Dalziel Lianne: Immigration Bill — In Committee 
Dalziel Lianne: Immigration Bill — In Committee 
[Volume:657;Page:6754] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I will carry on from the argument my colleague David Cunliffe made because he started off with the point that perhaps I had overlooked which was that hard cases make bad law. We have a really high risk of doing that with the series of changes to the refugee and protection provisions of the Immigration Bill. I think the Minister wants to make the changes for appropriate reasons so I am not having a go at the Minister for making these changes. But the changes will not act in the way he thinks they will and they will not offer protection in the kinds of examples we have already had put before us. The reason for that is that there is a high risk that other people could be involved in putting things in the public arena. There is a high risk that others could suffer the consequences of information being disclosed in the public arena within New Zealand. Of course any information that is publicised in New Zealand is automatically available internationally within seconds as we know in a whole lot of different areas. 
The Minister may have wanted to see changes in this area and they may not look like they are much of a change. We need to put it on the record that the bill as it stands states: “Nothing in this section applies to prevent the disclosure of the fact that a person is a claimant a refugee or a protected person or the disclosure of particulars in relation to a claimant a refugee or a protected person to the extent that the person concerned has expressly waived his or her right to confidentiality under the section;”. 
The Minister’s amendment to clause 140(5) in Supplementary Order Paper 32 has now been extended with “by his or her words or actions impliedly waived his or her right to confidentiality under this section.” The amendment is not needed. If the implication is of sufficient weight then it will fall within the express waiver of the right to confidentiality. Many court cases have upheld the right to do so. Adding “impliedly waived” gives incredible authority for the Minister of the day to just basically draw the line wherever he or she wants to draw the line. It is a very dangerous provision. 
I do not think it would stand up in any international jurisdiction. That is why we have been waiting to hear what the United Nations High Commissioner for Refugees had to say about the provision. We find it hard to believe that the United Nations High Commissioner for Refugees would say that it is a good change for us to be making to our law. When we had our meeting with officials we certainly made the point that we did not agree with the particular change to the law but we did understand that we were going to get some feedback about what the United Nations High Commissioner for Refugees thought about this. We would really appreciate the Minister providing us with some explanation as to how the United Nations High Commissioner for Refugees has responded. 
I think the implied waiver is an extremely risky track to go down. I am urging this Committee to think very carefully about supporting this amendment. This amendment has high risk for people whose very lives may be at risk. It is all very well to say that because somebody has dared to suggest to a journalist on the way to a hearing that he or she has a genuine case that that suddenly gives the Minister the right to put everything in the public arena. One has to be extremely careful about that. There are so many instances that I can think of where it may be thought that there is an implied waiver but in fact there is no waiver intended. Indeed the involvement of third parties as my colleague David Cunliffe has said may lead to people inadvertently creating the implied waiver situation because it may be regarded that in advising someone else of their circumstances they have impliedly waived their right to confidentiality under the section. 
That provision is in section 129 of the Immigration Act 1987 and as a former Minister of Immigration I was very very mindful of my obligations to keep confidentiality. I think the Government needs to rethink this provision.