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Challenging technologies: Perspectives from the Privacy Commissioner 

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Technology developments can be challenging to privacy laws. We all know our phones are powerhouses of data collection, and that our data is the key asset for big tech. But we don’t always know what data is being collected, nor how it is being used.

Recently in Australia the Federal Court found that Google misrepresented how Android OS collected, stored and used personally identifiable location data. As the Australian Competition and Consumer Commission Chair Rod Sims said, “This is an important victory for consumers, especially anyone concerned about their privacy online, as the Court’s decision sends a strong message to Google and others that big businesses must not mislead their customers.” Privacy and consumer laws can bite back.

While we know phones are collecting our data, other new technologies and practices are pushing the boundaries of how we expect our personal information to be treated. One of the key functions of the Privacy Commissioner is to monitor and examine the impact that technology has on privacy. The Privacy Commissioner recently discussed this connection between technology and privacy for a chapter in a book celebrating 60 years of IT Professionals in NZ.

The development of privacy is often traced back to the seminal article in 1890 by Warren and Brandeis. Core to the writing of the article was their concern that the ‘recent invention’ of the photographic camera would destroy privacy among Boston socialites:

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops” …The press is overstepping in every direction the obvious bounds of propriety and of decency.

By the 1970s New Zealand society was producing a large and continuous flow of information, which was only managed through the use of computers. This radically changed the concept of individual privacy, raising legitimate concerns that an individual’s personal affairs were moving out of their control. This concern was focused in New Zealand on the Wanganui Computer, a mainframe computer on which Police, Justice and Transport shared information, raising the spectre of “Big Brother”. The legal response was to pass a very proscriptive and restrictive law called the Wanganui Computer Centre Act 1976, to ensure that the system made no unwarranted intrusion upon the privacy of individuals.

Technology has again changed considerably since the 1970s, and the place of privacy in our society is also changing.

One of the real shifts that we have seen is a move away from a binary concept of privacy, being it’s either private or it’s not. The old common law concept is that if it is in the public domain then it can’t be private; if you are walking down the street you have no expectation of privacy. That has been reflected in our data protection laws, and the Privacy Act has a number of exceptions to the restrictions of information, including being publicly available information.

But some of the new technologies, such as biometrics, really challenge that. Is your face publicly available information just because you happen to be wearing it when you are out in the street? Is that enough to say that you no longer have any right or expectation that those very unique facial measurements that distinguish you from everybody else can’t be harvested and put to use for a range of benign or malign purposes? These are interesting questions.

In Challenging technologies: Perspectives from the Privacy Commissioner the Commissioner discusses privacy as a public good, the NZ COVID tracer app, the concept of open data, anonymisation and differential privacy, Māori approaches to privacy, cultural and international perspectives, and the role of IT professionals. The book celebrates 60 years of technology in New Zealand.

This book is available in paper or digital versions:

Paperback here

Ebook on Kindle, Apple Books, Kobo, Booktopia, Barnes & Noble, Google Play Books, Scribd, Smashwords

You can also read it online here: https://history.itp.nz/

Edwards, J. & Bennett, L. (2021) Challenging Technologies: Perspectives from the Privacy Commissioner. In J. Toland (Ed.), From Yesterday to Tomorrow: 60 Years of Tech in New Zealand, IT Professionals New Zealand

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Awarding damages for emotional harm

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Under the Privacy Act, the Human Rights Review Tribunal can award damages for emotional harm caused by a privacy breach. Damages are compensatory rather than punitive; the goal is to compensate individuals for specific harm rather than punish a defendant’s bad behaviour.

Calculating damages for emotional harm is not an exact science, especially when there has been no quantifiable financial loss. We have identified some factors contributing to the different amounts awarded for emotional harm in recent cases, which are helpful to consider when balancing the risks and benefits of taking your complaint to the Tribunal.

What damages can the Tribunal award?

The Tribunal can award damages if, as a result of a privacy breach, the complainant has:

  • suffered a pecuniary loss
  • reasonably incurred expenses
  • lost a benefit that they might reasonably have expected, or
  • suffered humiliation, loss of dignity, and injury to feelings.

The Tribunal has provided some useful guidance on quantifying emotional harm caused by a privacy breach. There are three broad bands of emotional harm: less serious breaches can see up to $10,000, more serious awards have ranged from $10,000 to $50,000, and the most serious awards have been more than $50,000[1].

The Tribunal occasionally awards high amounts for emotional harm – $98,000 in Hammond v Credit Union Baywide and $70,000 in Director of Human Rights Proceedings v Slater (opens to PDF, 717KB) – but the majority of successful claims are in the $5,000 to $25,000 range. (See the table of damages awarded on the Tribunal’s website.)

Linking harm to the breach

Because damages are compensatory, you are less likely to be awarded damages if you cannot show that your harm was a direct result of the privacy breach. This was seen in Wise v Commissioner of Police (opens to PDF, 169KB). The Tribunal found an interference with Ms Wise’s privacy, but she was unable to link her stress to the breach and there was no basis to justify damages for emotional harm.

While the breach does not need to be the sole cause of harm, the Tribunal takes care not to conflate emotional harm arising from a privacy breach with emotional harm caused by other issues. This is particularly important when there is a break down in the relationship between the parties, or where there are wider issues. For example, in Cook v Manawatu Community Law Centre (opens to PDF, 261KB) the Tribunal found the Centre had breached Ms Cook’s privacy when collecting sensitive financial information about her from WINZ. The Centre argued that any stress and anxiety suffered was caused by an ongoing employment dispute, rather than the breach of privacy. The Tribunal acknowledged there were other factors involved, but Ms Cook was able to prove the privacy breach was a material cause of her stress. The Tribunal awarded Ms Cook $6,000, taking care to separate the emotional harm caused by the privacy breach from the harm caused by the employment dispute.

Severity of the harm

An award will likely be higher depending on the severity of the breach and the amount of harm caused.

In Holmes v Housing New Zealand Corporation, the Tribunal awarded Mr Holmes only $400 when, having taken a “possibly over generous view of the facts,” it found he experienced a limited degree of injury to feelings. This can be contrasted with Green v EIT [2020] NZHRRT 24 (opens to PDF, 985KB) in which Mrs Green and her son were awarded $25,000 each after a staff member at the son’s school disclosed a significant amount of personal information about them to the courts. The Tribunal noted this was a “betrayal of trust and extreme embarrassment.” The son was particularly vulnerable because of his disabilities, and the Greens had been encouraged to trust the staff and share intimate details about the son’s health and relationships.

The specific circumstances of each case will be considered when looking at the severity of harm. This is one of the reasons it is difficult to quantify emotional harm.

Conduct of the agency

In Hammond, the Tribunal noted the conduct of the defendant can exacerbate or mitigate the emotional harm caused, and therefore is a relevant factor in the assessment of damages[2].

One mitigating factor the Tribunal considers is the presence of an apology.

In Williams v ACC, ACC accepted they had interfered with Mr Williams’ privacy, by relying on inaccurate information when stopping his weekly compensation payments. Soon after receiving a complaint from Mr Williams, ACC acknowledged the breach, reinstated his payments and provided a written apology. At the Tribunal, Mr Williams made a claim for $10,000 for the emotional harm caused. The Tribunal considered the timely apology to have lessened the harm and awarded Mr Williams $7,500, noting the speed with which the interference was recognised and remedied by ACC.

However, an apology will not always be enough. In Vivash v ACC, Mr Vivash was awarded $40,000 for injury to feelings, plus an additional $10,000 for other harm, for the destruction of his file. While ACC apologised to Mr Vivash, it had been 12 years since the breach and the Tribunal noted a “belated eleventh-hour acceptance by ACC of the breach can be given little weight.”

It is worth noting it is not only an apology the Tribunal will consider. The conduct of an agency throughout the breach and complaint process may be relevant when calculating damages.

Conduct of the individual

The Tribunal will also consider the conduct of the complainant when assessing the harm caused by a breach.

In Deeming v Whangarei District Council, Mr Deeming made a complaint to the Council’s Mayor about his local rugby club. A Councillor then disclosed the fact he made this complaint to the club president. Mr Deeming was banned from the club and experienced significant loss of dignity and injury to feelings. However, Mr Deeming delayed bringing the case to the Tribunal for nearly five years after our Office’s investigation. The Tribunals’ decision also acknowledges that Mr Deeming disclosed similar information to the club himself. Consequently, he was awarded $2,000 in damages, significantly less than the $40,000 he claimed.

Although the Privacy Act 2020 has put a time limit of six months on making a complaint to the Tribunal following an OPC investigation, complainants should also consider their conduct when making claims for damages under the Privacy Act.

Risks of going to the Tribunal

There are some risks associated with going to the Tribunal, including the length of time involved, the fact the decisions are public, and the possibility that the Tribunal can award costs against either party. These are all factors to consider when deciding whether to pursue your complaint through the Tribunal process.

[1] Hammond v Credit Union Baywide at [176] 
[2] See paragraph [170.3]

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Privacy News – January 2025

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The first Privacy News of 2025 covers the release of the Biometrics Code and how to give feedback on this, a new case note about personal information being published to a website, and the introduction of OPC’s Māori reference panel. There is also a notice about new translations of our privacy brochures – we now offer them in Traditional and Simplified Chinese, and Vietnamese.

Read the January 2025 issue.

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Printable privacy brochures in Traditional and Simplified Chinese

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Printable privacy brochures in Traditional and Simplified Chinese

Our brochure covers New Zealander’s privacy rights, what to do if your personal information is taken, and how to make a complaint to us. It also includes our contact details. We find these are popular with GP clinics, Citizen’s Advice Bureau outlets, and libraries.

These brochures can be printed from a home or office computer. They are double sided, with an English translation on one side. 

Please note, we are unable to provide professionally printed versions of this brochure. View professionally printed options.

Download our privacy brochure in Traditional Chinese (PDF, 1.78MB)

Download our privacy brochure in Simplified Chinese (PDF, 1.78MB)

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AI game-changer for timber manufacturing

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AI-driven hazard detection is coming to timber manufacturing, thanks to a new agreement worth nearly half a million dollars between WorkSafe New Zealand and a major player in the wood processing industry.

Claymark, New Zealand’s largest manufacturer and exporter of premium pine products, is putting $481,000 into a range of initiatives. It comes after a worker had two fingers amputated in a machine at Claymark’s Rotorua factory in February 2023.

WorkSafe’s investigation found the machine was unguarded and there was an ineffective system for maintenance. Training and supervision of workers also fell short.

WorkSafe has now accepted an enforceable undertaking (EU) from Claymark. An EU is a binding commitment to fund and resource comprehensive health and safety improvements. Claymark’s EU includes:

  • CCTV systems incorporating AI technology to indicate risks to workers’ health and safety in real time.
  • Offering up to 15 trials of the technology to other businesses in the wood manufacturing sector.
  • Microlearning and interactive displays in break rooms to upskill workers on health and safety.
  • Reparation to the victim.

We are sharing details of the investment to coincide with World Day for Health and Safety at Work, which this year focuses on the impacts of digitalisation and artificial intelligence on workers’ health and safety.

Workers in action at Claymark’s Vaughan Road factory in Rotorua.

“We are looking forward to seeing Claymark pioneer its AI innovation to benefit the timber processing sector more broadly. Agreements like this are all about enacting positive improvements from an adverse event,” says WorkSafe’s Head of Regulatory Services, Tracey Conlon.

“The initiatives align with WorkSafe’s priority plan for manufacturing, which is one of the most high-risk sectors for workers in Aotearoa. Unsafe machinery is a persistent problem in the sector, which businesses cannot overlook.”

EUs are a way for WorkSafe to hold businesses accountable for health and safety breaches. WorkSafe monitors progress on the agreed commitments and can seek a court order enforcing them if they are not upheld. WorkSafe’s role is to influence businesses to meet their responsibilities and keep people healthy and safe.

Read the Claymark decision document

Find out about enforceable undertakings

Statement from Claymark’s executive director Paul Pedersen

At Claymark, the health, safety, and wellbeing of our people is our highest priority. An incident involving one of our team members has had a significant impact – both physically and emotionally. We acknowledge the effect this has had on the individual, their whānau, and our wider community, and we are committed to learning from this experience to ensure safer outcomes for everyone.

Through our enforceable undertaking, we see a valuable opportunity to drive meaningful, people-focused change – both within Claymark and across the wood manufacturing sector.

Our key initiatives include:

  • Engaging with local communities and schools in the towns where we operate to promote safe wood manufacturing practices and support safe, informed pathways into the industry.
  • Working alongside the Central North Island Wood Council (CNIWC) and other industry bodies to share our learnings and help build a stronger health and safety culture sector-wide.
  • Investing in our people through modern, online and interactive training modules, with flexible learning tailored to roles and responsibilities. We are also exploring the potential of AI to support smarter, more responsive safety systems and personalised learning experiences.

This is about more than compliance – it’s about creating a workplace where our people feel informed, supported, and safe. Claymark is committed to continuous improvement and collaboration as we work towards a safer, stronger future for our people, our industry, and our communities.

Statement from the injured worker

On 27 February 2023, my life changed forever. While performing my job, I suffered an injury that resulted in the amputation of two fingers on my right hand. Since that day, I’ve undergone three surgeries to address the damage, and while recovery has been challenging, I remain hopeful about the possibility of prosthetic fingers in the future.

Everyday tasks I once took for granted like writing, showering, even holding objects, now require patience and adaptation. Music, which has always been a passion of mine, has become a bittersweet pursuit; playing the guitar and trumpet now demands creativity and resilience as I relearn techniques with my altered hand.

Throughout this journey, my wife, children, and wider whānau have been my rock. Their unwavering emotional support and practical help have carried me through the darkest moments of my recovery. I cannot overstate how grateful I am for their love and strength.

I’m deeply appreciative of Claymark’s commitment to workplace safety improvements outlined in this agreement, many of which I’ve witnessed firsthand. At 51, retirement isn’t an option I’m ready to consider which is why I feel fortunate to continue contributing to Claymark’s team. While my path forward looks different than I once imagined, I’m determined to adapt and keep moving ahead, one day at a time.

Media contacts

For WorkSafe: media@worksafe.govt.nz

For Claymark: walter@claymark.co.nz

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Inspector recruitment underway

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WorkSafe New Zealand has opened its first intake of health and safety inspectors for 2025, and is keen to hear from anyone with an interest in making work safer in Aotearoa.

Inspectors are our frontline eyes and ears across the motu. We are adding up to 60 new recruits this year, each of whom will get full training and development.

This is an opportunity for people starting their career, looking for a change of career, or considering a meaningful way to repurpose their existing skills. You’ll need to be communicative and resilient, have an inquiring mind, and be an effective problem solver.

“We are currently integrating the full range of assessment and investigation work in our inspectorate. This will create a supportive training ground for our incoming inspectors to springboard from,” says WorkSafe’s Head of Inspectorate Rob Pope.

WorkSafe is investing an extra $2.7 million annually into growing its inspectorate. This is part of our new strategy to target the sectors with highest work-related harm – construction, manufacturing, forestry, and agriculture. While a background in these sectors would be highly advantageous to working for WorkSafe, it is not essential.

WorkSafe is the health and safety regulator for work in New Zealand. Our role is to influence businesses to meet their responsibilities and keep people healthy and safe.

Learn more about becoming a health and safety inspector

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Technical bulletin: Occupational divers under training – trainee divers

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This technical bulletin provides guidance about the work trainee divers may undertake while under direct supervision during occupational diving operations.

Introduction

WorkSafe New Zealand requires applicants to provide dive logs to support their Certificate of Competence (CoC) application.

WorkSafe has recently seen an increase in divers submitting dive logs that indicate a need to make clear the distinction between a ‘diver under training’ and a ‘diver working without a CoC’.

This technical bulletin clarifies recommendations for divers who do not hold a current CoC as an occupational diver, but who are doing training dives while at work.

Background

The Health and Safety in Employment Regulations 1995 (the Regulations) require occupational divers working for a Person Conducting or Undertaking a Business (PCBU) to hold a CoC in the category in which they are diving. The CoC is issued by WorkSafe.

The Regulations have a provision allowing workers to undertake training to become the holder of a CoC, but require diving ‘under the direct supervision’ of another diver who holds a CoC for that category of diving.

WorkSafe defines direct supervision as being ‘within reach or contact at all times to ensure immediate assistance can be provided if necessary’.

When is a diver under training?

If a diver does not hold a current CoC, they must be under the direct supervision of a current CoC holder while diving is taking place. In this case they are considered a ‘trainee diver’.

As with all trainees in the workplace, supervision is required because they do not yet meet the necessary level of competency to operate independently in the workplace. For divers, this level of supervision is higher than expected in other workplaces.

Students undertaking formal instruction on a diving course (for example, Australian Diver Accreditation Scheme, Professional Association of Diving Instructors, and Science Diving New Zealand) are not working and do not require a CoC under the Regulations providing all the diving is in accordance with the course syllabus and supervised by a suitably qualified trainer holding a CoC.

But if they begin work tasks outside of their dive course (for example, leading dives, taking samples, fixing nets, cleaning aquariums or being a safety diver) they are considered to be working and will be seen as requiring a CoC.

What sort of training can be undertaken?

While the Regulations allow for employees to train to become a holder of a CoC, the Health and Safety at Work Act 2015 (HSWA) requires a PCBU to ensure the reasonable safety of all workers, including those under training.

Before conducting any trainee diving, a PCBU must ensure that the minimum diver level pre-requisite competency has been met, and the trainee divers are competent to learn the specific tasks required for that category of CoC. This includes the use of the diver’s breathing equipment and any hazardous powered tools – both of which should be taught in a formal diving course before use in any workplace.

As trainee divers are learning, PCBUs must also consider both the environment and duration of the training as well as competency levels. Dive sites should be assessed to be of low risk, close to appropriate surface and emergency support and in an environment where the focus is on the work skills being taught, not the hazards of the actual dive site. Remote and isolated sites are not recommended.

Further, being a ‘trainee diver’ should be time limited to ensure the diver has an expectation of how long it will take to achieve competency in the assigned work skills and be able to be assessed for all the skills learnt. Most trainee divers should be able to effectively show competency within a few weeks or months, depending upon the complexity of diving and skills required. In any case the trainee period should be limited to six months at maximum, unless there are exceptional circumstances.

What is not considered training?

A trainee diver cannot fill the role of a standby diver – any standby diver must be able to immediately come to the working diver’s assistance, and as such must already hold a suitable CoC. Performing the role of a standby diver is not considered training.

Even though a trainee diver may be considered the CoC diver’s ‘buddy’ when diving, they cannot be counted as an extra ‘working diver’. Doing so without having separate direct supervision may not be considered training and could indicate the diver is working without a CoC.

Dive logging as a trainee diver

It is expected practice that trainee divers log any supervised dives as training dives to achieve a competency requirement or qualification. This practice is clearly undertaken in a formal course environment and should be replicated by all divers under training.

All normal dive log details should be recorded (such as date, location, depth and time) along with details of their supervising diver, other divers in the team as well as the competencies and activities being undertaken. The logs of training dives should then be submitted as part of their CoC application.

Any dives not directly supervised are not considered training or suitable recent experience for the trainee diver and could indicate that the diver may have been working without a CoC.

Medicals for trainee divers

The Regulations require that occupational divers be ‘medically fit’. Due to the health and exposure risks associated with occupational diving, any trainee diver should be medically assessed and hold a diving medical clearance prior to undertaking any training dives under supervision.

Recommendations

The competency requirements for the relevant categories of CoC are the minimum standards for an occupational diver in the respective sectors. Sometimes a risk assessment will identify additional competencies that divers may require.

WorkSafe recommends:

  • A trainee diver must be under direct supervision of a suitable CoC holder when underwater.
  • A trainee diver should hold a suitable medical clearance for occupational diving and have the minimum pre-requisite diving qualifications required to apply for a CoC in that category of diving before starting in-water training.
  • Training should only be conducted with appropriate controls for the safety of both the trainee and supervising diver.
  • Training sites should be assessed as suitable for the trainee diver and with adequate surface and emergency support.
  • At no time should a trainee diver be using any diver’s breathing equipment or hazardous powered tools unless qualified from, or as part of, a formal training program.
  • All training dives should be logged as such with appropriate details included.
  • Employers should aim to achieve the competency requirements in a timely manner with minimal delay. Divers should not be operating as divers-in-training for an extended period.

Further information

WorkSafe occupational diving guidance

Health and Safety in Employment Regulations 1995(external link)

Providing information, training, instruction or supervision for workers

Acknowledgement

This technical bulletin has been developed in consultation with the Diving Industry Advisory Group (DIAG).

Download

Technical bulletin: Occupational divers under training – trainee divers (PDF 164 KB)

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Subbies deserve safety at work too

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A forestry subcontractor was failed by poor risk management from the two businesses above him, both of which have been sentenced for their inaction.

39-year-old Misha Tremel was killed while manually felling trees on a small block at Clevedon in June 2022. The qualified tree feller had been brought in by Turoa Logging Limited, which was harvesting 7,800 tonnes of pine on behalf of the forest managers Pulley Contracting Limited.

Some of the trees being manually cut by Mr Tremel were windthrown, meaning they had been bent and damaged by wind. WorkSafe and the forestry industry strongly recommend that such trees are harvested using machines.

WorkSafe’s investigation found Turoa Logging had not properly reassessed its harvesting plan after nearby trees were cut by machinery and had not ensured safe felling practices were followed. Pulley Contracting did not do enough to identify the ongoing risks to workers and should have been auditing Turoa Logging more thoroughly.

“Businesses must manage their risks and cannot contract their way out of responsibility. Contractors on smaller sites like this are owed the same level of care as those in large-scale operations,” says WorkSafe’s area investigation manager, Paul West.

Mr Tremel was a much-loved husband and father who was originally from Ukraine. His death continues to be a shattering loss for his young family to process.

“Businesses must consult, cooperate and coordinate as part of a contracting chain. WorkSafe recommends health and safety is always built into contract management,” says Paul West.

Forestry had the highest fatality rate of any sector in 2024, with 16.58 deaths per 100,000 workers. Under its new strategy, WorkSafe is turning about 15 percent of its targeted frontline activity to the forestry sector because of the high rate of harm, particularly for Maōri.

WorkSafe’s role is to influence businesses to meet their responsibilities and keep people healthy and safe. When they do not, we will take action.

Read more about health and safety obligations in contracting

Background

  • Turoa Logging Limited and Pulley Contracting Limited were sentenced at Manukau District Court on 4 March 2025.
  • Both companies were ordered to pay a combined total of $335,680 in fines and reparation
  • Both companies were charged under sections 36(1)(a), 48(1) and (2)(c) of the Health and Safety at Work Act 2015:
    • Being a PCBU having a duty to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while the workers were at work in the business or undertaking, did fail to comply with that duty, and that failure exposed workers to a risk of death or serious injury.
  • The maximum penalty is a fine not exceeding $1.5 million.

Media contact details

For more information you can contact our Media Team using our media request form. Alternatively:

Email: media@worksafe.govt.nz

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High hazards newsletter – February 2025

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Welcome to the sixth WorkSafe High Hazards newsletter where we’re covering:

  • Update from the Chief Inspector
  • Industry alerts – floating roof tank corrosion, critical fastener material selection
  • What we’re seeing – RPE failures, machine guarding failures
  • Lock out/tag out system safety minute
  • Forklifts in hazardous areas
  • Flixborough – 50 years on
  • High hazards notifiable incidents – quarterly data
  • Incidents in the news

Read the full newsletter(external link)

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Advisory: Police exercise at Mānawa Bay is now live

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Police can advise that a planned training exercise at Mānawa Bay, near Auckland Airport is now under way.

The public are reminded that they may see tactical Police staff and other emergency services outside the centre.

There is no cause for alarm.

This exercise is taking place outside of Mānawa Bay’s operating hours.

Mānawa Bay and its car park are closed to the general public.

Police will issue a further advisory once the exercise is completed.

ENDS

Jarred Williamson/NZ Police