Stewart, Blair --- "Reports and submissions" [1996] PrivLawPRpr 64; (1996) 3(7) Privacy Law & Policy Reporter 133

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ID CARDS FOR NZ?

Land Transport Safety Authority (NZ) discussion document Driver Licence Format (May 1996); Ministry of Justice Liquor Review 1996 (July 1996)

NZ does not have a national ID card nor a national ID number. Some cards do exist, such as the community services card, but are not universally held. No widely held official documentation comes in the form of a photo-bearing card. Information privacy principle 12 of NZ's Privacy Act prohibits agencies whether in the public or private sector from assigning each others, unique identifiers or adopting one central number, such as the tax file number.

However, interest in the idea of a nation-wide ID card continues to be shown in some quarters. Although no proposal has gone anywhere near Parliament there are currently two administrative reviews which have the creation of a national ID card under consideration.

The Land Transport Safety Authority has, since 1995, been conducting a major review of all aspects of the driver licensing system. Currently most drivers are not required to carry their licence, which is a paper document. In a discussion document the LTSA canvasses the possibility of moving to a credit card sized photo ID licence possibly having some advanced electronic features. On one option, this would be accompanied by a mandatory requirement to carry the licence when driving. With NZ being a society heavily dependent on the automobile, this could effectively create a de facto national ID card for people aged 15 years and over.

In late 1996 an advisory committee was appointed to review NZ's liquor laws and the ministry of justice released a discussion paper to guide the review. One of the issues under consideration is the serving of alcohol to minors on licensed premises. The ministry's discussion paper puts forward two rather stark alternatives on the issue which is to remain with the status quo or to introduce a nationwide photographic ID card (and the ministry particularly notes the LTSA's drivers licence review). The Committee which last reviewed our liquor legislation considered the matter and expressly stated that it did not support the introduction of ID cards -- commenting that refusal of service is the appropriate action if there is any doubt about customer's age. It will be interesting to see if the present review committee concurs.

The Privacy Commissioner has provided some input into both reviews. On the drivers licence proposal the Commissioner has suggested that if any of the more privacy-intrusive options are favoured by the LTSA that it should commission a privacy impact assessment and incorporate that analysis and recommendations into its decision-making processes. The Commissioner has expressed some scepticism about the value of ID card in the liquor context and the privacy cost of imposing that `solution' on our entire society. He notes, for instance, that there are many problems associated with national ID schemes and even if a card was introduced the `problem' premises may continue to serve under-aged patrons.

The LTSA's discussion document Driver Licence Format (May 1996) is available from PO Box 2840, Wellington, NZ. Liquor Review 1996 (July 1996) is available from Ministry of Justice, PO Box 180, Wellington, NZ or at the Ministry's web site: http://www.govt.nz/ps/min/justice

Blair Stewart.

SELF-INCRIMINATION

NZ Law Commission preliminary paper 25 Privilege against Self-incrimination (September 1996)

As part of a larger project to review the entire law of evidence, the NZ Law Commission has focused on the privilege against self-incrimination. The Law Commission has highlighted privacy as a central matter to consider. As the courts in their judicial capacities are not `agencies' for the purposes of the NZ Privacy Act the protection of privacy in court proceedings is a matter for court rules, judicial practices, the common law and mechanisms such as the privilege against self-incrimination.

The Law Commission draws on the analysis in the 1964 US Supreme Court case Murphy v Waterfront Commission in its discussion paper. In particular, it analyses perceived problems and the possible options for reform in the light of seven interests referred to in Murphy said to justify the privilege:

• the avoidance of the cruel trilemma of self accusation, perjury or contempt;
• the preference for an accusatorial system
• the prevention of inhumane treatment and abuses;
• the maintenance of a fair state-individual balance;
• the protection of the human personality and individual privacy;
• the unreliability of self-deprecatory statement; and
• the protection of the innocent.

The Commission notes that privacy and similar values can be protected by a successful claim to the privilege because the claim protects the person from disclosing personal knowledge or information and also prevents the use and dissemination of that information in proceedings. Therefore, the privilege safeguards privacy in a way that subsequent exclusion of improperly obtained confessions cannot.

Privacy interests are not absolute and the weight accorded to them must be balanced against other community interests and needs and the report notes, for instance, that the information privacy principles in the NZ Privacy Act 1993 contain exceptions allowing for non-compliance in certain circumstances. Most relevant to the privilege against self-incrimination, several of the NZ principles allow for non-compliance to avoid prejudice to the maintenance of the law, including the prevention, investigation, and detection of offences.

The report devotes an entire chapter to the Australian approach, which differs from NZ by requiring the courts to give a person who makes self-incriminating disclosures in proceedings a certificate containing a use and use fruits immunity. The Commission is seeking submissions on whether the Australian approach should be followed as well as submissions on all other aspects of the review.

The Law Commission's preliminary paper 25, Privilege against Self-incrimination (September 1996), can be obtained from P O Box 2590, Wellington, NZ or requested by e-mail: [e-mail]

Blair Stewart.