<&>Wellington Corpus of Spoken New Zealand English Version One <&>Copyright 1998 School of Linguistics & Applied Language Studies <&>Victoria University of Wellington <&>side two <&>5:23 what's it about what's the guts of this bill tut kathryn it's it's about the regulation and <.>the the regulation <.>and of the collection use storage and disclosure of personal information and as such it applies to both the public sector and the private sector but it's about er personal information or information about an individual <,> not companies is that a problem do you think it should <.>incl er cover companies as well <,,> i don't think that's er that is appropriate i mean data protection er legislation is aimed at the um the so called right of privacy <&>6:00 that individuals um believe they have and er as such um internationally it has only been <,> for er natural persons and that the right to information about companies is voc dealt with er elsewhere in er other legislation who does this bill who does it constrain <.>wes well as i said it's not only er government but in new zealand they've er taken a reasonably bold step compared to some of the trends overseas and they've also sought to incorporate the private sector it's not that er voc there's no legislation elsewhere covering private sector some countries have um tried to regulate um er companies and private organisations but voc usually data protection is thought of in the context <.>of of governments holding information about say you and i so <.>i <&>7:00 it will constrain er absolutely every <,> er organisation in new zealand that er uses data collects it in um compares data matches it um tut <,> processes it <,> whatever and this is what every other country in the world is doing this is something everyone else is doing as well as us the <.>wes the western countries are <,> we've got er australia um canada <,> the united states the united states as early as nineteen seventy four had a type of privacy legislation er the europeans definitely er right throughout the european community and the scandinavians as well um i believe er voc that the japanese have also um addressed the issue now what does it say <.>it <.>it's it's got fourteen major principles hasn't it <.>th that's correct <.>it <.>the the approach that's been taken um if i just voc mention that there are there are many different privacy regimes and and ways that you can approach the <&>8:00 problem er from er <.>ha registering er data banks or anybody who processes um tut er automatically processes information through to er the approach that's been taken in new zealand to have a set of principles or or guidelines and to then try and enshrine those in legislation but in a way that they're not um they're not directly enforceable at law but they are still er rather than just being voluntary codes they're actually in the statute so these principles are voc there are fourteen of them but er if i just voc recap briefly what they are <,> the first of all voc the collection of information <,> er about individuals should be kept to a minimum <,> and that minimum is what is necessary for the purpose for which you want the information <,> tut the other principles er concern <,> er most importantly that the collection of personal information has to be done with the knowledge and consent of <.>the of the individual concerned <&>9:00 <,> the information must be stored in a secure manner voc so there are rules about er the security and and and safeguard of the storage of the information the <.>in individual about whom the information is being collected must have a right to knock on the door and say what do you hold about me so they must have a right of access and of course if they find out that that er information is incorrect then they have a right to try and correct the <.>err erroneous information the personal information that's used must be accurate and relevant er you must try and if you're going to use information there's an obligation on you to go back and check that it is up to date and accurate and so on er very significantly especially in the private sector is the principle that you only use information for the purpose for which it is collected so if i obtain information <.>d say to do with a credit application and then i want to <&>10:00 use it for some other er aspect of my business then i must go back to the individual concerned and say er you know do you consent to that use tut and of course there are limits on the disclosure of personal information and those limits have certain exceptions to them so you've got the in the bill you've got these principles and then you'll have a whole um infrastructure as to er setting up a privacy commissioner to er monitor and promote those principles and then to investigate complaints er through to a remedy section with the human rights tribunal um voc significantly the matching of government voc er data by government um has a very <.>ho high profile in the bill er data matching voc as a general rule is is not permitted tut under this legislation but what government has done voc er in the context of the the budget and the need to um er <,> voc to try and cut down on er <&>11:00 fraud and social welfare abuse voc government has sought to legitimise the matching or comparing of inland revenue data with information held by social welfare and the a c c and so on tut so this legislation enables the government to match data yes certain within certain constraints for example um generally speaking you can't match and if you want to match data then er you would <.>have it's what's called an information matching programme and you would have to go to the privacy commissioner and er seek approval for that programme and there are certain um <.>h hoops that you'd have to jump through <.>t to prove that that programme er was er justifiable and was <.>si significantly important to <.>s society to to justify it and so on er however <.>in in the context of social welfare um there are specific er um provisions to amend the i r <&>12:00 d um legislation the income tax act and er um social welfare and a c c er legislation to <.>al to <.>l allow government to <,> carry out that function so this bill is doing quite the opposite to what <.>most many people would think i mean you'd think on the face of it there we here we have a bill that's going to STOP agencies from <.>ma matching information about you that's <{><[>correct <[>and yet it expressly allows it yes there is <.>a there's a contradiction in there but um tut voc it <.>s <,> <.>that that contradiction is because er the right to um <,> the right to control er information er for the so called public good um voc <,> namely trying to reduce the amount of fraud and so on has to be balanced against um the right of you and i not to have um information held in data banks and er er accumulated and and the <.>big the big <&>13:00 brother concept but i should also add that um it's not just a carte blanche on the part of government er <.>i <.>in in those areas of social welfare and and tax records there are a number of um mechanisms and and rules that have been put in place to try and <.>g um <,> exert some control over that <,> process now these fourteen principles you say they're NOT enforceable in LAW what's the POINT of them then they're not DIRECTLY enforceable er what is required er if <.>you <,> what they've done is they've taken this er set of guidelines and put it into the statute and then um they've said <,> if you breach one of those guidelines that's an interference with privacy with an individual's privacy but that interference would not allow you to jump into court and sue what you'd have to do is you have to take that event that intervention and put it with um tut a um a <&>14:00 TYPE of injury test it's not quite but <.>it the statute says you have to take the interference and <.>it that interference has to be er either wrong or um oppressive unjustified contrary to law and there are a number of those <{><[>er <[>has to be harmful in some way yes there are a number of those tests voc er written into the legislature in into the legislation and voc once you've got that then you can make a complaint to the commissioner and the <.>com commissioner if he upholds that complaint you will then have recourse to the human rights tribunal and um er er they can make er an order that will um er basically prevent the interference um by issuing a restraining order um they may award damages and there's a cap in the in the bill of fifty thousand dollars er <,> then the other of course <.>more very importantly for people <.>who who are alleging <&>15:00 that they've been harmed by the interference is the ability of the court <.>to of the tribunal rather to er order rectification of the problem what do you mean by that what would be an example <,,><&>3 er well perhaps there's an information practice that um er some aspect that is not being complied with in the procedure of the organisation gathering the information um that has led to it then i would imagine that the tribunal would be able to say um voc you know smarten up <{><[>your act <[>from NOW on don't do that <{><[>again <[>don't do that and perhaps there's been a decision that er has gone <.>a against the individual that um the tribunal could um seek um a review of that or voc you know it's all it's a bit nebulous in <.>a in a vacuum but it stops it from happening again that's the <.>p point of it well there is some there is redress in there but your original question is voc you know <&>16:00 what's the purpose of that and why how is it er you know why is it not enforceable well what the what the bill actually says is that these principles are not direct rights so there there is um an enforcement mechanism there but it's an indirect mechanism you've got to follow through this this train of events to get to your remedy and the the reason for that i think is because of the dilemma the draft has had between er enshrining these principles as absolute rights of privacy that that you and i could go and sue on er that would you know <.>p be the basis of a course of action er and that could be QUITE draconian and quite unworkable on the other hand if it's just held up there as nothing more than a guideline which is what we've already had for some time now we've had the o e c d guidelines <,> tut on er the control and the regulation of er the use of personal information then um voc people can ignore it of course so by trying to walk this <&>17:00 middle road the er the the the drafters have tried to get some kind of balance but that in turn has brings other problems we've been hearing about privacy legislation for YEARS now how long has it sort of been <.>ha around it's been around an awful long time um there's a er a united nations um <,> er covenant which goes back to nineteen sixty six er it really became um <,> tut er the thing of the moment internationally in nineteen eighty with the er o e c d er members signing guidelines that dealt with the um the protection of personal information overseas er as early as er nineteen eighty two the canadians brought in a er a privacy law before that er the americans were there almost a decade earlier nineteen seventy four with their legislation um the er the australians the united kingdom all in the <&>18:00 last decade but in new zealand er it really it the <.>the the interest in the consciousness raising about the the power of information started with the freedom of information movement which was in the late seventies <,> and privacy wasn't really talked about too much because you have certain common law um remedies if if you felt that you've been aggrieved with breach of confidence actions and and so on <,> so it's really the er the midnineteen eighties the the new zealanders' consciousness has been raised and er the government er became active in about nineteen eighty seven with the commissioning of a very good paper by tim mcbride looking at er <,> voc privacy regimes and what might be appropriate for new zealand er then it has sat with government for um all those years until now we have the introduction and i voc think <.>that <.>that the introduction <&>19:00 of this bill is er <,> its impetus is because of the government desire to er in the context of our most recent budget to um crack down on social welfare benefits and tax fraud and so on so it's been there hanging about <.>an and every now and <.>en then it <.>w um would be trotted out in the minister's er minister of justice's speeches er in the previous government and in this government and er it's one of those things which it's very convenient to have in the background because er i think voc the threat of privacy legislation hanging over people who really do need to get their act together um in er <,> voc did have a good side effect er in that or a good spinoff because <.>it it got people focusing <.>and and worrying about how draconian this legislation could be if it wanted to be and that they'd better start trying to do something to preempt it <&>19:57