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Right‑wing ministers are waging a campaign to erase Māori health equity by tearing out its very foundations. ACT’s Todd Stephenson dismisses Treaty‑based nursing standards as “off‑track distractions” and insists nurses only need “skill and a kind heart,” despite clear evidence that cultural competence saves lives. 

Health Minister Simeon Brown’s funding cuts, hiring freeze and “rightsizing” of hospitals have gutted kaiāwhina and other vital support roles that communities rely on. It’s indefensible to scrap proven Whānau Ora initiatives, like the Winter Preparedness vaccination programme while underperforming mainstream services such as Plunket continue.

Rather than bolster Whānau Ora’s decade‑proven model, that serviced at least 4 million whānau, Māori Development Minister Tama Potaka defended re-tendering that puts hundreds of community jobs, and hard work they did on the chopping block.

“By pretending colonisation never happened and framing equity as separatism, this government is abandoning its Treaty obligations and sacrificing our whānau and the future of Māori,” said Te Pāti Māori Co‑leader and Health spokesperson Debbie Ngarewa‑Packer, “we will not stand by as essential safeguards are stripped away.”

The Government must stop weaponising culture-war rhetoric against Māori and stop hiding behind the fact, they have no solutions to offer to the ongoing causes of inequity in Aotearoa.

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In this decision, the Supreme Court clarified the law relating to sections 125 and 126 of the Crimes Act 1961, relating to indecent acts.

On 23 January 2016, an off-duty police officer observed Mr Rowe taking photos with a zoom lens of three bikini-clad teenage girls at Kaiteriteri beach near Nelson. The girls were thirty metres away from Mr Rowe and appeared to be unaware that he was photographing them.

Mr Rowe was later charged with doing an indecent act with intent to insult, contrary to section 126. The charge related to five photos, in one, the girls appeared to be posing. The police officer found that Mr Rowe had three electronic devices with an extensive number of photos of young girls on the devices. No objectionable material was found on the devices.

Mr Rowe had been given a trespass notice from the same beach in 2012 for taking photos of young girls.

He believed that it was permissible for him to take the photos and he referred to the Police website, which stated that it was “generally lawful to take photographs of people in public places without their consent” and that it was “permissible to take photographs “of people where there is no expectation of privacy, such as a beach”.

Mr Rowe was found guilty at a trial by jury in the Nelson District Court. He appealed to the Court of Appeal, which upheld the conviction.

Court of Appeal

The Court of Appeal agreed with the trial judge that the jury should consider Mr Rowe’s intention to “insult the dignity of the girls in the photos, their right to modesty or privacy” by taking these photos “at their age and in those general circumstances.” It considered that the taking of a photograph could amount to an indecent act.

Supreme Court approach

The Supreme Court disagreed with the approach of the Court of Appeal. It looked at the statutory history and framework of sections 125 and 126 and previous cases from New Zealand and overseas.

125 Indecent act in public place

(1)   Every one is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.

(2)   It is a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed. 

126 Indecent act with intent to insult or offend

Everyone is liable to imprisonment for a term not exceeding 2 years who with intent to insult or offend any person does any indecent act in any place

Indecent Act

According to the Supreme Court, sections 125 and 126 are primarily about exhibitionism as understood broadly – or “display by a person to someone else”. The Hon Justice Ellen France outlined that the Crown must prove two elements to establish an offence under section 126: first, the doing of an indecent act, which is an objective test and second, an intention to insult or offend, which is a subjective question.

The Hon Justice Young opined that the most important consideration is how third parties who witness the behaviour in question would react.

In R v Annas, the Court of Appeal considered that the immoral purposes of the photographer could make indecent what was otherwise not an indecent photograph. The Supreme Court did not uphold this approach. In its view, only focusing on the surrounding circumstances to show that an act is indecent creates a situation where the conduct is disassociated with the core concept of an indecent act, which is central to both sections 125 and 126.

The Supreme Court found that neither the subject matter nor the photos taken by Mr Rowe were indecent and noted that there was no exhibitionistic behaviour. Justice Young confirmed that “s 126 must be confined to conduct intended by the defendant to be seen by someone and to result in that person being insulted or offended”. He agreed with Judge Zohrab, the trial judge, that the appellants’ actions were “creepy” but noted that the issue was whether he had breached criminal law.

After examining the case law and statutory scheme of sections 125 and 126, the Supreme Court decided that section 126 did not apply to the facts of this case. It noted that the only matters relied on to criminalise Mr Rowe’s conduct were factors such as his motive and purpose. In its view, to apply section 126 in a case like this would create uncertainty about how the law should be applied.

Intention to Insult

Since the Supreme Court found that Mr Rowe’s actions were not an indecent act, it did not need to address the issue of whether there was an intention to insult. But, in any case, the Court stated that since the images themselves were not indecent, it did not consider that it was possible to prove an intention to insult beyond reasonable doubt.

Website

The Court decided that since it found there was not enough evidence to constitute the offence, it was not necessary to look into Mr Rowe’s reliance on the statement on the police website. 

Decision

The Appeal was allowed and Mr Rowe’s conviction was quashed. The Court did not order retrial as it found that there was insufficient evidence to constitute the offence.

Image credit: Man taking mirror shot – Creative Commons licence via Pexels.

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Generally the Privacy Act doesn’t apply to deceased people. This is because the Privacy Act protects the rights of “individuals”, and section 2 of the Act defines an individual as a “natural person, other than a deceased person”.

In order for our Office to accept a complaint, it needs to come from the affected individual. The dead cannot complain and we cannot accept a complaint on behalf of a deceased relative or partner.

There are variations to that general rule. In some circumstances, if you are the executor or administrator of the estate, you have the right to request your relative’s medical notes as their representative. We deal with a few complaints from surviving relatives who are seeking access to the medical information of a deceased relative or partner.

There are also other laws such as the Official Information Act (for public sector agencies), the Coroners Act, the Births, Deaths, Marriages and Relationships Registration Act, and rule 11 of the Health Information Privacy Code (HIPC) also allow the disclosure of information about deceased people.

Mixed information

But sometimes it will be inappropriate to release the personal information of the dead. This can be further complicated if the information is mixed and contains personal information about the requestor.

A common example is people who are requesting historic information about themselves as a child that may also contain intimate details about their deceased parents. These cases will involve balancing the rights of the person requesting their own information, and the privacy rights of the third parties in the information. The Official Information Act will involve a slightly different approach, including a consideration of the public interest.    

At some point, information becomes historic, so it would probably be ridiculous to refuse requests about genealogy information about, say, 1860s immigrants because of “privacy”.

Withholding grounds

The Privacy Act recognises that there may be occasions when the information about a dead person needs to be withheld under a withholding ground. In particular, if the disclosure would be the unwarranted disclosure of the affairs of another individual, or of a deceased individual.

Some information is inherently sensitive, for example mental or sexual health information. It could be unfair to release such information to those who are just curious and have no good reason to see it. In addition, if known, the wishes of the deceased person will be important to consider, although not necessarily determinative in all cases. 

To be clear, the right of individuals to request information about themselves is strong. The balancing exercise needs to be approached sensibly, thoughtfully, and on a case-by-case basis considering the full context of the request. Just because somebody else is mentioned on a page, does not mean you should withhold the whole page. The passage of time, and the fact the third parties are deceased will usually diminish the privacy interest, and should tilt the balance towards disclosure.

So privacy can extend beyond the grave. It can raise some interesting questions, and these need to be considered in a responsible way.

Image credit: Old pointed tombstone – Creative Commons licence via Pixabay.

complaints, health, Health Information Privacy Code

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A recent privacy case shows it is in nobody’s interests to waste the Human Rights Review Tribunal’s time.

After filing her original claim in 2016, the plaintiff made a number of subsequent applications to the Tribunal on various matters. At one juncture, the Tribunal directed her not to file any more applications without leave – and yet she continued to do so.

A week before the Tribunal hearing, the plaintiff made an application seeking an adjournment because her lawyer would be unavailable on the day, plus she wanted to file new proceedings that expanded her original privacy claim.

Complaint to Privacy Commissioner

Before her case (NZHRRT25) was put to the Tribunal, our office investigated the plaintiff’s complaint. We found there had been no breach of principle 6 or section 40 of the Act, and that no information had been withheld from her. As is our usual process, we issued a certificate of investigation to the plaintiff. The plaintiff then exercised her right to take her case to the Tribunal.

If we have not investigated an aspect of a complaint, the plaintiff cannot bring that aspect to the Tribunal. Just because the plaintiff raised something in his or her complaint (or would have liked to) does not mean the Tribunal can consider it. Some of the plaintiff’s applications to the Tribunal fell within this category.

Adjournment declined

The Tribunal declined the plaintiff’s application for an adjournment. It noted in its decision that because of the resource pressures upon the Tribunal and the long delays that litigants endure waiting for hearings, applications for adjournments shortly before hearings are due to begin require careful consideration.

The Tribunal’s Co-Chairperson noted: “While the assistance of legal counsel at a hearing is greatly valued, it is the norm in the Tribunal for litigants to be self-represented. The Tribunal’s proceedings are flexible and relatively informal and able to accommodate self-representation.”

On the matter of the plaintiff’s wish to amend her claim, the Co-Chairperson said:

“An amended claim in the terms proposed would necessitate essentially starting again with proceedings … an amended reply would be required, further discovery, amended briefs of evidence etc. Given the length of time the claim … has been before the Tribunal and the fact that the hearing is but two working days away, I am not persuaded that it is fair of reasonable to grant an adjournment for this purpose.”

The hearing

At the hearing, after the plaintiff completed giving her evidence, the lawyer for the defendant sought to cross-examine the plaintiff. But the plaintiff refused to answer questions put to her by the lawyer. She then maintained and confirmed her refusal to do so, saying she had insufficient time to prepare for self-representation and that she believed she would not get a fair hearing without legal representation.

The Tribunal then considered an application by the defence to strike out the case. In its decision the Tribunal noted that the overall purpose of the provisions in the Evidence Act 2006 concerning cross-examination is to promote accurate fact finding by the court or tribunal and to ensure a fair hearing by both parties.

The Tribunal said the accounts of both the plaintiff and the defendant contradicted each other on significant matters, with the plaintiff alleging in strong terms that the defendant had lied, withheld information, and included “faked” information in his evidence.

The refusal to submit to cross examination undermined the fundamental principle of fairness, especially since the plaintiff was the only witness to give evidence in support of her case. The plaintiff’s refusal to allow herself to be cross-examined allowed the defendant “…no fair opportunity to test the veracity of her evidence. This was unfair and prejudicial to [the defendant] in light of the serious factual allegations made against him in [the plaintiff’s] evidence in chief.”

The Tribunal concluded the plaintiff’s refusal to be cross-examined effectively prevented it from fact-finding in this hearing and denied the defendant a right to be heard in defence of the allegations made against him. The evidence of the plaintiff could not be accepted and her steadfast refusal to be cross-examined meant the application to strike out the case was granted. 

Image credit: Great Auk via John J Audubon’s Birds of America

complaints, IPP6 – access, Human Rights Review Tribunal

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The following is a summary of a Human Rights Review Tribunal decision which has since been overturned by the High Court. You can read the High Court decision here [1 October 2018]. The Court of Appeal decision is here [10 November 2020].

In a recent decision, the Human Rights Review Tribunal had to decide whether the transfer of Kim Dotcom’s requests for personal information to the Attorney-General was permitted under section 39 of the Privacy Act and, if it was, whether there was a proper basis for the subsequent refusal of the requests.

In July 2015, Mr Dotcom requested all personal information about him (including information in his previous names) from nearly every government department. Nearly all the Crown agencies transferred their requests to the Attorney General. Mr Dotcom’s requests were refused under section 29(i)(j) of the Privacy Act on the basis that they were vexatious and, due to their broad scope, included information that was trivial.

Transfer of requests

The Crown argued that the Attorney-General was best placed to deal with the information requests in the context of ongoing litigation. However, in hearing the case, the Tribunal considered that section 39(b)(ii) did not allow information privacy requests to be transferred in the context of the Crown’s overall litigation strategy. It determined that the information in question was not more closely connected to the functions or activities of the Attorney-General.

The Tribunal referred to the October 2014 High Court decision Dotcom v USA, where Justice France noted that Mr Dotcom should seek his personal information from the relevant agencies rather than the extradition court.

Whether the requests were vexatious

In the Crown’s view, Mr Dotcom’s requests were intended to disrupt the extradition hearing. However, the Tribunal found Mr Dotcom to be a credible witness and rejected the idea that there was an ulterior purpose to his request.

The Tribunal found that s 29(i)(j) must be applied with caution, particularly when higher courts have directed Mr Dotcom to use the Privacy Act to seek his personal information.

The Tribunal noted that agencies are not well placed to determine whether a request is vexatious as they are not aware of the personal circumstances of the requester. In its view, it must be manifestly clear that the request is vexatious or the information requested is trivial.

Remedies

The remedies were:

• A declaration that there was an interference with Mr Dotcom’s privacy in transferring the requests to the Attorney-General and in refusing the requests on the grounds that they were vexatious.
• An order that the Crown agencies comply with Mr Dotcom’s requests from July 2015 subject to the Privacy Act.

Damages

1. Loss of a benefit

The Tribunal awarded Mr Dotcom $30,000 for loss of a benefit relating to his requests for personal information to multiple agencies in the context of his extradition litigation.

The Tribunal referred to Proceedings Commissioner v Health Waikato where the High Court took a serious view of a refusal to provide personal information in the context of litigation. It found that Mr Dotcom’s case was exceptional because he correctly believes that a wide range of government agencies have personal information about him and at least one agency (GCSB) has previously unlawfully collected information about him.

2. Loss of dignity or injury to feelings

The damages awarded for loss of dignity, or injury to feelings was $60,000.

The Tribunal accepted that Mr Dotcom had “clearly and unambiguously” established loss of dignity and injury to feelings, as defined in Hammond v Credit Union Baywide. It stated that anxiety and stress can amount to injury to feelings and this can be assumed or inferred.

The Tribunal considered Mr Dotcom’s loss of dignity and injury to feelings was substantial and noted the unfounded stigmatisation of his requests as vexatious and not genuine.

A more detailed summary of the decision on our website can be read here.

Image credit: Painted finch via John J Audubon’s Birds of America

IPP6 – access, Human Rights Review Tribunal

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R v Alsford is an important privacy decision. The Supreme Court has clarified the law in relation to voluntary requests for personal information by law enforcement agencies, and affirms the obligations and responsibilities of both the law enforcement requester and the responding agency.

The decision affirms the importance and policy of the Privacy Act, and its relationship with other relevant statutes, including the production order regime in the Search and Surveillance Act 2012, the test for the admissibility of evidence under section 30 of the Evidence Act 2006 and the test for an unreasonable search under section 21 of the New Zealand Bill of Rights Act 1990.

The Privacy Commissioner’s transparency reporting trial revealed confusion in the private sector about the lawful basis for law enforcement requests for personal information.

The Alsford case was a criminal pre-trial matter and it presented an opportunity for judicial clarification. The Privacy Commissioner was granted leave to be heard on the privacy issue. The Court’s decision was released in March 2017, subject to non-publication orders that have now been lifted.

The Court considered whether a production order should have been used to obtain power consumption data from electricity providers in an investigation of suspected cannabis cultivation, and whether the power consumption data was obtained in breach of privacy principle 11(e)(i) of the Privacy Act.

The Police made requests to three electricity providers for power consumption data from the defendant’s properties. All three companies disclosed the information sought under privacy principle 11(e)(i) of the Privacy Act. This manner of obtaining the power consumption information and its use to support subsequent production order and search warrant applications to uncover evidence of offending was one of the grounds of appeal.

The majority of the Supreme Court (4:1) affirmed the Police’s ability, in the circumstances and in the absence of a production order, to ask for power consumption information in the form of monthly aggregated data, despite finding that one of the three requests did not provide sufficient information to justify the resulting disclosure. That particular disclosure was therefore not justified in terms of principle 11(e) and, to that extent, there was a breach of the Privacy Act.

The decision also affirms that where the Police obtain information from service providers about customers on a voluntary basis, they must not infringe section 21 of the New Zealand Bill of Rights Act (the right to be secure against unreasonable search and seizure). 

The Supreme Court decision can be read here. 

Lastly, there is also the Privacy Commissioner’s Commentary on R v Alsford.

Image credit: Kōtuku – Department of Conservation – New Zealand Birds A-Z

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Source: NZ Music Month takes to the streets

The Government has agreed to reinstate a total ban on prisoner voting, Justice Minister Paul Goldsmith says.
“Cabinet’s decision will reverse the changes made by the previous government in 2020, which allowed prisoners serving sentences of less than three years to vote.
“Restoring prisoner voting was typical of the previous government’s soft-on-crime approach; we don’t agree with it.
“Citizenship brings rights and responsibilities. People who breach those responsibilities to the extent that they are sentenced to jail temporarily lose some of their rights, including the right to vote.
“The proposed change will establish a consistent approach to prisoner voting, regardless of the length of sentence.
“The Government is committed to restoring law and order, and part of the response is to place a greater emphasis on personal responsibility and accountability. 
“A total prison voting ban for all sentenced prisoners underlines the importance that New Zealanders afford to the rule of law, and the civic responsibility that goes hand-in-hand with the right to participate in our democracy through voting.
“The voting ban will be progressed as part of an electoral amendment bill announced in April and set for introduction later this year. 
“When prisoners have served their time, they will enjoy the full restoration of electoral rights. The Department of Corrections and the Electoral Commission currently coordinate to support prisoners with re-enrolment upon their release, and this work will continue.”
The ban will not be retrospective, meaning prisoners already serving sentences of less than three years at the time the ban comes into force before the 2026 General Election will retain the ability to vote. 
The voting ban will not apply to people detained on remand or serving sentences of home detention.

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The most common complaints we investigate relate to individuals trying to access their personal information. Some of these requests are “empty-your-pocket” requests to the agency – in other words, requests for all the information held about the person concerned by the agency.

The requester is well within their rights to do this. But throughout our investigations we have seen the full spectrum of responses from agencies to these types of requests: some deal with the requests comprehensively; others leave a lot to be desired. Included below are some observations from the access complaints we have assessed.

The legal position

Principle 6

Principle 6 of Privacy Act says that individuals are entitled to have access to their personal information held by an agency. An agency can withhold personal information if one of the withholding grounds listed in the Act applies.

Principle 6 is a strong legal right. There is no limitation upon the extent of personal information which a person can request from the agency. If an individual wants to request everything the agency holds about them, they are free to do so.

What to consider when responding to these requests

Everything means everything

If a requester asks for all information about themselves, the agency needs to assess all the information it holds about the requester – obvious, right? Yet often we see agencies that initially say they have released all information to the requester but, when prompted by our Office to conduct some follow-up enquiries, are later able to locate more information. This suggests that their initial searches were not as thorough as they could have been.

Many agencies will have a designated file (or files) for the individuals that they deal with. In most cases it will not be sufficient for the agency to simply release that file in response to a ‘capture-all’ request. A request for all information held by an agency would by extension include information not necessarily on the individual’s file. The agency should ensure it checks its records for information it holds outside that individual’s file. This includes searching emails, written notes, and even employee memories.

It is important to note that when our Office notifies an agency of a complaint, it then opens up that agency to litigation risk. If we are not able to resolve the matter during an investigation, the complainant is free to take the matter up in the Human Rights Review Tribunal. Therefore, it is best practice for an agency to respond as meticulously as it can when it receives a request for all information to reduce the likelihood of the requester making a complaint to our Office in the first place. Put simply: do it once and do it well.

Ask: why do they want this information?

From a legal perspective, principle 6 is generally not concerned with why an individual wants their information. A person’s motivation for requesting information is only relevant in limited circumstances (for instance, where the requests may reach the threshold for vexatiousness, which is a ground whereby an agency can refuse an access request).

But from a practical perspective, the question of why an individual wants specific information should be at the forefront of the agency’s mind. Rather than attempting to respond to requests blindly, we encourage agencies to try and work with the requester. Can the requester clarify or specify the information they are after? Can you get more details to understand the context of the request? Asking these questions can help agencies to locate the information requested, or even narrow down the scope of the request so it is not too burdensome or time-consuming to respond to.

Transparency around the agency and its decisions

In our experience, many people who make these all-encompassing requests do so because of their lack of knowledge or lack of trust with the agency. Commonly the request is triggered by an event or decision made by the agency that takes the individual by surprise. The individual becomes suspicious of what actions the agency might take in the future, or they speculate about what information the agency holds.

These requests can be taxing for agencies to process, and often the information is not that helpful for the individual in the context of their dispute. There’s a lesson in here for agencies to be as transparent as possible when it makes decisions affecting people.

Utilise our Office

Our investigation of complaints is retrospective by nature. When we investigate, we assess how an agency has already responded to an individual. But this doesn’t mean that we cannot help agencies before this stage. If you are uncertain about how to respond to a request, feel free to contact our Office in the first instance – we are here to help.

Image credit: Request – via Blue Diamond Gallery under Creative Commons Licence

IPP6 – access

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