Health Information Privacy Code 1994 Amendment No. 6

Thu, 04 Oct 2007 14:21:50 +1300

The Privacy Commissioner issued Amendment No 6 to the Health Information Privacy Code 1994 on 17 September 2007. It comes into force on 1 November 2007. Download a copy of the amendment and explanatory notes about the amendment below.

Immigration Bill 2007

Thu, 08 Nov 2007 14:03:47 +1300

A submission on the Immigration Bill 2007 by the Privacy Commissioner to the Transport and Industrial Relations Committee was presented on 8 November 2007. Download the submission below

Fourth supplement to first periodic review of the operation of the Privacy Act 1993

Mon, 07 Jul 2008 14:49:35 +1200

Report by the Privacy Commissioner to the Minister of Justice supplementing Necessary and Desirable: Privacy Act 1993 Review (December 1998) and the First, Second and Third Supplements to that report

15 May 2008

First Supplement to first periodic review of the operation of the Privacy Act 1993

Mon, 07 Jul 2008 14:34:29 +1200

Report by the Privacy Commissioner to the Minister of Justice supplementing Necessary and Desirable: Privacy Act 1993 Review (December 1998) and offering further recommendations.

7 April 2000

Third supplement to first periodic review of the operation of the Privacy Act 1993

Mon, 07 Jul 2008 14:47:13 +1200

Report by the Privacy Commissioner to the Minister of Justice supplementing Necessary and Desirable: Privacy Act 1993 Review (December 1998) and the First and Second Supplements to that report (April 2000 and January 2003)

18 December 2003

Second supplement to first periodic review of the operation of the Privacy Act 1993

Mon, 07 Jul 2008 14:43:55 +1200

Report by the Privacy Commissioner to the Minister of Justice supplementing Necessary and Desirable: Privacy Act 1993 Review (December 1998) and the first supplement to that report (April 2000)

20 January 2003

Review of Statutory Authorities

Fri, 13 Jun 2008 15:11:00 +1200

General descriptions and reports of the results of all operating matches can be found in the Commissioner’s annual reports.

The Commissioner periodically reviews operating matches to assess their continuing justification for existence, as required under s.106 of the Privacy Act. These can be downloaded below:

1st Report Report by the Privacy Commissioner to the Minister of Justice pursuant to section 106 of the Privacy Act 1993 in relation to a review of the operation of the:

Customs Match;
Commencement-Cessation Match

(21 May 1999)

2nd Report Report by the Privacy Commissioner to the Minister of Justice pursuant to section 106 of the Privacy Act 1993 in relation to a review of the operation of the following information matching provisions:

Penal Institutions Act 1954, section 36F
Tax Administration Act 1994, section 82
Tax Administration Act 1994, section 83
Immigration Act 1987, section 141A

(16 May 2002)

Submission on Law Commission's Issues Paper on Public Registers

Fri, 21 Dec 2007 15:49:29 +1300

Review of the Law of Privacy: Stage 2 submission - November 2007.
Download the submission below

District Court Appeals under the New Zealand Sports Drug Agency Act 1994

Sat, 13 May 2006 16:29:28 +1200

Report by the Privacy Commissioner to the Minister of Justice in relation to Part 24 of the Statutes Amendment Bill (No.7) amending the New Zealand Sports Drug Agency Act 1994

"… running a constitutional state presupposes strict methods of procedure where it is ill-advised to cut corners."

Dr László Majtényi, Annual Report of the Privacy Commissioner for Data Protection and Freedom of Information, Hungary, 1999

Summary

The New Zealand Sports Drug Agency Act 1994 authorises a scheme of sports drug testing in New Zealand. The process of drug testing, and the use of the results to take action against individuals, impacts upon competitors' privacy, civil rights and, in some cases, livelihoods. The Act therefore includes safeguards. One is the right to appeal to the District Court.

This bill restricts the right of appeal. It does this by restricting the District Court's power to give redress to an individual in certain cases where the New Zealand Sports Drug Agency has been found to have breached the Act or regulations.

In this report, the Privacy Commissioner questions the appropriateness of the proposed limit on the District Court's powers. More particularly, the Commissioner recommends that the limit on the District Court's powers should not extend to a breach of the statute by the Agency. The Commissioner also raises the issue of court costs in appeals where the Agency has breached the requirements of the legislative scheme.

PART 24 OF THE STATUTES AMENDMENT BILL (NO.7)

Introduction

Drug testing in any context, whether it be for law enforcement, competitive sport, medical or employment purposes, raises significant privacy issues. The issues arise throughout the process from the very earliest decision to test an individual or class of individuals through the taking of samples to the use and disclosure of the results.

The collection process involved in sports drug testing is extremely intrusive into personal privacy. The taking of a urine sample involves close scrutiny of a bodily function which individuals desire normally to be carried out in private. A drug testing programme affects athletes' civil and economic rights since they have to accept testing or be excluded from participation. The use of the information generated raises serious information privacy issues. Additional issues arise when the State's powers are involved, as here, through the operation of statute and the activities of public bodies.

The effects on athletes' rights were gone into at the time of the enactment of the Sports Drug Agency Act 1994 (the "NZSDA Act"). I was consulted prior to the introduction of that bill to Parliament and provided evidence to the Government Administration Committee considering the bill.1

Notwithstanding some concerns,2 I accepted in 1994, and continue to accept, a case for a well structured, appropriately implemented and fair sports drug testing law given the international environment of competitive sport. The 1994 Act has many features which help make for a fair and reasonable law which balance the competing interests and safeguard competitors' rights. One such feature is the ability to appeal to the District Court. The effectiveness of this important safeguard is being significantly limited in this bill. It is the sole aspect to which I direct this report.3

In my 1994 submission to the Government Administration Committee I noted the importance of the possibility for District Court appeal as a safeguard in the bill to ensure accurate and reliable results. I noted:

"The bill establishes an appeal right to the District Court on certain limited grounds set out in clause 16(2). Essentially the appeal allows a competitor to establish that he or she did have reasonable cause for failing to provide a sample or that there are reasons (primarily procedural) why the Board's determination should not be upheld. The appeal provisions provide an important safeguard. In some ways they enhance the legal certainty of the Agency's actions since a competitor's only other legal option, if they feel that they have been unfairly dealt with, might be judicial review.

"Clause 19(1) sets a very short period in which a competitor may appeal - five working days. I would not like to see this period reduced any further since individuals need to have time to consider their position, take legal advice if necessary and then take the necessary steps to lodge an appeal if desired. I note that clause 34 enables the Court to extend time limits."4

I now turn to the detail of the amendment as it affects District Court appeals.

Amendments affecting District Court appeals - clauses 91-93

Clause 91 amends section 20 of the NZSDA Act, which provides a right of appeal by a competitor to the District Court against a determination by the Board of the Agency. A replacement section 20(2)(b) is substituted, which sets out grounds upon which a competitor may appeal to the District Court against a determination. There is an expansion of the grounds upon which appeals can be taken, which I support, and a rewording of some of the existing grounds. The new section 20(2)(b) provides that the grounds for an appeal are to be limited to:

"In the case of a determination under section 16B that:
(i) The second testing of the sample did not support the initial test result; or
(ii) The positive test result relates to a drug or doping method that is not banned in circumstances specified in the schedule under section 6(1)(a)(iii) and those circumstances existed in the competitor's case at the time the competitor was tested; or
(iii) The sample was not tested by a laboratory; or
(iv) The Agency or the laboratory failed to comply with the requirements of the regulations relating to the sealing of any container containing the sample or the recording of information relating to the sample; or
(v) The Agency or the laboratory failed to comply with the requirements of the Act or the regulations in any respect other than one described in subparagraph (iii) or subparagraph (iv); or
(vi) The identity or integrity of the sample or reliability of the test result were compromised, or are likely to have been compromised, by anything other than a matter described in any of subparagraphs (iii) to (v)." Emphasis added

I will return presently to the highlighted subparagraph 20(2)(b)(v). The other provision of importance to this report is a proposed new subsection 22(1A) to be inserted by clause 93. This states:

"(1A) The District Court must not quash a determination by reason of a failure referred to subparagraph (iv) or subparagraph (v) of section 20(2)(b) if the District Court is satisfied that the failure did not compromise the identity or integrity of the sample or the reliability of the test result or the competitor's rights to privacy and natural justice".

The explanatory note in relation to clause 93 states:

"Clause 93 amends section 22 of the principal Act, which relates to the decision of the District Court on an appeal. A new subsection (1A) provides the District Court must not quash a determination by reason of a failure to comply with the procedures in the regulations or the Act if the Court is satisfied that the failure did not compromise the identity or integrity of the sample or the reliability of the test result or the competitor's right to privacy and natural justice." Emphasis added

I am of the view that the highlighted phrase is not accurate since the provision does not explicitly limit itself to provisions in the Act relating solely to procedural matters (although procedural requirements are most likely to be in issue).

I hold strong reservations about the proposed new section 22(1A) which will prohibit the District Court from allowing an appeal even in cases where the Agency has been found to have failed to have followed the requirements of the Act and/or regulations.

Requirements of statute and regulations - section 22(1A) should be limited to the latter

I was consulted by officials in relation to this amending legislation. The proposal was to constrain the District Court's powers in cases involving a breach of procedures prescribed by regulations. The proposal did not encompass cases where the New Zealand Sports Drug Agency had failed also to follow procedures prescribed by the statute itself or had breached any other aspect of the Act. I understand that it was only in last minute drafting changes that the constraints on the District Court were also made to apply, apparently inadvertently, to cases involving a failure to follow the requirements of the statute. I was led to understand that there was insufficient time for the Department to put the matter right prior to introduction of the legislation.

This matter should now be directly addressed. Even if no other change were to be made to the proposed legislative scheme, its application to breaches of the Act, as against regulations, should be removed. It seems to me that this aspect of the proposed legislation is unattractive from a constitutional point of view. It is unusual to allow a District Court appeal and yet prohibit the Court from setting aside a determination where it has been established the governing statute has been breached. Although some similar constitutional arguments can be taken in relation to the proposal to limit the Court's powers where regulations have been breached, such limits seem less objectionable given the lesser nature of matters normally relegated to secondary legislation.

I consider that it would be a relatively simple drafting task to sort out this matter. The problem could be cured by changing the proposed section 20(2)(b)(v) to split out, into two subparagraphs, the Act and regulations aspects. Having done this, the limitations in the proposed new section 22(1A) would be made to refer only to the subparagraphs relating to the regulations.

Suggested approach to the proposed limitation on District Court powers

I remain unconvinced as to the need to whittle down the rights to obtain redress on appeal as proposed in clause 93. Where a statute sets down a series of carefully thought through procedural safeguards, there needs to be some appropriate redress if these are breached by statutory authorities. The District Court appeal process provides the mechanism in this statutory scheme. In one case an appeal was allowed following the Agency's failure to follow the procedural requirements in the regulations. The judge in that case observed that:

"The regulations therefore provide a substantive detailed code for the collection of a sample, and such regulations clearly are for the benefit of both the competitor and the officials... ."5.

Clear procedural requirements are of benefit to competitors in terms of protecting their rights. It helps make sure that they know where they stand in respect of a process that may affect both their privacy and their livelihood. However, certainty as to the procedural requirements also exists for the benefit of officials. They know what is required of them and so long as they meet such requirements, the likelihood of successful challenge is slim. The new provision introduces a degree of uncertainty. That is clearly detrimental to the interests of competitors. It also reduces clarity in respect of the position of officials.

Officials should endeavour always to comply with the procedural requirements set out in the regulations. In some cases, mistakes will be made. It is far healthier, in my opinion, that such error should be admitted and lessons learned than for the Agency to persevere in establishing a doping infraction. It some cases, such as in out-of-competition testing, procedures can be repeated. In other cases a competitor, who may possibly have used performance enhancing substances, will gain the benefit of the doubt. However, the remedy lies in the Agency's own hands - more sustained attention to full compliance with the requirements of the regulations. After all, if the Agency does its job properly the issue ought not to arise. The deterrent value of a sports drug testing programme does not hinge on the achievement of a positive finding in every single infraction. However, credibility of the programme depends upon meticulous attention to detail and adherence to all procedures. Credibility also depends on being seen to be scrupulously fair.

At a broad level, it seems to me to be quite undesirable to set up detailed procedural provisions in legislation to protect people's rights but then allow officials who have failed to follow those requirements to take actions which will lead to individuals being penalised while seeking to justify officials' actions based upon their perceived effects. It sends a confused message as to the requirement for officials to respect the rules set up under the legislation. It would be ironic in legislation which seeks to signal to competitors that the rules are to be obeyed to the letter, that the testing agency can be lax and "get away with it".

Accordingly, I suggest that Ministers satisfy themselves of the need for these provisions. The relevant select committee should do the same. Evidence as to the need for this inroad into competitors' rights, and the circumscribing of District Court powers, should be carefully examined. In particular, I suggest that claims of competitors "getting away with technicalities" or the opening of "floodgates" to unmeritorious challenges should be viewed with great scepticism.6 I see no evidence for such claims. I suggest a cautious approach to see if the "menace" of unmeritorious successful appeals actually occurs.

However, if the amendment does go ahead largely as introduced I nonetheless raise the question of the costs of competitors pursuing a District Court Appeal in circumstances in which the Agency has breached the regulations. Sometimes it may at first be unclear that there has been a breach. However, what of a case where the appeal and hearing is only necessary because of a stubborn insistence of the Agency to avoid accountability for its actions notwithstanding a clear breach of the regulations? Should there be provision for costs to be awarded against the Agency where there is an appeal in such circumstances? In such cases the athlete may have grounds for appeal but the Agency escapes responsibility. The Court could be empowered to award costs against the Agency where, at the time of the lodging of the appeal, there appeared to be grounds to do so but for the exemption provision. This might potentially restore an incentive for compliance where the proposed amendment goes in the opposite direction.

At the very least, the competitor should not have costs awarded against him or her in an unsuccessful appeal where the Agency has breached the requirement of the legislative scheme but is protected by reliance upon section 22(1A).

Recommendations

I recommend:

1. That appropriate amendments be made to proposed sections 20(2)(b)(v) and 22(1A) to ensure that any limitation on the District Court's power to allow an appeal does not extend to the New Zealand Sports Drug Agency's failure to follow the requirements of the Act itself (as against any requirements imposed by regulations).

2. That consideration be given in cases where the NZ Sports Drug Agency relies upon section 22(1A), to:
(a) protecting competitors from costs awards in unsuccessful appeals; and
(b) allowing costs to be awarded against the Agency in both successful and unsuccessful appeals.

B H Slane
Privacy Commissioner
2 February 2000

Footnotes:

1 See Submission by the Privacy Commissioner to the Government Administration Committee on the New Zealand Sports Drug Agency Bill, 6 May 1994 and submission on Sports Drug Testing Bill, Points of Emphasis to Select Committee, presented 1 June 1994.
2 For example, the bill was altered by the Select Committee on reporting back, without any opportunity for public submission, to allow for blood testing. The taking of blood involves a serious bodily intrusion and such a proposal should, in my opinion, have been exposed for public debate before the bill proceeded through the House. There did not appear at the time to be a case for urgency to authorise such a radical change - urine testing remains the norm here and internationally more than five years after the hurried expansion of the scope of the NZSDA Act.
3 There are other minor amendments of interest from an information privacy perspective. For instance, changes are being made providing exceptions for competitors whose samples reveal banned substances, if the substances have been used for legitimate medical reasons or occur naturally in those competitors. I will not return to this issue during this report but have concluded that this may bring positive benefits to the privacy of competitors.
4 Submission by the Privacy Commissioner to the Government Administration Committee on the New Zealand Sports Drug Agency Bill, May 1994, paragraphs 7.1 - 7.3.
5 Judge Cadenhead, Appellant v New Zealand Sports Drug Agency (name of appellant suppressed), 16 July 1996, 722/96, Auckland District Court.
6 The Judge in the only District Court appeal case raised with me by the Department when discussing this proposed measure expressly stated in relation to the breach by the Agency in that case "I do not think that such failure can be dismissed as a mere technical irregularity as it seems a fundamental characteristic of the statutory scheme". See Judge Cadenhead, Appellant v New Zealand Sports Drug Agency (noted above). This case involved a failure to seal a sample.

Unsolicited Electronic Messages Act 2007

Thu, 06 Sep 2007 14:11:17 +1200

This Act takes effect on 5 September 2007. The Department of Internal Affairs has established an Anti-Spam Unit to investigate complaints about spam from the public and act against New Zealand spammers. For further information, go to anti-spam