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Privacy: Getting the Balance Right

MEDIA RELEASE 2 August 2011

Professor John Burrows QC Commissioner Law Commission

Embargoed until tabled in Parliament

Privacy: Getting the Balance Right

The Law Commission today completed its landmark review of privacy law with the publication of its final report, Review of the Privacy Act 1993.

The report, which calls for new powers for the Privacy Commissioner, is the fourth in the Commission’s four-stage review of New Zealand’s privacy laws.

“Privacy is vitally important for individuals and society”, said Law Commissioner Professor John Burrows. “Today’s rapid advances in technology pose increasing threats to it. Information about people can now be collected, stored and disseminated in ways once never dreamed of. We need to ensure that the law can protect against improper uses of these technological capabilities.”

Professor Burrows said the law also needed to strike the right balance between protecting people’s privacy and other important interests, such as health, safety and welfare; freedom of information; and efficiency and effectiveness of government and business.

The report released today focuses on the Privacy Act 1993. Overall, the Commission believes the main principles of the Act remain sound. Rather than setting strict rules, the Act is based on privacy principles that can be applied flexibly to suit an agency’s particular circumstances. The Commission supports this principles-based approach, which also allows the Act to remain relevant as technology changes.

“The Privacy Act is sometimes blamed when agencies withhold information that it would be beneficial to disclose”, Professor Burrows said. “But often in such cases the agencies are misinterpreting the Act or failing to take advantage of its flexibility. Occasionally they are even using the Act as a smokescreen because they simply do not want to release the information.”

The Commission thinks the Act could be improved in a number of areas. Among the key recommendations of the report are that:

• the Privacy Commissioner’s powers should be augmented by a new power to issue compliance notices, and, where there is a good reason for it, to require an audit of an agency’s information-handling practices;

• the complaints process under the Act should be streamlined in a number of respects, including giving the Privacy Commissioner the power to make binding decisions on complaints about people’s right to access their own personal information;

• agencies should be required to notify people when personal information held by an agency is lost or otherwise compromised (for example, through computer hacking), if the breach is sufficiently serious;

• there should be a new framework in the Act to allow the sharing of personal information between government agencies where it is in the public interest to do so, but with appropriate safeguards; and

• some exceptions to the privacy principles should be modified, for example to clarify that people can pass on information to an appropriate person where someone’s health is seriously at risk, or report suspected offending to the police.

“These changes would make the Act more effective in protecting people’s privacy in this fast-moving and unpredictable technological age”, Professor Burrows said.

“But the Commission also recognises the need to protect other interests. It is important to strike the right balance. For example, there are concerns that it is currently too difficult for government departments to share personal information, even

though it may be individually or socially useful to do so. The new information sharing mechanism would allow them to share personal information safely and transparently.”

The Commission’s review of the Privacy Act has been the last stage of a four-stage review of privacy law.

Stage 1 was an overview of privacy issues, while stage 2 looked at access to and use of information on public registers.

In stage 3 the Commission looked at the general civil and criminal law about invasion of privacy. A key recommendation in the stage 3 report was that the law concerning the use of surveillance devices needed to be strengthened and consolidated in a new Surveillance Devices Act. “We need better laws to stop people spying on each other”, said Professor Burrows, “and we hope the Government will take up our recommendations on surveillance.”

The Government will now consider the recommendations in all of the Law Commission’s privacy reports, and will respond to them in due course.

The report is available on the Commission’s website www.lawcom.govt.nz.


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