Donovan, Michelle --- "Privacy cases in the NZ Human Rights Review Tribunal" [2003] PrivLawPRpr 18; (2003) 10(1) Privacy Law and Policy Reporter 6

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Privacy cases in the NZ Human Rights Review Tribunal

Michelle Donovan

Cases: volume and type

The number of cases under the Privacy Act jurisdiction coming before New Zealand’s Human Rights Review Tribunal (previously named the Complaints Review Tribunal) remains consistent. In the period July 2001-June 2002, 22 complaints were taken, in comparison to 25 for the previous period. All cases in the 2001-02 period were taken by the complainant. While some of these have been the subject of investigation and opinion by the Privacy Commissioner, the bulk appear to be complaints where an investigation has been discontinued under the discretion provided in s 71 of the Privacy Act 1993 (NZ) (the Act).

The effect of this is that the parties’ cases are often ill defined in terms of the jurisdiction of the Tribunal, or the particular breaches of the Act/Code alleged. Recent cases have raised jurisdictional issues which have had to be resolved before any substantive issues could be addressed: O’Neill, Steele. Plaintiffs are understandably determined to bring the full range of their grievances against a defendant to the Tribunal for resolution, even where that grievance may not involve (or only involve in part) a breach of the Act.

The re-naming of the Complaints Review Tribunal to the Human Rights Review Tribunal may have compounded this difficulty, with plaintiffs believing that they are now able to bring any matter which they consider raises a breach of their ‘human rights’ to the Tribunal, irrespective of whether the matter has ever been dealt with by the appropriate Commission, and the fact that the matter has been brought under the Tribunal’s Privacy Act jurisdiction.

Procedure: striking out versus hearings

At the last Privacy Issues Forum, Bob Stevens reflected on the frequency with which the (then) Complaints Review Tribunal disposed of matters coming before it using the mechanism of striking out. He reported that of the 35 cases which had been taken before it in the period January 2000-October 2001 the Tribunal had struck out 23 without having held a hearing into the issues. Notably, all cases disposed of in this way had been brought under s 83 of the Act by the aggrieved individual.

That ‘practice’ has now ceased, with the last striking out occurring in September 2001 (Robertson v NZ Police). Although one case has been dismissed, this occurred only after a hearing had been held (CD).

The move to full hearings has led to an increase in the percentage of time expended by the Tribunal in dealing with cases under the Privacy Act jurisdiction. The greater numbers of hearings, the increasing complexity of the issues raised, the need to clarify jurisdiction and the move to reasoned decisions have all combined to increase the overall turnaround time for each case.

Having said that, parties appear to accept this extended timeframe as a concomitant of the careful approach demonstrated by the Tribunal both in ensuring the process is transparent and in dealing with matters brought before it.

The value of hearings in assisting the Tribunal to assess the facts and produce a decision should not be doubted.

• In Pointu the Tribunal was able to receive evidence on oath about the promise of confidentiality at the heart of the defendant’s withholding of information sought by the plaintiff, thus satisfying itself that the defendant had proven the ground relied upon.

• In Poysden the existence of an original set of minutes containing information sought by the plaintiff and withheld from him by the defendant (and which had also been concealed from the Commissioner during his investigation of the matter) was only revealed in the course of cross-examination of a witness.

• In Steele the Tribunal had the opportunity to assess the credibility of the defendant’s officer against the plaintiff’s witnesses in relation to the officer’s claim not to have disclosed personal information about the plaintiff in the course of a social function held in the plaintiff’s immediate neighbourhood.

• In CD it was only possible for the Tribunal to dismiss the proceedings having established from witnesses that there had not been a ‘use’ in breach of Rule 8 of the Code within the period covered by the Act.

Minutes and Decisions

The Tribunal’s recent Minutes and Decisions demonstrate a more fully reasoned basis for the rulings and decisions they contain. This is the case in respect of both preliminary as well as substantive matters: O’Neill, Steele, Plumtree, Parker, CD.

Of particular note is the work of the current Tribunal in providing detailed and reasoned statutory interpretation of ss 82 and 83 of the Act, which relate to its jurisdiction to hear proceedings (Steele), and the proper tests to be applied by it to the question of when an interference with the privacy of an individual can be said to have been established (Plumtree, Poysden). A detailed analysis of how s 66 of the Act is to be applied is currently awaited.

Such clarification from the Tribunal provides useful guidance for parties seeking to bring proceedings as well as for those defending them. In some instances once the position is drawn to the party’s attention the reasoning in the decisions has meant that they do not commence, or persist with, arguments on certain issues.

Quantum: damages and costs

The Tribunal has indicated it is prepared to hear arguments in support of increasing awards in this jurisdiction, in line with awards made by it in the Human Rights Act jurisdiction (Parker), and to make meaningful awards in appropriate cases (Steele).

In respect of costs, the Tribunal’s decision in W can be seen as the high water mark, and may in future be confined to its specific facts.

Name suppression

The Tribunal’s previous practice of providing name suppression on an almost automatic basis (often without having received an application from either of the parties) reflected the underlying interest generally understood to adhere to proceedings alleging a breach of the Privacy Act, and the peculiar tension which results from having to take a public action in order to defend a right to privacy.

It is interesting to note therefore that this practice of ‘automatic’ name suppression is unlikely to continue, and that parties seeking suppression will need to apply for a formal order, and advance grounds in support, in order to be certain of preserving their privacy. While this process has proven to be straightforward so far (CD, AB) it relies on parties appreciating the need to seek such an order. Unrepresented parties may be disadvantaged if they fail to understand the need to seek a suppression order.

Arguably, in view of the jurisdiction involved, the Tribunal should be alert to the potential for anomalies to arise in consequence of this approach: Parker.

It may also be necessary for parties to consider the need for interim orders in the pre-hearing phase if the case raises any jurisdictional issues warranting a Minute being written.

Ten years on in the Tribunal

It is in a sense disappointing that detailed analyses of many central sections of the Act are only now being produced, however better late than never. Although awards in the Tribunal under the Privacy Act jurisdiction have fallen behind those under the Human Rights Act, the wider impact of the Privacy Act and the value of the Tribunal in setting the parameters for privacy rights continues to be evident: CD, Steele.

An aggrieved individual’s ability to take a matter to the Tribunal themselves, and to receive a binding decision from an independent third party, is often critical to their ultimate understanding of the interests protected by the Act (or the Code). The decision of the Tribunal can often act as a ‘circuit-breaker’ between parties whose positions have hardened as a result of power imbalances or pre-existing bad relations between them: Plumtree, Poysden.

For agencies who are alleged to have interfered with an individual’s privacy a decision from an independent body following a hearing into the matter can serve its interests equally well — either because they have been vindicated (Young, Pointu, CD) or (if they are receptive) because they have been educated on their obligations under the Act/Code (Steele, Parker, Plumtree).

Both, however, are reliant on clear, reasoned decisions being provided. The decisions now being produced by the current Tribunal are welcome in that respect. However, the educative value of the Tribunal’s decisions is also dependent on those decisions being generally accessible. There may be a need for work to be done in this area, perhaps by way of a comprehensive publication covering all the jurisdictions handled by the Tribunal.

It is pleasing to note that, although the panel of lay persons continues to be maintained below strength, the current panel members’ engagement with the issues and parties during the hearings has become more evident in recent times, possibly reflecting the more inclusive style of the current chairman.

Finally, in view of the rising volume of cases coming before it (a trend which is likely to continue in the foreseeable future), the thoroughness of the decisions now being given, and the potential for possible conflicts of interest in individual cases (whether in relation to parties or witnesses), it may be timely to consider whether the appointment of a Deputy Chair is now warranted. l

Michelle Donovan, Office of the NZ Privacy Commissioner.

This paper was presented at the Privacy Issues Forum, Wellington NZ, April 2003 In the original paper the author notes that the summaries of the cases dealt with by the Human Rights Review Tribunal which were included in that paper are now included under ‘Cases and Complaints’ in this and following issues of PLPR. These summaries are intended to give a brief indication of the issues before the Tribunal and the Tribunal’s decisions on them. The purpose is to assist the discussion of the issues raised in the paper. The summaries are not intended as comprehensive analyses of the cases or the decisions. The reader is referred to the cases themselves for this — General Editor.