Privacy Act 1993

A   B   C   D   E   F   G   H   I   J   K   L   M   N   O   P   Q   R   S   T   U   V   W   X   Y   Z

A

Adjournment – after close of evidence parties making final submissions – whether appropriate to adjourn hearing to enable party to call further evidence – litigant in person – Human Rights Act 1993, s 105 – Privacy Act 1993, s 89

Amicus curiae – application for the appointment of – whether jurisdiction to appoint – Human Rights Act 1993, s 108

Application to appear and to call evidence by person with interest in the proceedings greater than the public generally – factors to be taken into account – Human Rights Act 1993, s 108

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B

Bias – apparent bias – recusal – test for

Burden of proof – Principle 6 – whether Privacy Act creates a strong right to access personal information – whether plaintiff must establish interference with privacy on balance of probabilities – whether agency has onus of proving exception – information privacy Principle 6 – Privacy Act, ss 11, 27, 29, 30, 44, 85(1) and 87

Burden of proof – Principle 11 – sequential steps to be followed – information privacy Principle 11 – Privacy Act 1993, ss 85(4) and 87

Burden of proof – unauthorised disclosure of personal information – loss of documents from departmental file – information privacy Principle 11 – Privacy Act s 85

Burden of proof – terms of request – information the subject of the request – duty to establish – Privacy Act 1993, ss 40 and 85

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C

Causation – appropriate standard – whether sufficient to show contributing cause in sense of a material cause – test where multiple causes – Privacy Act 1993, s 66(1)

Causation – interference with privacy – remedy – whether there must be a causal connection between either a s 66(1) form of interference or a s 66(2) form of interference and one of the forms of loss or harm listed in s 88(1)(a), (b) or (c) – Privacy Act 1993, s 88(1)

Causation – interference with privacy – two separate definitions in s 66(1) and s 66(2) – whether causation an element of s 66(1) definition – whether causation an element of s 66(2) definition – Privacy Act 1993, s 66

Certificate of Investigation by Privacy Commissioner – function of – whether capable of challenge - construction

Certificate of Privacy Commissioner – establishing jurisdiction of Tribunal – whether certificate capable of challenge – Privacy Act 1993, ss 82, 83 and 105

Charges – reasonable – assessment of – Ministry of Justice guidelines – relevance of – charging regimes under Official Information Act 1982, s 15(2) and Local Government Official Information and Meetings Act 1987, s 13(3) – Privacy Act 1993, s 35(2), (3) and (5)

Children – litigation guardian – appointment of – right to be heard – High Court Rules, rr 4.29, 4.30, 4.31 and 4.32 – Convention on the Rights of the Child 1989, Article 12

Children – litigant under the age of 16 – name suppression – autistic spectrum disorders – form of anonymisation – Human Rights Act 1993, ss 95(1) and 107(3)

Closed hearing – procedure to be followed – Privacy Act 1993, ss 27(1)(c), 29(1)(a) and 29(1)(f)

Collect – meaning of – whether embraces wider field of activity than mere receipt – whether engaged only when information is received – whether applies before information is collected – information privacy Principle 1 – Privacy Act 1993, s 2(1) – OECD Guidelines

Collect – meaning of – whether surveillance of an individual by a monitoring device collection under Privacy Act – Privacy Act 1993, s 2(1) – OECD Guidelines

Collection of information –Code of Conduct for Obtaining Information Under Section 11 Social Security Act 1964 – burden of proof – information privacy Principle 2 – Privacy Act 1993, ss 11(1) and 85 – Social Security Act 1964, ss 11, 11B and 11C

Collection principles – point at which engaged

Correction of personal information – meaning of “correct” – whether refusal to correct an interference with privacy – information privacy Principle 7 – Privacy Act ss 40, 66(1), 66(2), 66(3) and 66(4)

Correction of personal information – nature of obligation to “correct” – information privacy Principle 7

Costs – each party partially successful – whether award would discourage bringing or defending of proceedings – case not presented by counsel with optimum clarity – novel point – test case – costs consequence – Privacy Act 1993, s 85(2)

Costs – litigant in person – claim for disbursements – whether excessive

Costs – principles to be applied – whether a presumption costs to be awarded successful party – whether civil litigation rules applicable in human rights context – whether discretion to award costs must promote, not negate objects of statute – whether means of unsuccessful party relevant – whether appropriate to discourage individuals from accessing human rights protection – Human Rights Act 1993, s 92L, Privacy Act 1993, ss 85(2) and 105, Health and Disability Commissioner Act 1994, s 54(2) – International Covenant on Civil and Political Rights, Article 2(1)

Costs – principles to be applied – whether costs to punish unsuccessful party – whether costs to discourage party from bringing or defending proceedings – whether litigants in person who engage in needless and inexcusable conduct enjoy immunity – whether understanding and compassion relevant – legally aided defendant – whether “but for legal aid” order to be made – Privacy Act 1993, s 85(2) – Legal Services Act 2011, s 45(2) and 45(5)

Costs – principles to be applied – Human Rights Act 1993, s 92L

Costs – reasonable contribution – increased costs – quantum – Privacy Act 1993, s 85(2)

Costs – reasonable contribution – representation by in-house litigation solicitor – quantum – Privacy Act 1993, s 85(2)

Costs – representation – counsel acting pro bono or on basis fee to be waived if client unsuccessful – whether awarding or withholding costs will discourage litigants from bringing or defending proceedings – whether accounts and receipts required – Human Rights Act 1993, s 105 – Privacy Act 1993, s 85(2)

Criminal proceedings – discovery in the course of – degree to which governed by Privacy Act – Privacy Act s 7(1) and information privacy Principle 11, Criminal Disclosure Act 2008 ss 3, 8, 7 and 42

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D

Damages – humiliation, loss of dignity and injury to feelings – general principles for the assessment of – three bands identified – quantification of damages – principles – restraining order – deletion of records – retraction – training order – information privacy Principle 11 – Privacy Act ss 85(1)(a), (b), (c) and (d) and 88(1)(a), (b) and (c)

Damages – loss of benefit – upwards adjustment of old awards – loss of good credit rating – significance of – training order – information privacy Principle 8 – Privacy Act ss 85(1)(c) and 88(1)(b)

Decision on request – time for making – as soon as reasonably practicable and in any case not longer than 20 working days after the day on which the request is received – Privacy Act 1993, s 40(1)

Decision on request – time for making – obligation to give reasons – whether reasons must be given before it can be said a decision on the request has been given – Privacy Act 1993, ss 40(1), 44 and 66(3)

Directions – failure to comply with case management directions – whether proceedings to be struck out – Human Rights Act 1993, s 115 and Human Rights Review Tribunal Regulations 2002, reg 16

Discovery – discovery against non-party – jurisdiction to order – procedure to be followed – whether order for particular discovery against non-party the only means to gain access to documents held by non-party – subpoena duces tecum – witness summons requiring production of papers, documents, records or things – Human Rights Act 1993, ss 104(5), 106(1)(a), (b) and (c) and 109 – Human Rights Review Tribunal Regulations, reg 16(1) – High Court Rules, rr 8.21 and 9.52

Discovery – redactions upheld by Ombudsman under LGOIMA – weight to be given – discretion as to confidential information – relevance of implied undertaking that discovered documents and information will be used only for the purpose of the proceedings – Evidence Act 2006, s 69 – Local Government Official Information and Meetings Act 1987, s 7(2)(a)

Discovery – structure of discovery before Tribunal – relevant principles – further and better discovery – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, rr 8.1 to 8.33

Dismissal of proceedings – trivial, frivolous or vexatious or not brought in good faith – Privacy Act 1993, s 195

Domestic affairs exemption – elements to be established – agency that is an individual – personal information collected or held – whether use and disclosure included – meaning of personal family or household affairs – acting in an individual capacity – whether scope of domestic affairs exemption to be narrowed – Privacy Act 1993, s 56

Evaluative material – compiled solely – whether mixed purposes allowed – whether a distinction to be drawn between fact on the one hand and evaluative or opinion material on the other – Privacy Act 1993, s 29(1)(b)

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E

Evaluative material – express or implied promise – whether promise of confidence to be made prior to or at the time of the supply of information – whether promise of confidentiality must be relied on when information provided – Privacy Act 1993, s 29(1)(b)

Evaluative material – meaning of “contract, award, scholarship, honour, or benefit” – Privacy Act 1993, ss 29(1)(b) and (3)(b)

Evidence – admissibility – discretion to admit evidence – test – relationship between Human Rights Act 1993 and Evidence Act 2006 – veracity evidence – Human Rights Act 1993, ss 106(1) and (4) – Evidence Act 2006, ss 5(1), 7, 8 and 37 – Privacy Act 1993, s 89

Evidence – holding of a view – use of information obtained at a view – Evidence Act 2006, s 82 – Human Rights Act 1993, s 106(4) – Privacy Act 1993, s 89

Evidence – veracity evidence – whether substantially helpful – whether of evidentiary value – whether probative value outweighed by the risk of unfair prejudicial effect on the proceeding or needlessly prolong the proceeding – Evidence Act 2006, s 37 – Human Rights Act 1993, ss 8, 37 and 106(1)(d)

Extension of time – limited circumstances in which available – Privacy Act 1993, s 41

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H

Health information – meaning of – correction of – extent of entitlement – Health Information Privacy Code 1994, rr 4 and 7

Health information – whether liability for breach of Health Information Privacy Code is personal – limitations on disclosure of health information – burden of proof – sequential steps to be followed – Privacy Act 1993, s 53 – Health Information Privacy Code 1994, Rule 11

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I

Immigration – application of Principle 8 – degree to which principle engaged in immigration context – whether confers a right –whether can be used as vehicle to reverse statutory onus and impose on INZ duty to make inquiry – whether duty on agency to ensure applicant has put forward best possible case – whether duty to draw attention to defects in case – whether imposes duty to allow comment on potentially prejudicial information – information privacy Principle 2 – Immigration Act 2009, s 58

Information requested does not exist or cannot be found – whether agency must show reasonable attempts have been made to find the information – Privacy Act 1993, s 29(2)(b)

Interference with privacy – two separate definitions – the first in s 66(1) and the second in s 66(2) – identifying the separate requirements of each definition – Privacy Act 1993, s 66

Interim order application – non-publication orders – “necessary” – “in the interests of justice” – “preserve the position of the parties” – Human Rights Act 1993, ss 95 and 107(3)(b) and Criminal Justice Act 1985, ss 139 and 140

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J

Jurisdiction – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – duty on Commissioner to inform complainant, the individual alleged to be aggrieved (if not the complainant) and the person to whom the investigation relates of intention to make investigation and of details of the complaint – duty to identify the complainant and the person alleged to be aggrieved – Privacy Act 1993, ss 73(b) and 83

Jurisdiction – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – duty on Commissioner to inform parties of intention to make investigation – whether satisfaction of the statutory process can occur by necessary implication

Jurisdiction – contracting out of Privacy Act 1993 – whether possible – Privacy Act 1993 Long Title and ss 27, 28, 29 and 30

Jurisdiction – establishment of – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – any action alleged – certificate of investigation by Commissioner – function and whether capable of challenge – Privacy Act 1993, ss 67(1), 70, 73, 82, 83 and 105

Jurisdiction – establishment of – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – any action alleged – certificate of investigation by Commissioner – whether plaintiff must show that each particular document the subject of specific investigation by Commissioner – Privacy Act 1993, ss 82, 83 and 105

Jurisdiction – files containing personal information lost while in possession of contractor – complaint notified to ACC but not contractor – a person in respect of whom an investigation has been conducted by the Privacy Commissioner – Health Information Privacy Code 1994, Rule 5 – Privacy Act 1993, ss 67(1), 70, 73, 82, 83 and 105

Jurisdiction – identifying the “action” alleged to be an interference with the privacy of an individual – certificate of investigation issued by Privacy Commissioner – effect of – Privacy Act ss 82(1) and 83

Jurisdiction – whether function of Tribunal to determine whether defendant committed tort of invasion of privacy or tort of intrusion upon seclusion

Jurisdiction – whether Tribunal has jurisdiction only in relation to those matters investigated by the Privacy Commissioner – Privacy Act 1993, ss 82(1) and 83

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L

Legal professional privilege – waiver – whether waiver by voluntary disclosure by agency to Privacy Commissioner – whether waiver may occur for one purpose and not another – Privacy Act 1993, s 29(1)(f) – Evidence Act 2006, s 65

Liability – employers and employees – principals and agents – whether power to determine issues of indemnity and contribution – Privacy Act 1993, s 126

Limits on disclosure of personal information – authorisation by the individual concerned – non-compliance – necessary for the maintenance of the law – information privacy Principle 11

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M

Making of information privacy request – when request “made” – Privacy Act 1993 ss 33, 34, 38, 40 and 85

Media – application to obtain photograph of exhibit – whether right to be forgotten – Human Rights Act 1993, s 107(3)

Media – In-Court media coverage – still photographs – sound recording – standard conditions for still photography and for recording – application out of time – In-Court Media Coverage Guidelines 2012

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N

Name suppression – children – litigant under the age of 16 – autistic spectrum disorders – form of anonymisation – Human Rights Act 1993, ss 95(1) and 107(3)

Name suppression – embarrassment or detriment to reputation – weight to be given to – Privacy Act 1993, s 107(3)

Name suppression – interim orders for plaintiff and second defendant – Human Rights Act 1993, ss 95 and 107(3) – Privacy Act 1993, s 89

Name suppression – no case made out but non-publication order made by other court or tribunal in earlier proceedings under other legislation – weight to be given – Privacy Act 1993, s 107(3)

Non-party access to Tribunal file – media – application to obtain photograph of exhibit – whether right to be forgotten – Human Rights Act 1993, s 107(3)

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P

Particulars – failure to provide – not possible for defendant to ascertain what alleged against it – whether proceedings to be struck out – Human Rights Act 1993, s 115 and Human Rights Review Tribunal Regulations 2002, reg 16

Parties – joinder – adding defendants – principles to be applied – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, rr 4.3 and 4.56

Personal information – meaning of – whether identity of an informant is also personal information about the person informed upon – Privacy Act 1993, s 2(1)

Personal information – meaning of – whether includes opinion – information about two or more individuals – whether grounds to withhold all or part of information – Privacy Act 1993, s 2(1) and 29(1)(a)

Practice and procedure – split trials – whether jurisdiction to order separate determination of issues – Human Rights Act 1993, ss 104(5) and 105 – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, r 10.15

Preliminary issues – whether to be determined before trial – split trials – whether jurisdiction to order separate determination of issues – Human Rights Act 1993, ss 104(5) and 105 – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, r 10.15

Principle 1 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 1

Principle 1 – collect – meaning of – whether embraces wider field of activity than mere receipt – whether engaged only when information is received – whether applies before information is collected – information privacy Principle 1 – Privacy Act 1993, s 2(1) – OECD Guidelines

Principle 1 – lawful purpose connected with a function or activity of the agency – necessary – whether reasonably necessary – information privacy Principle 1

Principle 1 – necessary for that purpose – whether reasonably necessary – information privacy Principle 1

Principle 2 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 2

Principle 3 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 3

Principle 4 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 4

Principle 6 – point at which engaged – whether holding of information by agency a pre-condition to operation of the right of access – information privacy Principle 6

Principle 6 – request – when made – Privacy Act 1993, ss 33, 34, 38, 40 and 85 – information privacy Principle 6

Principle 8 – application where creditor instructs debt collection agency or credit reporting agency – whether exposure to legal proceedings and to listing of disputed debt with credit reporting agency a loss, detriment, damage or injury or an adverse affect on rights, obligations or interests – Privacy Act 1993, s 66(1)(b)(i) and (ii)

Principle 8 – whether confers a right – degree to which principle engaged in immigration context – whether can be used as vehicle to reverse statutory onus and impose on INZ duty to make inquiry – whether duty on agency to ensure applicant has put forward best possible case – whether duty to draw attention to defects in case – whether imposes duty to allow comment on potentially prejudicial information – information privacy Principle 2 – Immigration Act 2009, s 58

Principle 11 – believes on reasonable grounds – whether a subjective component (the belief) and an objective component (reasonable grounds) – whether both elements must exist at the date of disclosure – whether agency required to address its mind to the relevant paragraph of Principle 11 on which it intends to rely – whether there must be an actual belief based on a proper consideration of the relevant circumstances – whether explanation devised in hindsight will suffice – information privacy Principle 11

Principle 11 – damages for breach – general principles for the assessment of – information privacy Principle 11

Principle 11 – whether empowers Tribunal to issue order compelling non-party to provide the residential address or phone number of a potential witness or of his or her counsel – information privacy Principle 11

Principle 11(a) – directly related to the purposes – interpretation of – new purpose – whether must have uninterrupted, immediate relationship to original purpose – information privacy Principle 11(a)

Privacy enhancing technologies – use of – whether appropriate – OECD 2013 Revised Guidelines, para 19(g)

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R

Reasons for refusal – whether request under Principle 6 decided in the statutory sense where decision plus reasons not given prior to expiration of the “as soon as reasonably practicable, and in any case not later than 20 working days” time line – Privacy Act 1993, ss 40(1), 44 and 66(3)

Recall of decision once sealed and published – whether jurisdiction – Human Rights Act 1993, ss 104 and 105 – Interpretation Act 1999, ss 13 and 16

Refusal to disclose – disclosure likely to prejudice the maintenance of the law – meaning of “likely” – standard of proof – Privacy Act 1993, s 27(1)(c)

Refusal to disclose – disclosure likely to prejudice the maintenance of the law – Privacy Act 1993, s 27(1)(c)

Refusal to disclose – legal professional privilege – scope of – Privacy Act 1993, s 29(1)(f) – Evidence Act 2006, s 54(1)

Refusal to disclose – unwarranted disclosure of the affairs of another – meaning of “unwarranted” – Privacy Act 1993 s 29(1)(a)

Refusal to make information available – evaluative material – express or implied promise – whether promise of confidence to be made prior to or at the time of the supply of information – whether promise of confidentiality must be relied on when information provided – Privacy Act 1993, s 29(1)(b)

Refusal to make information available in response to request – relevant date on which agency must have good reason for refusal – whether necessary for agency to offer reason at time it communicates decision on the request – information privacy Principle 6 – Privacy Act 1993, ss 29(1)(a), 40(1), 66(2)(a)(i) and (b)

Refusal to make information available – unwarranted disclosure of affairs of another person – whether Principle 6 right of access held by requester to be weighed against competing interest recognised in s 29(1)(a) – how balance to be struck – information privacy Principles 6 and 7 – Privacy Act 1993, s 29(1)(a)

Refusal to make personal information available – information does not exist or cannot be found – whether agency must show reasonable attempts have been made to find the information – Privacy Act 1993, s 29(2)(b)

Refusal to make personal information available – legal professional privilege – meaning of – whether distinction between legal advice and legal services – Privacy Act 1993, s 29(1)(f) – Evidence Act 2006, s 54(1)

Remedy – compensation awarded by Employment Relations Authority – relevance of – whether ERA has exclusive jurisdiction over Privacy Act issues arising in employment relationship problems – Acts Interpretation Act 1999, s 5 – Privacy Act, Long Title – Employment Relations Act 2000, ss 3, 5, 112 and 161(1)(r)

Remedy – delay – effect of – whether declaration to be denied – whether damages to be denied – Privacy Act 1993, ss 85(1)(a) and 88(1)(c)

Remedy – failure to expressly plead request for specific remedy – whether bar to Tribunal considering remedy – Human Rights Act 1993, s 105 – Privacy Act 1993, s 88(1)(b)

Remedy – humiliation, loss of dignity and injury to feelings – meaning of – Privacy Act 1993, s 88(1)(c)

Remedy – humiliation, loss of dignity and injury to feelings – whether Tribunal bound by amount sought by plaintiff – whether causal connection must be established between the action which is interference with privacy of individual and the damages sought – whether aggrieved individual required to establish all three heads of damages – what is included in injury to feelings – Privacy Act 1993, s 88(1)(c)

Remedy – whether declaration to be denied – Privacy Act 1993, s 85(1)(a)

Remedy – whether remedy must be an appropriate response to the circumstances – whether award of damages can exceed that which fits the case – whether award of damages at discretion of Tribunal

Remedy – whether withheld information to be provided – Privacy Act 1993, s 85(1)(d)

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S

Standing – Privacy Commissioner deciding to take no action on complaint – effect of – Privacy Act 1993, s 71

Strike-out application by defendant living overseas and not intending to appear at the hearing – whether agency can contract out of obligations under Information Privacy Principles

Strike-out application – jurisdiction to determine

Strike out application – jurisdiction to strike out – principles to be applied – proceedings clearly untenable in law – Privacy Act 1993, s 7(2) and Parole Act 2002, s 13(4)

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U

Undue delay in making information available – Privacy Act 1993, s 66(4)

Unsolicited – meaning of – Privacy Act 1993, s 2(1)

Unwarranted disclosure of affairs of another person – whether Principle 6 right of access held by requester to be weighed against competing interest recognised in s 29(1)(a) – how balance to be struck – information privacy Principles 6 and 7 – Privacy Act 1993, s 29(1)(a)

Urgency – circumstances in which arises – Privacy Act 1993, s 37

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V

Venue – change of – late application

W

Witness summons – subpoena duces tecum – witness summons requiring production of papers, documents, records or things – Human Rights Act 1993, ss 106(1)(a), (b) and (c) and 109 – High Court Rules, r 9.52

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