Dust yet to Settle on Immigration

As the Government reviews immigration policy for the screen production industry, Guild Immediate Past President David Madigan outlines the Guild’s role in assessing immigration applications, highlighting some recent issues and suggesting a way forward.

The present review of immigration policy by the Government is largely a reaction by the Ministers of Immigration and Economic Development to objections lodged against work permit applications for specific screen industry projects, primarily those by Actors’ Equity and to a lesser degree, the Techos’ Guild. The spotlight is shone on objections involving those international production companies who view the objection process as a barrier to doing business in New Zealand, and make this clearly known. In the Guild’s experience (and we typically process between 700 and 1200 individuals a year), most of these applications fail to meet, or even address, the requirements of the Government’s longstanding immigration policy.

While we don’t know the outcome of the current review (which began in June), there have been some pointed messages from the Government. One is to question why unions and professional associations are involved in the immigration process in the first place. It has been suggested this is an archaic practice adding an unnecessary layer of bureaucracy.

However, in the absence of a pan-industry organisation to provide qualified opinion on behalf of the entire sector, the current system – where relevant representative associations or unions such as Actors’ Equity and the Techos’ Guild are able to provide timely expert opinion and assess applications – actually expedites immigration processing in most cases. A fast turnaround of a ‘letter of non-objection’ from the appropriate guild or union enables Immigration New Zealand to process work permits quickly. Without this industry-based approval speeding up the application process, the international TVC sector in particular would be under significant stress.

A further benefit of our current process is connecting visiting productions with the local industry. The Techos’ Guild refers many productions to Film New Zealand and Regional Film Offices and provides advice on booking crew, locations and permitting. The Guild also identifies production safety risk-profiles where there is no local production management, insisting on compliance with New Zealand standards and tax laws.

The current Government also appears to be frustrated by the lack of cohesion in the screen industry and its inability to present a united voice on immigration. Indeed, the screen industry is notorious for its inability to provide broad consensus advice to Government on a number of issues. On immigration alone, each participating organisation (The Techos’ Guild, Actors’ Equity, Screen Directors’ Guild and SPADA) has quite different objectives and operational policies. This divergence is exacerbated by no direction from Government on how to interpret existing immigration policy – a policy that has been considered out of date and irrelevant for some time, with few understanding why and how it was developed. Although the Guild has been rigorously consistent in its assessment approach over the past decade, I am uncomfortable that there is no government-approved standardised approach to assessment across the screen industry.

Objections to work permits are universally disliked by Governments and Ministers of all political persuasions. Ministers always overrule Guild objections despite the common failure by production companies to comply with government-set criteria. To put it bluntly, Ministers typically support the production company regardless of the merits of their application when assessed against existing policy.

So what might we do to improve the current situation? I’ll address the current policy first and then attempt to deal with the big picture. There are two parts of the current policy WS3.1 that should be deleted. In the first clause, the term “manifestly essential to the production” is subjective and open to interpretation. The entire second “wider benefit” clause is commonly misinterpreted and regardless, most crew that the Guild would reasonably approve will never pass the test.

The third clause addresses the fundamental purpose of immigration policy: New Zealand entertainers or professionals who are available to perform the specific role must be considered by the production company. This must clearly be acted upon in good faith and in a transparent process that withstands industry scrutiny.

The bottom line is that a significant part of the screen industry exists to service international production. If there are New Zealanders who can do this work, then they need to be given priority and considered in good faith. Our most experienced and talented heads of department – 1st ADs, Production Designers, Costume Designers and Directors of Photography all need to be part of the immigration formula. There is no point in developing an industry where our best talent is expendable.

Pragmatically, the Guild adds a fourth criterion when assessing applications: common past practice. This provides consistency allowing us for example to make individual assessments for international TVCs that would nominally fail one or two of the policy conditions. To be honest, if the Guild assessed applications solely against the policy conditions, most applications would fail and many shoots would not happen. The Guild applies what precedence has been established as reasonable to facilitate intentional TVCs and some small travelling productions.

In looking at the bigger picture, I believe the Government needs to establish a policy direction which sends a clear statement of intent to everyone involved in the process of bringing international productions and screen investment into New Zealand. In developing this policy, the Government needs to first decide whether attracting and facilitating international production in New Zealand is primarily to be achieved by promoting our great scenery, relatively low cost crews and 15% cash grant for large productions. Or, whether it’s also about promoting the talent and skills of New Zealand crew, cast, directors and producers as a significant point of difference from other screen production destinations, and in so doing supporting, developing, and respecting the careers of NZ-based screen industry professionals.

In addition, any new or revised policy must support the notion that New Zealand industry participants (such as the representative guilds and associations) – not foreign production companies – are best placed to advise on the competence and capacity of the NZ screen production industry vis-a-vis requests for international personnel on productions. Ceding immigration decisions to non-New Zealanders, even if they are substantial investors, is a serious policy issue for Government. The thorny fact that New Zealand producers are often acting on behalf of international clients, and therefore not in the interests of Government policy, also needs to be considered.

The screen industry work permit policy also applies to domestic production. When considering any possible liberalisation of immigration rules, in order to uphold the fundamental principle of public support for domestic content in film and television, a distinction must be made between international and domestic production.

Lastly, the policy needs to endorse the overriding work permit goal of “New Zealanders First”.

If the current review manages to clarify policy ambiguity and to safeguard the interests of our talented screen production community, then the entire screen production industry needs to work together to embrace and promote that policy in good faith.

Case study: Government overturns Guild recommendation in Power Rangers application

The Government’s decision to go against the Guild’s recommendation in the Power Rangers case demonstrates the inadequacy of current policy and guidance. In this case, the Guild closely followed current immigration policy and past precedent, yet the Government was swayed by a persuasive international investor to ignore precedent and accepted policy.

On the one hand, the Guild argued that all previous series of Power Rangers shot in New Zealand had local DoPs and on that basis, why was a non-New Zealand DoP needed? On the other, the US producers argued they should be able to bring into New Zealand whoever they want given their (considerable) investment.

Just for the record, the Power Rangers franchise was sold by Disney to Saban Brands earlier this year. Haim Saban was the original developer and the executive producer of Power Rangers through the 1990s in the USA. US producer Jonathon Tzachor is now charged with making the series in New Zealand. Jonathon had worked on the show in many roles in the 1990s and he wanted to bring in and use the DoP on the US production from that period, Ilan Rosenberg.

Using our standard approach to work permit assessments, the Guild sought supporting information from the production company that they had complied with Immigration New Zealand policy. The Guild also tested the market to see if there were any suitably experienced DoPs available and investigated precedence or past practice.

Fundamentally, the Guild could not find any evidence of compliance with Immigration New Zealand Policy.

The Guild concluded that an objection was logical and appropriate for four very valid reasons. Firstly, the production had failed to consider Immigration New Zealand policy before appointing the DoP. Secondly, the application failed all three criteria in the policy. Thirdly, there was considerable precedence to suggest the appointment of a New Zealand DoP was appropriate. And finally, Jonathon Tzachor’s reasons for wanting a non-New Zealand DoP fell outside Immigration New Zealand policy.

The Guild’s formal objection, along with a submission from the production company, was considered by Immigration New Zealand and the Associate Minister of Immigration, Hon Kate Wilkinson.

The Associate Minister approved the work permit and, as is common practice, did not provide any reason for doing so. As a matter of principle it should be noted that, had the Guild approved the US DoP by issuing a letter of non-objection, then it would have been ignoring Government policy and the standards set in making assessments over the past 10 years.

Summary of the Guild’s Assessment:

1. The production company never considered Immigration New Zealand policy when appointing the US DOP. The Guild held the opinion that US producer Jonathon Tzachor was unaware that New Zealand had a screen industry-specific immigration policy.
2. The US DoP did not comply with the 1st policy condition requiring international distinction or merit, or being manifestly essential to the production.
3. The US DoP did not comply with the 2nd policy condition which requires evidence that his presence in New Zealand would bring economic benefit that would outweigh any job losses to New Zealanders. The production company argued that the production itself provided economic benefit but it is the individual who is being assessed, not the production as a whole.
4. It was clearly evident that the application did not comply with the 3rd policy condition which requires evidence that New Zealanders are considered for the production. There had been no reasonable attempt to give preference to engaging one of the many suitably experienced DoPs who were available. The Guild noted that given the low level of production in New Zealand in the current year, there were a considerable number of suitably experienced DoPs available.
5. The Guild also noted that by way of precedent and past practice, at least since 1990 and most probably ever, no international DoP has ever worked on a long-form international television drama series in New Zealand. From this perspective alone, the application was quite extraordinary.

The Guild met with US producer Jonathon Tzachor and NZ producer Sally Campbell who clearly indicated that they wished to proceed with the application for the US DoP on the basis that they believed it complied with Immigration Policy. Jonathon Tzachor was very clear and frank about what he wanted and the Guild is not questioning his sincerity. Fundamentally, Jonathon Tzachor wants his man despite stating that he had no doubt that New Zealand DoPs could shoot the project and there was no criticism of the work of New Zealand DoPs on previous series during the Disney years. Jonathon’s position as presented to the Guild was based on the need for him to feel comfortable in his choice of DoP given the huge amount of pressure on him personally to deliver on the investment in this project.

In effect, the Guild could not have competently assessed any future applications. No doubt there would have been many crew who would have been wondering what the Guild actually stood for. As is the case with all objections by the Guild (about one per year over the past 10 years), the essence of the matter is that someone else has created a situation where the Guild is obliged to object to a work permit. The common cause is a failure to have knowledge of and / or comply with New Zealand Government Immigration Policy. The Guild is always unimpressed that blame is attached to the Guild in cases like this when it clearly lies elsewhere.

Amongst the camera community, there was considerable disquiet about an international DoP working in New Zealand in a genre where none had worked before. New Zealand DoPs clearly have the talent and experience to deliver the technical and creative brief as required by international producers. Past and current international television drama series made in New Zealand have clearly demonstrated this point.

As is the case with all past objections, the Guild stands by its objection as being a robust assessment based on longstanding Government policy.

Section WS3.1 of the Immigration NZ (INZ) Operations Manual concerns temporary work permits for personnel in entertainment and screen production and has remained fairly much the same for 20 years or so._ This requires that relevant information about the application is presented to an appropriate professional association or union. The association or union in turn provides INZ with either an objection or non-objection in each case based on three criteria (see the Power Rangers case study on the next page for details of these criteria). Note that each assessment is about an individual in a production, not the production itself._