that if someone is going to be…
Mike:
We make our own laws.
Jacinda:
Ah… ah…. yes, but we also sign up to conventions. So, Mike the question here would be: do you think that there should never be any situation where a person would have any protection over them…
Mike:
No.
Jacinda:
…anywhere.
Mike:
No, I’d argue that the minister should be making the decision – not a tribunal.
Jacinda:
Well, actually I do think that there are some cases where it is helpful to have some level of independence.
Mike:
But you must have over-arching um stewardship from the minister otherwise you are being dictated to by a tribunal?
Jacinda:
Well, actually, having a… having a third party… I think there is benefit to having third parties who are involved here to give um protection…
Mike:
Yeah, but not absolute power though?
Jacinda:
Well… ah….
Mike:
Otherwise you are not the government.
Jacinda:
Ah… (laughs)
Mike:
It is absolute power. That’s why I want to get to the bottom of it. It would appear to have absolute power over the minister.
Jacinda:
Do you think the minister… (deep breath) here Mike… do you think a minister of justice should have absolute power to overturn a decision made by a judge?
Mike:
Ah, well, potentially they do because the government is the ultimate court of the land – yes.
Jacinda:
No, no there’s no… again…
Mike:
The government can change the laws of the land.
Jacinda:
But Mike, the suggestion that a minister would override a court decision…
Mike:
But this isn’t a court decision.
Jacinda:
…on someone’s… No, but I’m making a parallel judgement here, there are situations where it is absolutely right that we don’t intervene. Courts are one of them. We should not come in and put a political overlay in decisions that are rightfully made through our justice system. So, there are examples, where actually we don’t have absolute discretion, we do have a separate process…
Mike:
Okay.
Jacinda:
And actually…
Mike:
Well, if you are happy with it. It just seems such a weird thing to me, that’s all.
Jacinda:
Well, I’m not happy with someone being a repeat drunk driver.
Mike:
No.
Jacinda:
Of course, you know, no one would be happy with that.