Roth, Paul --- "Privacy Remedies under New Zealand Law - Part 4" [2004] PrivLawPRpr 24; (2004) 11(1) Privacy Law and Policy Reporter 25

• Privacy Remedies Under New Zealand Law-Part 4

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Privacy Remedies under New Zealand Law - Part 4

Paul Roth | University of Otago

This is the fourth and final part of Paul Roth’s systematic examination of remedial powers under New Zealand’s Privacy Act 1993. The previous parts are in (2003) 10(8) PLPR 153, (2004) 10(9) PLPR 174 and (2004) 10(10) PLPR 193 -General Editor

Order to remedy or redress harm (s 85(1)(d))

Section 38 (6) (d) of the 1977 Act is equivalent to s 86(2)(d) of the Human Rights Act 1993)

In that case, the Equal Opportunities Tribunal, the predecessor body to the Human Rights Review Tribunal, found that the appellant company breached s 15(1)(c) of the Human Rights Commission Act in that it had caused the complainant, an employee of one of company’s branch offices, to suffer detriment by reason of her sex in the course of her employment. Among the remedies granted by the Tribunal was an order requiring the appellant to implement an anti-sexual harassment policy at the branch office in conjunction with the Human Rights Commission and meet the Commission’s normal consultancy charges. The company appealed against this order on the basis that the Tribunal lacked the jurisdiction to make it because the order did not redress “any loss or damage suffered by the aggrieved person as a result of the breach”.

The High Court allowed the appeal on this point. The complainant had left her employment over four years before the matter was decided in the Tribunal. Accordingly, the order could not be seen as redressing any loss or damage suffered by her.

In Plumtree v Attorney-General on behalf of the New Zealand Defence Force (Decision No 10/02, HRRT 29/01, 2 October 2002), the Human Rights Review Tribunal ordered the defendant to correct the plaintiff’s personal information held by it. It is questionable, however, whether the Tribunal had the jurisdiction to make such an order. The order was made even though the Tribunal found that all of the information at issue in this case did not have any particular use except as an historical record of the plaintiff’s army service. The accuracy or otherwise of the information did not affect any entitlement or benefit of the plaintiff. The Tribunal found that the plaintiff’s army Certificate of Vaccination was wrong in referring to the administration of vaccinations in 1963 rather than in 1964. Moreover, the list of vaccinations in the plaintiff’s Unit Personal Record Card was incomplete; the full list was contained in his Certificate of Vaccination. In all other respects, however, the Tribunal found that there were no grounds to find that the plaintiff’s army records were inaccurate, incomplete, or misleading. The Tribunal ordered the army to (1) correct the plaintiff’s Unit Personnel Record Card by including a complete list of vaccinations, and (2) alter the plaintiff’s Certificate of Vaccination by changing date of the entry for vaccinations from 1963 to 1964. The Tribunal’s jurisdiction to make such order was doubtful, as principle 7(3) confers the discretion to correct (or else attach a statement of correction sought but not made) on the agency concerned, not the Tribunal. The relevant wording is as follows:

“Where an agency that holds personal information is not willing to correct that information in accordance with a request by the individual concerned, the agency shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the information, in such a manner that it will always be read with the information, any statement provided by that individual of the correction sought.”

Principle 7 recognises that agencies have a right not to correct information, but at the same time it provides that if an agency does exercise this right, then it must attach a statement of a correction sought but not made. It would therefore seem inconsistent with this statutory arrangement if the Tribunal could override this right by using its power under s 85(1)(d) to order an agency to correct information.

“Such other relief as the Tribunal thinks fit” (s 85(1)(e))

This provision has been used to apply for an apology from a defendant, as in L v N (1997) 3 HRNZ 721 (Decision No 11/97), where the Complaints Review Tribunal ordered that the defendant provide the plaintiff with a written apology, in addition to the payment of $20,000 compensation. Likewise, the defendant was ordered to write a letter of apology in W v Director-General of Social Welfare (Decision No 12/98, 21 August 1998) in addition to having to pay $1,000 compensation.

In NZ Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100; [1994] 2 ERNZ 140 (discussed above), the appellant challenged an order of the Equal Opportunities Tribunal that required the appellant to implement an anti-sexual harassment policy. The Court allowed the appeal on the issue that the Tribunal’s order did not constitute “other relief” in relation to the case. The Court held:

“As is clear from the plain meaning of the words ... whatever is ordered must still be a ‘remedy’ which can properly be described as ‘relief’. See Jowitt’s Dictionary of English Law (2nd ed, 1977) where the text reads at p 1534:

‘Every action (except actions for discovery and a few others) is instituted for the purpose of obtaining relief, that is, satisfaction for a past injury, or the prevention of a threatened injury, or the enforcement or protection of a right. Thus on the Chancery side a plaintiff usually claims not only a particular kind of relief (specific relief), but also general relief, by asking for such further or other relief as the nature of the case may require, and he may ask for alternative relief: that is, he may mention two kinds of relief, and ask for one of them, eg, either specific performance or damages.’” (p 109; p 149)

The Court went on to state:

“The type of relief envisaged under para (g), even allowing for a liberal and enabling interpretation, still falls to be decided within the context of the Act as a whole and in particular s38 which spells out the primary jurisdiction of the Tribunal. In my judgment, it is clear that the Tribunal has not been authorised to impose remedies or grant relief, which pursuant to s 37 of the Act, the parties might well agree to as a term of a negotiated settlement ....

It seems to me that if relief in the form of a mandatory injunction is outside the jurisdiction of the Tribunal pursuant to s38(6)(d) (bearing in mind the specific authority given to make a restraining order under s38(6)(b)), it cannot have been the intention of the Legislature then to throw the door wide open and allow an unrestricted jurisdiction pursuant to s38(6)(g).

Additionally, ‘relief’ as used in s38(6)(g) has much the same connotations as ‘redress’ in s 38(6)(d). I find myself unable to accept ... that obliging the appellant to put in place and pay for an antidiscrimination programme, the terms of which are to be dictated by the Human Rights Commission, over four years after the complainant ceased to be employed (she left in February 1989, the order was made in June of 1993) can properly be described as either a ‘remedy’ or ‘relief’ so far as she is concerned.” (p 109; pp 149 Ð 150)

The nature of the Tribunal’s discretion under the analogous provision in the Human Rights Act 1993[2] was discussed in BHP NZ Steel Ltd v O’Dea (1997) 4 HRNZ 456, which was an appeal from a Tribunal decision dealing with a complaint of dismissal for political opinions. The High Court stated obiter that the provision for the Tribunal’s discretion to grant “‘such other relief as it thinks fit’ is not a licence for the Tribunal to come in from left field and make any order it chooses without notice, or argument, or submission” (p 478). The Court went on to state:

“That catch-all [provision] must first of all be invoked by the party seeking relief .... This sort of catch-all provision is to deal with incidental and ancillary matters. It should not be interpreted as an open cheque to provide any relief which the Tribunal, after the hearing has concluded but before a decision is given, determines might be appropriate. The basic requirements of natural justice and fair hearing are not abrogated by such a provision.”

The Tribunal in that case had granted relief other than that sought by the plaintiff. The plaintiff sought reinstatement to his former position only. The Tribunal encouraged him to apply for other remedies, and to seek advice from the Proceedings Commissioner, neither of which the plaintiff had done. The Tribunal was unable to grant the relief sought by the plaintiff, and instead ordered the defendant to provide a written apology. The High Court, however, observed that the wording of s 86(1) of the HR Act (equivalent to s 84 of the Privacy Act) “suggests that the operative moving force for any remedy is the plaintiff, and what the plaintiff seeks” (p 477). Accordingly, the High Court found that the phrase “such other relief that the Tribunal thinks fit” refers to relief which the plaintiff explicitly seeks as a remedy. On the facts of this case, the relief sought by the plaintiff was not available in the circumstances. Therefore, “[n]o other relief could be granted by the Tribunal of its own volition” (p 478).

In W v P (Decision No 2/99, 16 February 1999), the Complaints Review Tribunal relied upon the New Zealand Van Lines Ltd v Proceedings Commissioner case in finding that it lacked the jurisdiction to order the defendant to attend a Privacy Act training programme.

Conclusion

Although the New Zealand Privacy Act provides for a variety of remedies in respect of infringements, it is not common for the Tribunal and Courts to have any need to award them. There are a number of reasons why this is the case, chief among these are that (1) cases generally tend to settle beforehand, and (2) most cases taken beyond the conciliation stage to the Tribunal and Courts tend to be of the weaker sort, since the complainants are normally left to pursue judicial remedies for themselves, the Director of Human Rights Proceedings generally being unwilling to bring proceedings in respect of them. If the remedies currently available did not exist, however, it is very unlikely that so many cases would settle before proceeding to a formal hearing. The various judicial remedies that are available thus can be described as functioning more often as an incentive to settle than as relief that is actually awarded in practice. Of the remedies that are awarded, compensation for humiliation, loss of dignity, and injury to feelings is by far the most common. This is not surprising for a jurisdiction that deals with privacy matters.

It is difficult to obtain information concerning settlements in the Privacy Act jurisdiction since such arrangements are, by their very nature, private. From anecdotal evidence, a good number of cases tend to go away more for lack of interest, a discouraging preliminary view from the Privacy Commissioner, or the existence of the queue, than because they have actually settled. Nevertheless, the information that is available concerning Privacy Act processes and remedies, and comparison of this with relevant aspects of the Ombudsman’s jurisdiction over access rights under the freedom of information statutes (both at present and before 1993, when the Ombudsmen had jurisdiction over personal information held by public sector agencies), is that the formal judicial processes in respect of data infringements currently supported by the State may be overly complex and costly in relation to the actual relief that is normally awarded in terms of the amount and frequency of awards.

To conclude, the examination in this paper of the New Zealand position concerning data infringement processes and remedies suggests that the following elements would be effective both in terms of cost and the administration of justice in any system of regulation:

Paul Roth

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