The Office of the Privacy Commissioner (New Zealand) administers the Privacy Act 2020.Privacy Act 2020 The Privacy Commissioner is entrusted to protect personal information of New Zealanders in accordance with the Privacy Act. Current Privacy Commissioner, Michael Webster, began his role in July 2022.
The Privacy Commissioner oversees personal information held by agencies in both the public and private sectors.Privacy Act 1993, s 2(1)(a) in Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 58. This is achieved through monitoring compliance with the 13 Information Privacy Principles. Amid his varied responsibilities, the Commissioner administers a complaint system and issues Codes of Practice or rules for particular industries, contexts and sectors.Privacy Act 1993, ss 13(1AA)(d) and s46(1) in New Zealand Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 at [5.4]. Most cases involve investigation, conciliation and settlement.Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 51. Serious breaches are referred to the Human Rights Review Tribunal.Privacy Act 1993, s 77 in New Zealand Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 at [5.4]. The Commissioner inherently considers international obligations and worldwide developments in privacy protection.
History
The now repealed Privacy Commissioner Act 1991 established the role of the Privacy Commissioner. The Commissioner had a principal role in the development of the Privacy Bill 1993, which passed into law as the Privacy Act 1993 and established the revised Office of the Privacy Commissioner.Privacy Act 1993, Long Title and s 12 in Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 54.
In March 2018, the Privacy Bill was introduced to Parliament. The Bill was passed by New Zealand Parliament in June 2020 and the Privacy Act 2020 came into law on 1 December 2020. The Privacy Act 2020 significantly updates the 1993 Act. Many of the changes are based on recommendations from the New Zealand Law Commission's 2011 review of New Zealand's privacy laws.
List of privacy commissioners
The Office of Privacy Commissioner has been held by:Office of the Privacy Commissioner About Us: Introduction.. Retrieved 2 May 2014. Sir Bruce Slane, KNZM CBE (1993–2003) Dame Marie Shroff, DNZM CVO (2003 – February 2014) John Edwards (17 February 2014 – 31 December 2021) Michael Webster, CVO (since 5 July 2022)
Privacy Act 2020
The Privacy Act 2020 is primarily concerned with information privacy; other aspects of privacy are protected by the common law right to privacy in New Zealand. The Act controls the collection, use, disclosure, storage and granting of access to personal information by agencies.Office of the Privacy Commissioner Privacy Act & Codes: Introduction.. Retrieved 2 May 2014. Personal information covers any information about an identifiable natural person.Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 59.
The key changes in the Privacy Act 2020 include:
new criminal offences introduction of compliance orders binding access determinations controls on the disclosure of information overseas mandatory notification of harmful privacy breaches the law now explicitly applies to overseas-based entities that carry on business in New Zealand.
The Privacy Act was originally enacted in 1993 in an era of heightened national awareness for human rights, and sits alongside the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. The Privacy Act similarly addressed international concerns,Ursula Cheer and John Burrows Media Law in New Zealand at 374. acknowledging privacy obligations under the Universal Declaration of Human Rights,Universal Declaration of Human Rights 1949, Article 12. and the International Covenant on Civil and Political Rights.International Covenant on Civil and Political Rights 1976, Article 17.
The Privacy Act extended protection to "any person or body of persons whether corporate and unincorporate," in both the public and private sectors.Privacy Act 1993, s2(1)(a) in Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 58. Inclusion of the private sector was considered revolutionary. The Commissioner thus oversees government departments, companies, religious organisations, and schools.Office of the Privacy Commissioner Privacy Act & Codes: Introduction. Retrieved 2 May 2014. Some limited exemptions to the Privacy Act exist: the sovereign, the House of Representatives, courts and tribunals acting in judicial capacity, news media activities, and individuals holding personal information for private use.APEC Cooperation Arrangement for Cross-Border Privacy Enforcement Summary Statement of Privacy Enforcement Authority enforcement practices, policies and activities at 1.
The Information Privacy Principles (IPPs), monitored by the Commissioner, are based on guidelines established by the Organisation for Economic Co-operation and Development (OECD) in 1980.OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, Part II: Guidelines. The IPPs cover:Office of the Privacy Commissioner Privacy Acts & Codes: A Thumbnail Sketch of the Privacy Principles.. Retrieved 2 May 2014. Collection of personal information (principles 1 – 4); Storage and security of personal information (principle 5); Requests for access to and correction of personal information (principles 6 – 7); Accuracy of personal information (principle 8); Retention of personal information (principle 9); Use and disclosure of personal information (principles 10 – 11); Cross border disclosures (principle 12); and Using unique identifiers (principle 13).
In ANZ National Bank Ltd v Tower Insurance, the High Court held the privacy principles require that personal information can only be collected for "a lawful purpose and is necessary for that purpose."ANZ National Bank Ltd v Tower Insurance (2009) 15 ANZ Ins Cas 61-816 at . The principles do not outline their practical application, giving the Commissioner flexibility to deal with varying fact situations as they arise.Ursula Cheer and John Burrows Media Law in New Zealand at 375.
In exceptional circumstances, when the Privacy Commissioner is satisfied the public interest outweighs privacy protection, agencies can be authorised to use personal information in a manner that would usually breach the IPPs or other provisions under the Act.Office of the Privacy Commissioner Privacy Act & Codes: Introduction. Retrieved 2 May 2014.
Roles, functions and powers The Office of the Privacy Commissioner is an independent Crown entity, funded by the state but acts independently of government or Ministerial control.Office of the Privacy Commissioner About Us: Introduction.. Retrieved 2 May 2014. In addition to monitoring compliance with the IPPs and PRPPs, the Commissioner's roles are extensively outlined in Section 13 of the Privacy Act. The central focus is to better protect the privacy of individuals, and includes:Office of the Privacy Commissioner Statement of Intent 2012 – 2015 (2012) at 4 – 5; Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 63. Legislation and policy; reporting to the Prime Minister on "legislative, administrative, or other action," and examining proposed legislation involving the collection or disclosure of personal information; Compliance; auditing personal information held by agencies, investigating and reporting on complaints, and inquiring into possible infringements; Education and awareness; a user-friendly website, training workshops, and monitoring developments in data processing technologies; Monitoring government information matching programmes; Issuing Codes of Practice; which modify the privacy principles for different industries; Liaison and development with international counterparts; especially in the Asia-Pacific region; and Undertaking any other function, power or duty; conferred by the Privacy Act or any other enactment.
Functions listed elsewhere in the Act include consultation with the Ombudsman, Health and Disability Commissioner and the Inspector General of Intelligence and Security, and publishing personal information directories.Privacy Act 1993 ss 21, 36 and 117 – 177B in New Zealand Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 at [5.3]. The Commissioner is conferred functions in several other enactments, which can be categorised as:New Zealand Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (R123, 2011) at [5.6]. Complaints investigation; Scrutiny or approval of information disclosure arrangements; Consultation with other agencies; Codes of Practice; Information matching; and Advice on privacy impact assessments.
Complaints and decisions The Privacy Commissioner can investigate potential breaches of the IPPs, PRPPs, or other Privacy Act provisions, on his or her own initiative or on receipt of a complaint.Privacy Act 1993, ss 61 and 69(2) in Steven Penk and Rosemary Tobin Privacy Law in New Zealand at 63. The onus is on the complainant to establish that an agency's action both breached a privacy principle and caused harm.Privacy Act 1993, s 66(1) in New Zealand Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 at [6.3]. Harm can include financial loss, adverse effect on rights or interests, or a significant injury to feelings. Breaches of principles 6 and 7, the refusal to grant access to or allow correction of information, need not establish harm as these situations are considered interferences per se.Privacy Act 1993, s 66(2) in New Zealand Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 at [6.3]. The Commissioner can decide to take no action based on issues of time, triviality, bad faith, or if another course of action is more appropriate.
Should the Commissioner decide to pursue a complaint, his role is both investigatory and conciliatory. With this mediation rather than litigation focus, the Commissioner can call "compulsory mediation conferences," and seek a resolution agreement and assurance of non-recurrence.Ursula Cheer and John Burrows Media Law in New Zealand at 375. Both parties to a complaint must be informed of the commencement of proceedings and the result of an investigation. The Commissioner has no power to force compensation payments from an agency, dismiss an employee or prosecute anyone.Office of the Privacy Commissioner Your Privacy: How to Complain. Retrieved 2 May 2014.
In the 2019/2020 year, the Commissioner closed 769 investigation files. Outcomes mostly included information being released or partly released, followed by the giving of assurances, an apology, a change of policy, correction of information, and monetary payment. The majority of complaints involved a breach of the IPPs, ahead of the Health Information Privacy Code.Privacy Commissioner's Annual Report 2013 – A Year of Rapid Change at 24. The actions of government agencies, including education providers and local authorities, trigger most complaints, followed by health sector agencies.