Privacy inquiry irrelevant – Greens call for independent inquiry into Smith

The Prime Minister must stop hiding behind the Privacy Commissioner’s inquiry into a mass leak of ACC claimant details and order an independent inquiry into the behaviour of one of his most senior ministers.

The Privacy Commission specifically states on its website that MPs are exempted from the Privacy Act.

“It is impossible for the Commissioner to examine Dr Smith’s behaviour as part of her investigation into privacy breaches over the mass leak of ACC claimant documents,” Green Party ACC spokesperson Kevin Hague said.

“John Key must know this.”

The Green Party has instead asked for the Auditor General to inquire into Smiths’ involvement.

Under “Exemptions from the Act” on the Commissioner’s website it states:

Organisations that aren't covered by the Privacy Act include:

• Members of Parliament, when they are acting as MPs. It's up to Parliament or political parties to discipline MPs for breaches of privacy.”

“John Key should immediately stand Nick Smith down from his existing ministerial portfolios and order an independent investigation into his involvement in a friend’s ACC dispute, while he was Minister of ACC,” Mr Hague said.

“By writing a reference for his friend on ministerial letterhead, to help her in her dispute with ACC, Smith was clearly using his position to try to influence the outcome. This is way out of line with his ministerial responsibilities as outlined in the cabinet manual.

“On the face of it, this looks like a sacking offence and at the very least it raises serious questions about how Smith uses his power and influence as a minister.

“But in the interests of natural justice Dr Smith should be stood down till all issues have been independently examined.

“Even if Dr Smith was accused of a privacy breach – which he is not – the Privacy Commissioner would not have the power to investigate.

“To suggest she can decide whether he has abused his ministerial influence, is as ridiculous as asking the Commissioner for Children to investigate effluent run-off from farms,” Mr Hague said.

Attached is a copy of the functions of the Commissioner as outlined in the Privacy Act.

ENDS

Functions of Commissioner
• (1) The functions of the Commissioner shall be—
o (a) to promote, by education and publicity, an understanding and acceptance of the information privacy principles and of the objects of those principles:
o (b) when requested to do so by an agency, to conduct an audit of personal information maintained by that agency for the purpose of ascertaining whether or not the information is maintained according to the information privacy principles:
o (c) to monitor the use of unique identifiers, and to report to the Prime Minister from time to time on the results of that monitoring, including any recommendation relating to the need for, or desirability of taking, legislative, administrative, or other action to give protection, or better protection, to the privacy of the individual:
o (d) to maintain, and to publish, in accordance with section 21, directories of personal information:
o (e) to monitor compliance with the public register privacy principles, to review those principles from time to time with particular regard to the Council of Europe Recommendations on Communication to Third Parties of Personal Data Held by Public Bodies (Recommendation R (91) 10), and to report to the responsible Minister from time to time on the need for or desirability of amending those principles:
o (f) to examine any proposed legislation that makes provision for—
(i) the collection of personal information by any public sector agency; or
(ii) the disclosure of personal information by one public sector agency to any other public sector agency,—
or both; to have particular regard, in the course of that examination, to the matters set out in section 98, in any case where the Commissioner considers that the information might be used for the purposes of an information matching programme; and to report to the responsible Minister the results of that examination:
o (g) for the purpose of promoting the protection of individual privacy, to undertake educational programmes on the Commissioner's own behalf or in co-operation with other persons or authorities acting on behalf of the Commissioner:
o (h) to make public statements in relation to any matter affecting the privacy of the individual or of any class of individuals:
o (i) to receive and invite representations from members of the public on any matter affecting the privacy of the individual:
o (j) to consult and co-operate with other persons and bodies concerned with the privacy of the individual:
o (k) to make suggestions to any person in relation to any matter that concerns the need for, or the desirability of, action by that person in the interests of the privacy of the individual:
o (l) to provide advice (with or without a request) to a Minister or an agency on any matter relevant to the operation of this Act:
o (m) to inquire generally into any matter, including any enactment or law, or any practice, or procedure, whether governmental or non-governmental, or any technical development, if it appears to the Commissioner that the privacy of the individual is being, or may be, infringed thereby:
o (n) to undertake research into, and to monitor developments in, data processing and computer technology to ensure that any adverse effects of such developments on the privacy of individuals are minimised, and to report to the responsible Minister the results of such research and monitoring:
o (o) to examine any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commissioner considers may affect the privacy of individuals, and to report to the responsible Minister the results of that examination:
o (p) to report (with or without request) to the Prime Minister from time to time on any matter affecting the privacy of the individual, including the need for, or desirability of, taking legislative, administrative, or other action to give protection or better protection to the privacy of the individual:
o (q) to report to the Prime Minister from time to time on the desirability of the acceptance, by New Zealand, of any international instrument relating to the privacy of the individual:
o (r) to report to the Prime Minister on any other matter relating to privacy that, in the Commissioner's opinion, should be drawn to the Prime Minister's attention:
o (s) to gather such information as in the Commissioner's opinion will assist the Commissioner in carrying out the Commissioner's functions under this Act:
o (t) to do anything incidental or conducive to the performance of any of the preceding functions:
o (u) to exercise and perform such other functions, powers, and duties as are conferred or imposed on the Commissioner by or under this Act or any other enactment.
(1A) Except as expressly provided otherwise in this or another Act, the Commissioner must act independently in performing his or her statutory functions and duties, and exercising his or her statutory powers, under—
o (a) this Act; and
o (b) any other Act that expressly provides for the functions, powers, or duties of the Commissioner (other than the Crown Entities Act 2004).
(2) The Commissioner may from time to time, in the public interest or in the interests of any person or body of persons, publish reports relating generally to the exercise of the Commissioner's functions under this Act or to any case or cases investigated by the Commissioner, whether or not the matters to be dealt with in any such report have been the subject of a report to the responsible Minister or the Prime Minister.
Compare: 1991 No 126 s 5
Section 13(1A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

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