Privacy Law and Policy Reporter
compiled by Graham Greenleaf
Justice Michael Kirby, President of the NSW Court of Appeal, has been appointed as a Justice of the High Court of Australia, and will be sworn in on 6 February. Justice Kirby has a distinguished record of privacy advocacy, including the chairing of the OECD expert groups which prepared the influential OECD Guidelines on privacy and transborder data flows (1980), and a decade later, the Guidelines on information security (1990). He also chaired the Australian Law Reform Commission while it produced its Report on Privacy (1984), although its recommendations were (in hindsight) considered too weak. In recent years, he chaired the Australian Privacy Charter Council (1994), and is a member of this publication's Editorial Panel.
Justice Kirby's appointment to the High Court comes at a time when the Court is more frequently dealing with significant privacy issues, such as in Johns v ASC (confidentiality of compulsorily acquired information - see 1 PLPR 1), Coco v the Queen (trespass and listening devices - see 1 PLPR 51), the as-yet-undecided appeal in Breen v Williams (patient's rights in relation to medical records) in which Kirby P was in the minority in the NSW Court of Appeal (see 2 PLPR 10), and the Tasmanian gays' attempt to challenge Tasmanian sexual offences under the Human Rights (Sexual Conduct) Act 1994 (see 1 PLPR 121, 200).
The attempt by rape case defence lawyers to subpoena rape crisis centre client notes has received a great deal of recent legal attention in Canada, and this is also now occurring in Australia.
In Queanbeyan Local Court, Di Lucas of the Canberra Rape Crisis Centre went to jail briefly before Christmas rather than comply with a subpoena to produce counselling notes. The documents are held in a locked briefcase at the court while legal arguments continue. The ACT Rape Crisis Centre has announced it will appeal if disclosure is required. NSW Attorney-General, Jeff Shaw, has promised to introduce legislation to protect client confidentiality in such situations. Similar disclosures have been required during the last year in WA on at least eight occasions, and in Victoria.
In Canada, the Supreme Court is about to hear appeals from two provincial Courts of Appeal that have reached different results on client confidentiality. In Queen v Bishop the British Columbia Court of Appeal protected psychological reports in a case alleging rape by a Roman Catholic Bishop of aboriginal children. In R v Beharriell the Ontario Court of Appeal upheld a decision ordering disclosure of sexual assault counselling records from Women's Outreach and a hospital. The Canadian situation is extensively covered in a series of articles in the January 1996 issue of the excellent Canadian journal Privacy Files (fax +1 514 922 9152).
The US Federal Government has dropped all charges against Phil Zimmermann, the author of the public key encryption program Pretty Good Privacy (PGP), which put strong encryption into the hands of anyone who wished to use it. Zimmermann was under investigation by the US Attorney's Office in connection with the 1991 posting of the encryption program on USENET, in alleged breach of US munitions export laws. Zimmermann, who has become something of a folk hero on the internet, and recipient of a 'Pioneers' award at last year's Computers, Freedom & Privacy Conference, told EPIC Alert that he was 'greatly relieved ... thrilled and elated'.
Copies of PGP and PGPF one may be downloaded from the EPIC web site at: http://www.epic.org/privacy/tools.html
NZ Telecom is running a caller ID 'pilot' in the Greymouth local calling area ('a community which has specific geographical boundaries and which makes a large number of local calls' - like Wauchope) before introducing it NZ wide. A colourful Pilot Information brochure gives a few vague assurances about its advantages, and no mention of any disadvantages. During the pilot all aspects of the 'service' will be free. Once introduced, call blocking will be free if you dial some extra numbers, but the brochure implies that there will be a charge for line blocking. The brochure says Telecom will introduce called ID commercially as soon as the pilot is completed.
A consultant's report to the NSW Department of Transport's taxi driver safety committee recommends installation of surveillance cameras in all 4,400 Sydney taxis. Each passenger would be photographed on entering the taxi, by a 'black box' camera. Photos could only be accessed by taxi cooperative staff in the event of an attack on a driver (the high levels of which prompted the report). It is proposed that photos be wiped after every 40 or so shots. The NSW Minister for Transport, Mr Langton, is reported to favour the scheme (Sydney Morning Herald, 5 January 1996).
The NZ Commissioner has started his own (free!) newsletter, Private Word, partly in order to counter the 'desire of newspaper editors to paint the Privacy Act as silly or producing ridiculous results'. Issue #1 details misconceived views of the Privacy Act's effects on disclosure of mental health information, and how NZ airlines try to blame their (pre-existing) policies not to release passenger information on the Act.
As the case reported in this issue of PLPR illustrates, some NZ Police have also tried to use the Privacy Act to produce ridiculous results, but without success.