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Public Law > Privacy + looks like some executive continued > Flashcards

Privacy + looks like some executive continued Flashcards

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1
Q

What is the key act for privacy?

A

Privacy Act 2020

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2
Q

What is the Privacy Act 2020’s purpose?

A

S 3 - To promote and protect individual privacy

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3
Q

How does s 3 PA 2020 outline how the purpose will be achieved?

A

By providing a framework for protection of personal information

AND

Giving effect to international privacy obligations

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4
Q

What is personal information?

A

Section 7
- information about an identifiable individual

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5
Q

What are the Information Privacy Principles?

A
  1. Agencies should only collect PI when necessary and for a lawful purpose
  2. PI should be collected directly from the individual concerned
  3. Agencies should inform individuals of the purpose for collection and their rights of access
  4. Collection of PI by Agencies must be by lawful and fair means
  5. Agencies shall store PI safely and securely
  6. Individuals have right to know whether the agency holds PI about them and right to access this
  7. Rights to correct PI that an agency holds about you
  8. Agencies to ensure PI is up to date & accurate before using or disclosing it
  9. PI not to be kept by Agency longer than necessary
  10. PI collected for one purpose must not be used for another
  11. PI can be disclosed only in limited circumstances (eg when authorised or anonymised)
  12. Agencies can only send PI to someone overseas if it will be protected in the country of destination
  13. Unique identifiers used only if necessary
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6
Q

How many information privacy principles are there?

A

13

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7
Q

Where is interference defined?

A

S 69

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8
Q

What is interference?

A

EITHER

A breach of IPPs (not 6 or 7) AND something else – effect on an individual.

OR

a refusal of a request under IPP 6 or 7 “without proper basis.”

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9
Q

Proceedings Commissioner v Police [2000]

A

Alleged breaches of IPP 5 and 11

Facts:
- PI relating to application by 3rd parties for protection order
- Woman in domestic violence relationship
- Known to her parents and police
- Concerned for her, they applied for a protection order on her behalf
- Would stop her partner coming near her or their home
- Police officer contacted a friend in media
- News story was printed about application
- Included PI about her
- Media followed and filmed Police Officer delivering protection order at the complainants home and serving it on the boyfriend
- Woman was not identifiable to the world at large but identifiable to those who knew her

Question:
- What amounts to disclosure of PI?
- Was PI disclosed?

Held:
Was it PI?
- She was not directly identified
- BUT does not need to directly identify her, can constructively identify her
Was the information disclosed?
- disclosure need not be in words or intended
Overall
- It was PI identifiable to others

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10
Q

Who investigates claims of breach of privacy?

A

The Privacy Commissioner - s 79

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11
Q

When can the privacy commissioner investigate?

A

Issues can be raised by complaint or by the privacy commissioner raises them themselves

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12
Q

At any time before, after or during an investigation, what must the privacy commissioner do?

A

Use best endevors to secure a settlement

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13
Q

Does the privacy commissioner need to hold herrings?

A

No, don’t need to a hearing and no one is entitled as of right to be heard - s 81

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14
Q

If the Commissioner decides a complaint has substance, what may they do?

A
  1. Refer the matter to the Director (HRRT)
    Usually if pretty serious, may end up with prosecution
  2. Make an access direction for personal information
    If complaint is about access denied
  3. Take any other action the Commissioner considers appropriate - ss 91, 92 and 94
    E.G. work with company to make sure it doesn’t happen again
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15
Q

What is the Human Rights Review Tribunal?

A

Looks at claims relating to breaches of the Human Rights Act 1993, Privacy Act 2020, Health and Disability Commissioner Act 1994

If the Commissioner refers a complaint/matter to the Director, Director may commence proceedings in the HRRT, s 97

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16
Q

What are the remedies in the HRRT?

A

s 102:
- declaration
- order
- damages - s 103

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17
Q

What damages can you get under the HRRT?

A

s 103
- expenses
- pecuniary loss
- loss of any benefit
- humiliation/loss of dignity/injury to feelings)

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18
Q

Kim Dotcom v Crown Law Office [2023] NZHC 3105

A

Facts:
- Kim Dotcom wanted info the govt had about him to use in an extradition proceeding
- Requests for PI refused.
- Claimed breach of IPP 6

History:
- Initially won claim: HRRT awarded damages.
- Appeals to HC by AG and CA by Dotcom.
- CA allowed the appeal, referred the question of damages back to the HRRT.
- HRRT declined damages.
- Dotcom’s appeal to the HC was dismissed (HC#2).
- Dotcom sought to appeal to the CA. - Leave is denied.
This case is decision on whether he can appeal to CA

Claims:
- Section 103(1)(c): loss of any benefit that “the aggrieved individual might reasonably have been expected to obtain but for the interference”

Held:
- HC#2: agreed loss of benefit can include loss of being able to use the information in extradition proceedings
BUT
- It is not enough just to plead the loss – Dotcom “had to show that the breach of privacy had caused him to lose a benefit” (but for)

19
Q

What are Notification and Compliance Notices?

A

Statutory duty on agencies to notify commissioner of breaches it is reasonable to believe have caused, or are likely to cause, serious harm (ss 112-115 and 118)
Commissioner can issue compliance notices to agencies they consider may have interfered with someone’s privacy (s 123)

20
Q

What type of entity is the privacy commissioner?

A

A crown entity - s 13.

21
Q

What are the functions of the Privacy Commissioner?

A

s 17 :
- Advise Ministers and “agencies” on privacy
- Promote understanding and acceptance of the IPPs
- Examine proposed legislation or government policy that may affect privacy;
- Inquire into matters including any law or government practice or procedure, if it appears that privacy is being infringed
- Investigating (or investigating complaints about) interferences with privacy

22
Q

What is an agency?

A

A public sector, govt department, school board of trustee, private sector, business etc… we focus on the public sector agencies

23
Q

What are the privacy comissioner’s duties under sections 20 and 21?

A
  1. Commissioner must act independently
  2. Commissioner must
    - have regard to the privacy interests of individuals alongside other human rights and interests
    - take account of NZ’s international obligations
    - take account of cultural perspectives on privacy
    - have regard to the IPPs.
24
Q

How does the cabinet manual 7.9-7.105 set out the making of regulations?

A
  1. Identify need
  2. Develop policy
  3. Consult (as required)
  4. Unless regulations are routine, submit policy and impact statement to cabinet for approval
  5. Drafting by parliamentary counsel
  6. Submit to Cabinet for approval
  7. Notification in the Gazette
  8. 28 day stand-down period
  9. Publication
25
Q

What are the pros of regulations?

A
  • relieve pressure on Parliament’s time, especially on technical matters
  • can be made quickly
  • facilitate flexibility and experimentation
  • provide powers to respond to emergencies including war and natural disasters
26
Q

What are the cons of regulations?

A
  • potential for abuse by the Executive (CM 40)
  • Henry VIII and Henry VIII clauses
  • Sir Robert Muldoon and the Economic Stabilisation Act
27
Q

What are Henry VIII clauses?

A

Henry VIII liked to intimidate parliament into giving him power, including powers to suspend or do something inconsistent with an act of parliament. This is a problem and we don’t like these types of clauses.

28
Q

What is an example in NZ of a Henry VIII clause?

A

Sir Robert Muldoon and the Economic Stabilisation Act

29
Q

What are the ways in which we can control the executive in exercising their powers?

A
  • Well defined limits to the delegation
  • Publication
  • Regulations review committee
  • Presentation to the House
  • Approval
  • Disallowance by Parliament
  • Judicial Review
30
Q

How do well defined limits control the executive?

A

We try to avoid vague or widely framed empowering provisions allowing defined legal limits to constrain the use of powers.

31
Q

How does publication control the executive?

A

Publication ensures that we know about the regulations and what they are.

32
Q

How does the regulations review committee control the executive?

A

Regulations MUST be presented to the house, the house able to disallow them.

33
Q

How does approval control the executive?

A

We sometimes require parliament to approve a regulation, typically for things with big consequences.
E.g. classification of drugs.

34
Q

How does Disallowance by Parliament control the executive?

A

Parliament can overthrow regulations if they are not ok.

35
Q

How does Judicial Review control the executive?

A

The courts have the ability to look at regulations, etc and say they are unlawful.

36
Q

What is the Regulations Review Tribunal?

A

A specialist select committee established in 1985.

37
Q

Who are members of the Regulations Review Tribunal?

A

No legal rules, but convention says membership must consist of 3 opposition MPs (convention says one of which is the chair) and 3 government MPs.
- 50:50 split with opposition chairing it.

38
Q

What do the Regulations Review Tribunal look into?

A

Functions (SO 326):
- examine all regulations made
- examine draft regulations
- examine regulation-making powers in Bills

39
Q

What can the Regulations Review Tribunal do?

A
  • can make a report
  • may report to house
40
Q

On what grounds may the Regulations Review Tribunal report a regulation to parliament?

A
  • Not consistent with the primary act
  • Trespasses unduly on personal rights and liberties
  • Weird/unexpected use of power
  • Unduly makes people’s rights and liberties dependent upon administrative decisions not subject to review on their merits
  • Excludes courts jurisdiction without authority
  • Contains too high level stuff
  • Retrospective without authority
  • Not consistent with procedures prescribed by other acts
  • any other reasons
41
Q

Is the Regulations Review Tribunal bound by its previous decisions?

A

No.

42
Q

What can the house do with regulations?

A

Legislation Act 2019:
- Disallowance (ss 115-120) (wholly or partly)
- Amend or repeal regulations

43
Q

What does disallowing a regulation do?

A
  • As if it has never been made
  • Anything it overruled springs back to life
44
Q

What happens if the Regulations Review Tribunal refer something to the House but the House doesn’t do anything?

A

If RRC refers it to the house and the house doesn’t do anything within 21 days, the legislation will be disallowed automatically

Public Law (12 decks)

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