Taking privacy cases through the Human Rights Review Tribunal

Some observations on process and the roles of

the Privacy Commissioner and the Director of Human Rights

Proceedings

Bob Stevensbobstevens@slingshot.co.nz

Substantial merits

● HRA s.105● The Tribunal shall act according to equity,

good conscience, and the substantial merits of the case without regard to technicalities.

Tribunal regulates its own procedure

● HRA s. 104(5)● Subject to the provisions of this

Act and of any regulations made under this Act, the Tribunal may regulate its own procedure in such manner as it thinks fit and may prescribe or approve forms for the purposes of this Act.

Statement of Claim form

● ........● AND TAKE FURTHER NOTICE THAT at a

date and time to be fixed by the Chairperson of the Human Rights Review Tribunal the plaintiff will ask the Tribunal to make the following orders:

● ______________________________________________________________________________________________________...............

Statement of Claim form

● ……..● With reference to section 85 of the Privacy

Act, here set out the particular orders that you want the Tribunal to make. If you are claiming a sum of money, the amount must be specified, and the way in which the amount has been calculated must be clear. (Continue on another page if necessary).

Telephone Conferences

● The Tribunal makes regular use of telephone conferences with the Tribunal chairperson.

● Not just for ascertaining what pre-hearing steps might be required and consequent timetabling, but also for discussion to clarify the issues.

Right of Director to appear

● PA s.86● May appear and be heard, in person or by

counsel● Has the right to call evidence, and

examine, cross-examine, and re-examine witnesses

● Is not a party to the proceedings

Right of Privacy Commissioner to appear and be heard

● PA s. 86(5)● The Privacy Commissioner may appear

and be heard in any proceedings in which the Director .... would be entitled to appear and be heard under this section but declines to do so.

Discovery

● It is now common in the Tribunal for “informal discovery” to take place and for the parties to assemble an agreed bundle of documents for the hearing.

● The Tribunal has recently confirmed that discovery of the investigation file of the Privacy Commissioner (as a non-party) is prohibited by the Privacy Act’s secrecy provisions.

Evidence

● HRA s. 106● (1) The Tribunal may receive as evidence

any statement, document, information or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not it would be admissible in a court of law.

● (2) ….

Evidence (continued)

● (3) The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.

Briefs of evidence

● Normal to require parties to file briefs of evidence in advance of the hearing.

● Similarly, where legal argument is anticipated, parties are normally required to file written synopses of submissions in advance. Some such legal issues are determined by the Tribunal “on the papers”, with agreement of the parties.

Prohibition of publication

● HRA s.107(4) ● Where the Tribunal is satisfied that it is

desirable to do so, the Tribunal may, of its own motion or on the application of any party to the proceedings,-

● …:● make an order prohibiting the publication

of any report or account of the evidence or other proceedings:

Prohibition of publication (continued)

● In practice, the parties have to ask, and justify their request, and the most common form of order is to prohibit publication of the name (and other identifying details) of the plaintiff.

● Best to establish an exact format to protect identity.

Costs

● The practice (always subject to exception in the particular case) is to award costs against the unsuccessful party. Since 2003 an approximate guideline of some $1500 per day of hearing has been applied by the Tribunal.

Availability of decisions

● In addition to sending out the decisions to the parties, they are made available to established commentators. Decisions are available from the Tribunal upon request, may be reported by Lexis Nexis Privacy Law and Practice, and are accessible on the internet through:

● www.worldlii.org/int/special/privacy

Availability of the Tribunal’s file

● Tribunal NOT subject to the OIA, nor to the Privacy Act.

● Occasionally, and upon application by a party, the Tribunal has ordered that access to the Tribunal’s file is only to be given with leave of the Tribunal.

Any questions?

● Is there time?