Slane, Bruce --- "Privacy & New Zealand's Human Rights Act 1993" [1994] PrivLawPRpr 29; (1994) 1(3) Privacy Law & Policy Reporter 44

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Privacy & New Zealand's Human Rights Act 1993

An address by Bruce Slane, Privacy Commissioner, on the occasion of the Act's commencement, Auckland, 1 February 1994.

It is with considerable pleasure that I address you on this great leap forward for human rights in New Zealand. The new Human Rights Act 1993 (NZ) is as significantly more advanced anti- discrimination law than the 1971 and 1977 statutes it replaces. No doubt you will all be aware of the new prohibited grounds of discrimination: disability; political opinion; employment status; family status; and sexual orientation.

In addition to the new grounds the law is strengthened in those areas where discrimination was already outlawed, such as racial or gender based discrimination. A few key improvements include:

(a)the narrowing or elimination of some exceptions which formerly permitted discriminatory practices;

(b) outlawing age discrimination in all areas (not just employment);

(c) the extension of the law to all partnerships;

(d) the (re) introduction of a racial disharmony provision;

(e) placing sexual and racial harassment on a clear statutory basis, and;

(f) for the first time, providing that human rights law will override other ordinary statutes.

This last, important measure, is delayed until 1999 and the completion of a systematic review of all laws to comply with human rights principles.

There are a number of very positive features of the reform which have not yet gained wide recognition. The extension of the New Zealand Bill of Rights Act to encompass all the new grounds of prohibited discrimination is one such matter. The establishment of the Commission's Complaints Division is another. Although the introduction of the new grounds is the most dramatic change many of these other features will also, I believe, be ultimately seen as important improvements in human rights law.

However, I intend to speak today primarily from a privacy perspective. It is by virtue of my position as Privacy Commissioner that I am a Human Rights Commissioner. I wish to use the remainder of my short address to point out some of the interrelationships between privacy law and anti-discrimination law: both form a part of a larger body of entitlements comprising human rights.

The Privacy Act 1993 (NZ) contains 12 Information Privacy Principles (IPPs). These govern the collection, use, storage, and disclosure of personal information about individuals. The principles cover all agencies in New Zealand whether in the public or private sectors. For instance, all employers whether as individuals, partnerships, companies, or government departments are ''agencies' and bound by the principles in the Privacy Act.

Accordingly, when an employer collects personal information from a prospective employee, privacy principles apply. An employer might collect information by way of an invitation contained in a newspaper advertisement, a letter to a prospective employee, an application form, or by direct questioning at an interview.

The right to compete fairly for employment is fundamental to a decent life in our economy and society. For this reason these kind of pre-employment situations are specifically addressed in the Human Rights Act. Investigation staff at the Commission will be familiar with allegations that someone has not been short- listed because of their race or sex, or have been asked questions at an interview which are inappropriate and might be presumed to indicate an intention to discriminate. For instance, women are sometimes asked questions at interview about their fertility, children and family responsibilities, husband's views and so forth.

The Human Rights Act tackles this by outlawing discrimination on the specified grounds and entitling people to file a complaint if they feel they have been discriminated against. There are also provisions concerning the content of advertisements and the question may be asked in job application forms.

The approach of the Privacy Act is somewhat different but will bear upon the pre-employment process in a way which reinforces the Human Rights Act.

The first privacy principle essentially says that an agency must have a lawful purpose for collecting information and the collection of that information necessary. In the pre-employment context, the employer would need to have a reason connected with the employment needs of the position to ask particular questions on an application form or at an interview. For instance, if the employer includes a question as to marital status or ethnicity on an application form, the employer would need to be able to justify the purpose for asking this. The third privacy principle would require the employer to make the prospective employee aware of a number of things which would include the purposes and intended recipients. The fourth principle prohibits the employer from collecting information by unfair or unlawful means or means that unreasonably intrude upon the personal affairs of the individual.

If the employer collects information with the intention of excluding candidates of a certain race or gender etc, this would breach the Act as would a policy to that effect.

This will have particular importance in cases of discrimination where it is difficult for the individual to succeed under the Human Rights Act. Exactly what those circumstances are will probably need to await experience of the two relatively new laws. However, I can tentatively indicate a couple of circumstances. First, would be the case where it is simply not possible to prove that the employer intended to discriminate. However, it may be possible to show nonetheless that the employer did not have a proper purpose to ask particular questions. Accordingly, a remedy may be available. Second, the Human Rights Act anti-discrimination provisions only cover certain defined areas such as employment, provision of goods and services and accommodation. The Privacy Act is not so limited and can reach into other areas of life such as the selection of sports teams.

These comments have only briefly touched upon some ''collection' issues in the employment context. There is insufficient time to canvas other issues of collection, use, storage and disclosure of personal information. However, during the last six months I have already been aware that the Privacy Act will provide a potent weapon to enhance the rights of many of the people who will now also be able to seek the protection of the Human Rights Act. I think, for instance, of individuals who are HIV positive or who may fear discrimination by reason of their sexual orientation. Many of such discrimination issues turn upon the control of personal information about an individual. The Privacy Act enables such individuals to choose to disclose details to people who may need to know such things in the knowledge that the Privacy Act provides some controls on what uses that information can be put to or who else can be told. The essence of the Privacy Act is to put as much control back with the individual or at least create a measure of "transparency" so that the individual knows what is going on.

One of the more significant areas in the Commission's new workload will concern disability discrimination. I also intend to address later this year some of the significant issues of privacy and disability. In particular, individuals with disabilities can face special issues of privacy in daily life by reason of reliance on others to assist with intimate personal routines. I hope to raise awareness and discussion of these and other issues so that practices can be modified to better provide privacy in all circumstances. I am pleased to tell you that I intend to focus attention on these issues this year.

I will conclude by saying that I welcome the new Human Rights Act. I am confident that the Act will benefit New Zealand society in years to come. It will promote values of tolerance and a fair go for all which are important parts of our nation's values. It also provides a potent weapon for enhancing individual autonomy and privacy. Conversely the Privacy Act will strengthen and reinforce the objectives of the Human Rights Act itself

Bruce Slane, New Zealand Privacy Commissioner.