Director of Human Rights Proceedings v Catholic Church for New Zealand HC Auckland CIV 2006-404-006162
[2008] NZHC 156
•19 February 2008
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2006-404-006162
UNDER Part 11 of the High Court Rules
IN THE MATTER OF the Privacy Act 1993
ANDIN THE MATTER OF of a Case Stated by the Human Rights Review Tribunal under s122 of the Human Rights Act 1993
BETWEEN THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS
Plaintiff
ANDTHE CATHOLIC CHURCH FOR NEW ZEALAND
Defendant
Hearing: 10 October 2007
Appearances: R Stevens for Plaintiff
P D McKenzie QC for Defendant
Judgment: 19 February 2008
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
19 February 2008 at 2.00 p.m., pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
R Stevens, 36 Church Street, Devonport, Auckland
Michael Burrowes & Co., PO Box 32146, Wellington
Copy to:P D McKenzie QC, PO Box 10048, Wellington
THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V THE CATHOLIC CHURCH FOR NEW ZEALAND HC AK CIV 2006-404-006162 19 February 2008
[1] According to its long title, the Privacy Act 1993 (“the Act”) was enacted to promote and protect individual privacy. At its heart are principles that apply to the collection, use and disclosure by public and private sector agencies of information relating to individuals, and access by individuals to information about themselves.
[2] Section 6 of the Act sets out the 12 “information privacy principles” around which the mechanisms of the Act revolve. In each case, they cast duties on agencies. “Agency” is a word defined by s 2(1) of the Act. This case concerns the meaning of that definition and in particular the extent of the exclusion which it provides in paragraph (b)(viii) of the definition, by its use of the words “in relation to its judicial functions, a tribunal.”
[3] In form, the present proceeding is a case stated by the Human Rights Review Tribunal under s 122 of the Human Rights Act 1993. The question on which this Court’s opinion is sought is as follows:
Whether the word ‘tribunal’ in s 2(1)(b)(viii) of the Privacy Act 1993 is capable of applying to a non-statutory tribunal and, if so, what criteria (if any) must such a non-statutory tribunal satisfy (apart from the exercise of judicial functions) so as to qualify as a ‘tribunal’ under that provision?
[4] That question as stated is not quite accurate in its reference to the relevant provision of the Act. Subsection (2)(1) of the Act sets out a number of terms which are defined. The definition of “agency” is one such term, and it is that definition that is divided into sub-paragraphs (a) and (b). Other definitions in the subsection also contain sub-paragraphs. However, the intent of the question is quite plain.
Background
[5] The case was stated by the Human Rights Review Tribunal at the request of the defendant. The defendant’s request was opposed by the plaintiff, but in its decision dated 13 June 2006 the Human Rights Review Tribunal took the view that one of the two questions that had been identified by the parties in their submissions was sufficiently important for the matter to be decided by the High Court. I infer from the reasons that it gave, that the Tribunal reached that view because the answer to the question might be dispositive of the proceeding before it.
[6] That proceeding was commenced by the Director of Human Rights proceedings under s 82(2) of the Act. The Director claimed that certain actions of the defendant were in breach of its obligations under the Privacy Act 1993, and amounted to an interference with the privacy of an individual who had had certain dealings with the Catholic Tribunal.
[7] In its decision of 13 June 2006, the Human Rights Review Tribunal explained that the Catholic Tribunal is an entity within the Catholic Church for New Zealand. It deals with a variety of matters that require adjudication from time to time including, of relevance to the present proceeding, the issuing of decrees for the annulment of marriages that have been solemnised by the Church. The Catholic Tribunal is not an incorporated body, nor is it an entity that is either created or recognised by any statutory provision. The question of whether the Catholic Tribunal is a “tribunal” within the definition of “agency” in the Act was a threshold question that the Human Rights Review Tribunal needed to address in dealing with the complaint.
[8] In its decision of 13 June 2006, the Human Rights Review Tribunal set out further background to the proceeding before it [at 4]:
The Director has brought this case on behalf of a complainant who says that the Church failed to answer her request for access to personal information held about her in the manner required by Principle 6 of the Privacy Act. The Church says that, irrespective of any other issues, the Privacy Act does not apply because the information at issue was held by the Catholic Tribunal. The matter is of some potential significance. In essence we are asked to decide whether or not the word “tribunal” … is intended to include only those tribunals that are either created, or which are in some relevant way recognised, by statute – or whether the word is intended to include “tribunals” of other kinds as well.
[9] And, at [6] of its decision, the Tribunal observed:
As it happens, there is another preliminary issue as well, although it is one that only emerged out of the submissions that have been exchanged in respect of the first issue we have identified. Even if it were to be held that the exception in the Privacy Act takes the Catholic Tribunal outside the scope of the Privacy Act, the exception only applies to the activities of a tribunal “ … in relation to its judicial functions …”. The Director does not accept that the conduct of the Church or its Tribunal when it dealt with the information access requests made by the complainant in this case falls within those words. The position of the Church, on the other hand, is that all of the
relevant information requests were sufficiently related to things that were done by the Catholic Tribunal in its “judicial functions”. Again, the Church maintains that s 2(1)(b) (viii) of the Privacy Act is a complete answer to the claim against it.
[10] Being of the view that the second question was a mixed question of fact and law, the Human Rights Review Tribunal declined to seek the opinion of the High Court on that question. However, it has referred the issue about whether the word “tribunal” in the definition of “agency” is capable of applying to a non-statutory tribunal, in the terms that I have already set out. It will be seen that, although the genesis of the issue is the defendant’s argument concerning the status of the Catholic Tribunal, the question on which this Court’s opinion has been sought does not deal with that specific body. Rather, the issue raised is in general terms. That was an appropriate course to follow. Also, given that the question is raised before the commencement of the substantive hearing, there are few facts concerning the actual status of the Catholic Tribunal, its constitution and the manner in which it functions, included in the case stated.
The relevant provisions of the Act
[11] The question raised turns on the meaning of the word “tribunal” as it is used in the definition of “agency” in s 2(1) of the Act. That definition reads as follows:
agency—
(a) means any person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector; and, for the avoidance of doubt, includes a Department; but
(b) does not include—
(i) the Sovereign; or
(ii) the Governor-General or the Administrator of the
Government; or
(iii) the House of Representatives; or
(iv) a member of Parliament in his or her official capacity; or
(v) the Parliamentary Service Commission; or
(vi) the Parliamentary Service, except in relation to personal information about any employee or former employee of that agency in his or her capacity as such an employee; or
(vii) in relation to its judicial functions, a court; or (viii) in relation to its judicial functions, a tribunal; or (ix) an Ombudsman; or
(x) a Royal Commission; or
(xi) a commission of inquiry appointed by an Order in Council made under the Commissions of Inquiry Act 1908; or
(xii) a commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specified matter; or
(xiii) in relation to its news activities, any news medium:
[12] Section 6 of the Act sets out the information privacy principles which are the Act’s substantive core. They do not need to be discussed in any great detail. However, it is appropriate to refer to principle 6, the application of which is in issue in the proceeding before the Human Rights Review Tribunal. Principle 6 reads as follows:
Principle 6
Access to personal information
(1) Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled—
(a) To obtain from the agency confirmation of whether
or not the agency holds such personal information; and
(b) To have access to that information.
(2) Where, in accordance with subclause (1)(b) of this principle, an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information.
(3) The application of this principle is subject to the provisions of Parts
4 and 5 of this Act.
[13] It is perhaps useful to observe that principle 6, as with the other principles contained in s 6 of the Act, is a principle concerning “information privacy”. The Act does not deal with privacy in the broader sense of the interests of individuals to be left alone in the privacy of their home. Further, principle 6, although it might ultimately be seen as having a “protective” object, actually provides a right to obtain information (namely, information held about the person who is seeking to obtain the information) rather than seeking to prevent or restrict the obtaining of information (the province of the other information privacy principles).
[14] Passing reference can also be made to information privacy principles 2, 3, 10 and 11 because each contains a provision in which the word “tribunal” appears. In each case, the word appears in the same setting, as part of a provision which operates as an exemption from the obligations otherwise arising from the privacy principles concerned. For example, privacy principle 2 requires that an agency that collects personal information must collect the information directly from the individual concerned. However, it is not necessary for it to do so if it believes any of a number of matters, on reasonable grounds. They include (paragraph (2)(d)) that non- compliance is necessary:
(i)to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or
(ii) for the enforcement of a law imposing a pecuniary penalty; or
(iii) for the protection of the public revenue; or
(iv) for the conduct of proceedings before any Court or tribunal (being proceedings that have been commenced or are reasonably in contemplation) …
[15] Non-compliance with principles 3, 10 and 11 is authorised by provisions in the same terms.
The defendant’s argument
[16] For the defendant, Mr McKenzie QC presented a detailed and careful argument designed to demonstrate that the exclusion from the definition of “agency”
for tribunals in relation to their judicial functions extends to both statutory and non- statutory tribunals.
[17] First, he pointed out that the word “tribunal” carries a broad meaning and is not on the face of it limited in ordinary usage to statutory tribunals. It can include domestic bodies. In the context of the Privacy Act, he pointed out that the word “agency” itself was couched in terms which extended very broadly. Thus, it embraces bodies whether they are corporate or unincorporate, and whether in the public or private sectors, the latter by virtue, at least, of sub-paragraph (xiii) with its broad reference to “any news medium”. In the circumstances, he argued that clear words would be necessary if, in the case of any of the exclusions which then follow in paragraph (b) of the definition, they were to be limited only to statutory or public bodies. He contended that, in this context, the words used in sub-paragraph (viii) of paragraph (b) were plainly intended to catch all bodies exercising judicial functions.
[18] Mr McKenzie derived some support for this approach from the decision of
Heron J in Arbitrators’ Institute of New Zealand Inc v Legal Services Board [1995] 2
NZLR 202. In that case, the Legal Aid Review Authority had held that the parties to an arbitration did not qualify for a grant of legal aid within the relevant part of s
19(1) of the Legal Services Act 1991, which referred to proceedings in “any administrative tribunal or judicial authority (not being a tribunal or authority in respect of any decision of which an appeal lies to any of the bodies referred to in any of paragraphs (g) to (j) of this subsection) …”. It was argued in the High Court that an “arbitrator” was a “judicial authority” and that an arbitration was a “proceeding” for the purposes of the statute. Heron J noted that it had not been contended that an arbitrator was an “administrative tribunal” for the purposes of the provision, observing, at 203, that “[a]n administrative tribunal is, amongst other things, a body established by some form of government authority rather than by private contract”.
[19] Mr McKenzie’s point in referring to the case, however, was for the distinction made by Heron J between the words “administrative tribunal” and “judicial authority”, with judicial authority being held to refer to courts, and administrative tribunals to bodies other than courts. He argued that, in the same way, the definition in the present case should be seen as contrasting “court” in sub-
paragraphgraph (vii) with “tribunals” in sub-paragraph (viii), the latter being intended to cover all bodies carrying out judicial functions other than courts.
[20] Mr McKenzie further noted that where the draftsman had intended to refer to a statutory body, that had been done, and he referred to the words used in sub- paragraph (xii) with respect to commissions, boards, courts or committees of inquiry “appointed, pursuant to, and not by, any provision of an Act…”. He contended that if the intention had been to limit tribunals to statutory tribunals, then a similar approach would have been taken in sub-paragraph (viii). In so far as the other references to “tribunal” in s 6 of the Act were concerned, he contended that they were equivocal and did not take the issues any further. He conceded that in context, the reference to the conduct of proceedings before any court or tribunal follows other matters that necessarily concerned the public sector. That did not mean however that the proceedings before a tribunal could only refer to proceedings before a statutory body. If there were proceedings before a domestic tribunal, for example a professional disciplinary body, and compliance with the relevant information privacy principles would prejudice the conduct of proceedings before that body, then the same policy reasons should exempt it from compliance as applied in the case of statutory bodies.
[21] Both Mr McKenzie and Mr Stevens, for the plaintiff, referred me to the decision of Wild J in Commissioner of Inland Revenue v B [2001] 2 NZLR 566. That case concerned the actions of a review officer who was exercising powers delegated from the Commissioner of Inland Revenue for the purposes of making an assessment under Part V1A of the Child Support Act 1991. It was held that in making the assessment, the review officer was performing an administrative and not a judicial function, and accordingly he had not been acting as a review tribunal within the meaning of the definition of “agency” under the Privacy Act.
[22] Wild J did not directly consider whether the review officer was a tribunal, noting at [20] that counsel had accepted that the issue of whether the review officer was acting as a tribunal was to be determined by asking whether he was acting judicially or administratively, that being the emphasis in the definition of “agency” in s 2 of the Act. Wild J also recorded that both parties had agreed that that issue
was to be decided by applying the ten tests formulated by Lord Diplock in the House of Lords in Trapp v Mackie [1979] 1 All ER 489. It will be necessary to discuss Trapp v Mackie later in this judgment. In the present context, Mr McKenzie sought to emphasise that, by focusing on whether the function being performed was a judicial or an administrative one, Wild J was taking a very broad approach to the concept of a “tribunal”.
[23] Mr McKenzie also referred to what Wild J said at [23], namely that the conduct of a hearing by a review officer (as had occurred in that case) was not specifically authorised by law, nor were review officers, as the delegates of the Commissioner of Inland Revenue, constituted by the Child Support Act. Mr McKenzie relied on those observations to submit that Wild J regarded the critical issue before him as being whether the review officer was a tribunal carrying out judicial functions, not whether the review officer was a statutory tribunal.
[24] In the end, Wild J held, as I have noted, that the review officer had been performing an administrative and not a judicial function. However, Mr McKenzie sought to emphasise that Wild J’s reasoning contemplated that the review officer could have been a non-statutory tribunal and within the paragraph (b)(viii) exemption.
[25] Another aspect of Mr McKenzie’s argument was to submit that it would be surprising, as a matter of policy, if legislation as widely framed as the Privacy Act made no provision for excluding from its application the position of significant non- statutory tribunals such as the disciplinary bodies of professional associations, of bodies such as literary, artistic and scientific associations, and member’s clubs, as well as the courts and tribunals conducted by churches which involve not only matters such as membership but also raise doctrinal and theological issues. He referred as an example of a professional body to the Institute of Chartered Accountants of New Zealand. Whilst the Institute was established by the Institute of Chartered Accountants of New Zealand Act 1996, its disciplinary tribunal is only required by s 6 of the Act to be established under the rules of the Institute. Mr McKenzie submitted that it should not be characterised as a statutory tribunal in
those circumstances, and he argued it was doubtful whether it could be described as being a tribunal created under or pursuant to a statute.
[26] He referred to the common law principle that the constitution of a religious body is regarded as a consensual compact binding on the conscience of the individual members. Its provisions are without contractual force, and not justiciable in a civil court, except to the extent that a matter concerning church property governed by statute may be involved: Dodwell v Bishop of Wellington (1886) NZLR
5SC 263; Scandrett v Dowling (1992) 27 NSWLR 483 (NSW COA) and Laws of
New Zealand, vol 23, paragraph 6.
[27] Counsel observed that in more recent cases the Courts have been prepared to determine questions on the basis of contractual or equitable obligations where civil or property rights are involved, but in doing so have refrained from embarking on matters which may require determination of matters of faith or doctrine. He referred to what was said by the Court of Appeal in Mabon v Conference the Methodist Church of New Zealand [1998] 3 NZLR 513, at 523:
Clearly, and reflecting the separation of church and state, Courts must be reluctant to determine what are at heart ecclesiastical disputes where matters of faith or doctrine are at issue. But the Courts will intervene where civil or property rights are involved and can be expected to analyse carefully any argument that conventional incidents of a recognised relationship such as work do not give rise to contractual rights.
[28] Mr McKenzie also referred to observations of Randerson J in Marshall v National Spiritual Assembly of the Baha’is of New Zealand Inc [2003] 2 NZLR 205, at [31]:
Ms Katz reviewed authorities in New Zealand as well as a number of overseas jurisdictions. It is unnecessary for me to examine all the authorities relied upon. They support the proposition that the Courts have traditionally shown a reluctance to intervene where purely spiritual or religious issues are at stake. Such matters are best left to the determination of the institutions of the church or other religious body in question. However, the authorities also show the Courts have been prepared to intervene where civil, economic, or proprietary rights are alleged to have been infringed.
[29] Mr McKenzie submitted that in the absence of any clear statutory direction indicating that churches, courts and tribunals were intended to be covered by the Act,
they should be regarded as being outside the statute in accordance with the long- standing approach of “non-interference” taken by the common law.
[30] Mr McKenzie then turned to a related argument based on s 15 of the New Zealand Bill of Rights Act 1990. That provision is headed “Manifestation of religion and belief”, and reads as follows:
Every person has the right to manifest that person’s religion or belief in worship, observance, practice or teaching, either individually or in community with others, and either in public or in private.
[31] Counsel referred to the observations made in A & P Butler, The New Zealand
Bill of Rights (Lexis Nexis, Wellington, 2005) at paragraph 14.7.1:
Section 15 of BORA affirms the right to manifest one’s religion or belief in worship, observance, teaching, and practice. It needs to be noted that s 15 of BORA, like most of the international human rights instruments, only protects the manifestation of religion and belief, but not thought and conscience. However, this can be explained by the fact that the scope of thought and conscience does not include any form of formal structure. Section 15 of BORA acknowledges and emphasises that the manifestation of beliefs and religions needs special protection since they might be outside general societal behaviour. Section 15 emphasises that the manifestation through worship, observance, teaching, and practice is what distinguishes a religion and belief from thought and conscience. The manifestation of thought and conscience is, of course, protected by s 14 of BORA.
[32] Mr McKenzie submitted that the provision of personal information might have a significant impact on the way in which the proceedings of a church tribunal or disciplinary body were conducted. Although, as I have explained at the outset, the question raised in the case stated by the Human Rights Review Tribunal did not refer specifically to the position of the Catholic Tribunal, Mr McKenzie submitted that the sacrament of marriage forms a very significant part of Catholic, and indeed Christian, belief. In the Catholic Church, dissolution of marriage requires the submission of the issue to the Catholic Tribunal and members of the Catholic faith are bound to conscientiously observe the decisions made by that Tribunal. He contended that in submitting the matter to the Catholic Tribunal, a person submits to the jurisdiction of that Tribunal and its particular processes, including in this case the practice of that Tribunal in relation to matters which affect the disclosure of any proceedings before that body. Thus, he contended, the rights affirmed by s 15 of the Bill of Rights Act were engaged by the present dispute.
[33] Amplifying his submission, he argued that it might often be necessary in the course of an inquiry made by such a tribunal to put to an individual concerned statements made by some other person, such as an estranged spouse, to which it would be very damaging to provide wider circulation in a different context, where the community generally might have a different perspective on marriage or issues of morality. He argued that it would seriously hamper such tribunals in the conduct of their proceedings and perhaps also inhibit their freedom to conduct those proceedings in a manner which was consistent with the teaching of the Church, if there were a risk of the transcript or minutes taken at the proceeding or notes taken by the presiding person being amenable to a request for disclosure under the Privacy Act.
[34] From that foundation, he turned to s 6 of the New Zealand Bill of Rights Act and its rule that wherever an enactment can be given a meaning that it is consistent with the rights and freedoms contained in the Bill of Rights, that meaning is to be preferred to any other meaning. In the present case, that meant that the interpretation of “tribunal” which resulted in the least possible limitation on the s 15 rights, should be adopted.
[35] On the second aspect of the question posed in the case stated, what criteria (if any) a non-statutory tribunal would need to satisfy so as to qualify as a “tribunal” in terms of the exclusion in paragraph (b)(viii) of the definition of “agency”, Mr McKenzie submitted that it would be sufficient if the body exercised judicial functions. He relied on the statement of Lord Atkinson in Frome United Breweries Co Ltd v Bath Justices [1926] AC 586, at 602, where reference was made to the Irish case of R (John M’Evoy) v Dublin Corporation (1878) 2 L.R.Ir 371. Lord Atkinson said that that case contained one of the best definitions of a judicial act as distinguished from an administrative act:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term “judicial” does not necessarily mean acts of a judge or a legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.
[36] In accordance with that dictum, Mr McKenzie submitted that a domestic tribunal, acting under constituted authority, with power to inquire, receive and adjudicate upon evidence, and to give a decision which finally determined the rights of the parties, would be exercising judicial functions so as to come within paragraph (b)(viii) of the definition of “agency” in the Act.
The plaintiff’s argument
[37] The principal submission advanced by Mr Stevens as to the meaning of paragraph (b)(viii) was that to be within its ambit a tribunal had to be a body “recognised by law”. In advancing that submission, he relied on both Commissioner of Inland Revenue v B, and Trapp v Mackie.
[38] In Trapp v Mackie, the House of Lords had to determine whether or not absolute privilege attached to an allegedly defamatory statement made at a “local inquiry” held pursuant to the Education (Scotland) Act 1946 (UK). That depended, under the common law, on whether the inquiry was a tribunal recognised by law.
[39] It had been held at first instance and on appeal that the allegedly defamatory remarks had been spoken on an occasion of absolute privilege, an outcome affirmed in the House of Lords. Lord Diplock based his conclusions on the facts that the inquiry in question had been “authorised by law”, having been constituted pursuant to an Act of Parliament; that it was inquiring into an issue in dispute between adverse parties of a kind similar to issues that commonly fall to be decided by courts of justice; the inquiry had been held in public; decisions as to what evidence should be led and what documents should be tendered were left to the contending parties; witnesses were compellable under penal sanction to give oral evidence or to produce documents; oral evidence was given on oath; there was cross-examination; the parties were represented by legally qualified advocates or solicitors; the opinion of the tribunal conducting the inquiry as reported to the Secretary of State would have a major influence on the Secretary’s decision; and that as a result of the report, either of the parties to the inquiry might be ordered by the Secretary to pay costs.
[40] Mr Stevens submitted that the privilege of witnesses before courts of law is grounded in the public interest that witnesses should give their evidence free of inhibition by the prospect of actions in defamation or malice that might otherwise follow their giving of evidence. He contended that the exclusions from the definition of “agency” in the Privacy Act followed a similar assessment of where the public interest lay. Putting that another way, his argument was that the exceptions essentially had the same “public interest” purpose as the common law privilege afforded to evidence given before certain tribunals in accordance with the criteria discussed in Trapp v Mackie. Such a privilege would not be granted unless the tribunal was one “recognised by law”. Lord Diplock referred to that requirement at
492 when he said:
To attract absolute privilege for the testimony of witnesses the tribunal, by whatever name it is described, must be “recognised by law”, a phrase first used by the Court of Exchequer Chamber Dawkins v Lord Rokeby (1873) LR
8 QB 255 at 263. This is a sine qua non; the absolute privilege does not attach to purely domestic tribunals. Although the description “recognised by
law” is not necessarily confined to tribunals constituted or recognised by Act of Parliament (see Lincoln v Daniels [1962] 1 QB 237), it embraces all that
are, and so includes the local inquiry in the instant case at which the respondent’s evidence was given.
[41] Mr Stevens submitted that the only tribunals that common law jurisdictions have ever found to be “recognised by law” without being constituted or recognised by Act of Parliament were the disciplinary committees of benches of the English Inns of Court, considered in Lincoln v Daniels [1962] 1 QB 237, to which Lord Diplock referred. That, of course, was a very special case where the disciplinary power was invariably exercised by judges, who derived their authority from the Crown. Mr Stevens referred to the observations made by Devlin LJ at 255:
A private institution, such as a club, may set up a body to determine questions of admission or expulsion and it may be composed entirely of lawyers and may follow with exactitude the procedure of a Court of law. But absolute privilege is granted only as a matter of public policy and must therefore on principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed. The public is not interested in the membership of a private club. The significance of the third requirement – that the Court or tribunal should be recognised by law – is that it shows that the public is interested in the matter to be determined by the Court.
[42] Mr Stevens contended that the disciplinary committees of the Inns of Court were a special case which should not be allowed to detract from the general proposition that in order to be caught by the exclusion in paragraph (b)(viii), the tribunal must be a statutory body.
[43] Mr Stevens also emphasised the evidence as to the statutory purpose behind the Privacy Act’s conferral on individuals of the rights to obtain personal information about them from the agency which holds the information. He pointed out that the origin of the right had been in the Official Information Act 1982, but it had applied only in relation to public sector bodies. When the Privacy Act came into force, the Official Information Amendment Act 1993 provided that a request by a natural person for access to personal information about him - or herself would be deemed to be a request made under principle 6 of the Privacy Act. Exceptions which had existed to the right of access under the Official Information Act had been largely transferred to the Privacy Act. There had been a similar exemption for courts, and in relation to their judicial functions, Tribunals. The term “a Tribunal” was not defined in the Official Information Act but could not have referred to private bodies because of the limited ambit of the Official Information Act. It appeared to be common ground between counsel that nothing turned on the changed reference in the Privacy Act to “a tribunal”, (the lower case was adopted) but Mr Stevens argued that the Court would need cogent and compelling reasons of principle if it were to find the exclusion in the Privacy Act had a different and much wider ambit than the corresponding exclusion that had applied under the Official Information Act.
[44] Another plank of the plaintiff’s argument rested on the nature of the legislation. Mr Stevens referred to the 1948 Universal Declaration of Human Rights, and its reference to arbitrary interference with privacy in Article 12. He referred also to Article 8 of the Charter of Fundamental Rights of the European Union (2000) which provides for the protection of personal data and, amongst other things, states that everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
[45] Mr Stevens also referred to the fact that the Privacy Commissioner can refer privacy complaints to the Director of Human Rights proceedings for the initiating of
proceedings in the Human Rights Review Tribunal, which indeed had been the genesis of the present proceeding.
[46] He argued in the circumstances that the Act should be interpreted and applied as human rights legislation, and in that context referred to the dictum of Sopinka J in Zurich Insurance Co v Ontario (Human Rights Commission) [1992] 2 SCR 321:
In approaching the interpretation of a human rights statute certain special principles must be respected. Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a “special nature” not quite constitutional but certainly more than the ordinary
….” One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the
last protection of the most vulnerable members of society, exceptions to such
legislation should be narrowly construed.
[47] On this basis, Mr Stevens argued that any exception to the application of the Act should be narrowly construed. The Courts should be slow to adopt a meaning which limits the rights and protections given in the legislation. In a related argument, Mr Stevens argued that the rights conferred by the Privacy Act were not to be abrogated or restricted simply because they were not contained in the New Zealand Bill of Rights Act (relying on s 28 of that Act). He developed that argument by reference to the dissenting judgment of Thomas J in Brooker v Police [2007]
3 NZLR 91 at [149] ff. He submitted that there was in fact a wide ranging right to privacy, or fundamental value of privacy, of such importance that even an individual right explicitly referred to in the New Zealand Bill of Rights Act ought to be balanced against the right to privacy. However, Mr Stevens rejected any suggestion that confining the word “tribunal” to tribunals recognised by law would be inconsistent with the right of an individual to manifest his or her religion or belief. Even if Mr McKenzie’s submission that a church tribunal might be seriously hampered in the conduct of its proceedings in a manner consistent with the teachings of the church were accepted, he contended that that would be a far cry from asserting that there would be any limitation upon any individual’s right to manifest their religion or belief as a consequence.
[48] In the result, Mr Stevens argued that the word “tribunal” was not properly capable of bearing the wide meaning contended for by the defendant; to adopt such
a wide approach would substantially detract from its appropriate interpretation given the statute’s evident intention. It had not been shown that the meaning contended for by the plaintiff would limit the right of any individual to manifest his or her religion or belief. There was no warrant in the circumstances to apply s 6 of the New Zealand Bill of Rights Act so as to arrive at the interpretation for which the defendant contended.
Discussion
[49] The question raised by the case stated is not one which has an obvious answer, or at least not one which is to be easily arrived at. As can be seen from the summary I have given of the arguments made by counsel there is merit in the position adopted by both parties. In the end, it is the accumulation of a number of considerations rather than any one which is of decisive significance which has led me to the result which I favour.
[50] Although both parties have purported to rely on rights as an aid to interpretation, whether expressed in the New Zealand Bill of Rights Act 1990 or lying outside it, the surest basis on which to proceed is to follow the rule set out in s
5 of the Interpretation Act 1990. Under s 5(1), the meaning of an enactment must be ascertained from its text and in the light of its purpose. I have earlier summarised in some detail the arguments advanced by Mr McKenzie based upon the text of the Privacy Act, but in particular the definition of “agency” in s 2(1). Ultimately, I have not been persuaded that his arguments based on the text should carry the day.
[51] Paragraph (a) of the definition of “agency” is very broad, extending to any person or body of persons, be they incorporated or not and be they in the public or private sectors. I do not see, however, that it necessarily follows that “clear words” would be needed, as Mr McKenzie submitted, for any of the bodies or persons excluded by paragraph (b) to be limited to public bodies.
[52] The list in paragraph (b) of the definition is, I think, distinguished by its emphasis on public bodies or organs of the executive or Government. It commences with the Sovereign, proceeds to the Governor-General or administrator of the
Government, mentions next the House of Representatives, then members of Parliament acting in their official capacity, the Parliamentary Service Commission, the Parliamentary Service, courts, tribunals, the Ombudsman, Royal Commissions, other commissions of inquiry appointed pursuant to statutory provisions, and only at the end, in sub-paragraph (xiii) does it refer to news media which, of their nature, may, of course, be either publicly or privately owned.
[53] Consequently, although sub-paragraph (viii) looked at in isolation might arguably be thought to extend to tribunals which were both public and private in their constitution, that is not the result that one naturally arrives at when the sub- paragraph is viewed in the context of paragraph (b) as a whole. With respect, I do not consider that there is anything in the judgment of Heron J in Arbitrators’ Institute of New Zealand Inc v Legal Services Board [1995] 2 NZLR 202, to which Mr McKenzie referred which is of assistance in the present context. It can be accepted that sub-paragraphgraph (viii) of the definition is intended to refer to bodies carrying out judicial functions other than Courts. That does not mean, however, that the tribunals in question may be privately constituted.
[54] Nor do I think Mr McKenzie’s argument that where, in paragraph (b), the draftsman intended to refer to statutory bodies, there was a reference to legislation, as in sub-paragraphs (xi) and (xii), takes the defendant very far. The Courts in New Zealand are established pursuant to statutory provisions, but there is no reference to that in sub-paragraph (viii). The House of Representatives is itself constituted under an Act of Parliament, Royal Commissions are appointed pursuant to statute, and the position of Ombudsman is a statutory role. In the end, none of Mr McKenzie’s points based upon the wording of the definition of “agency” itself leads to the outcome for which he contended.
[55] As has been seen, the word “tribunal” also appears within s 6, in the case of four of the information privacy principles. I have earlier set out the words used in paragraph (2)(d) of principle 2, which deals with the “source of personal information”. Mr McKenzie argued that the reference to “tribunal” in this provision was “equivocal”. He accepted, however, that the other matters referred to in paragraph (d) were matters that necessarily related to the public sector. I agree that
that is the case. I would go further, however, and discern in the four sub-paragraphs a clear emphasis on public law. The matters mentioned are avoiding prejudice to the maintenance of the law by any public sector agency, the enforcement of a law which imposes a pecuniary penalty, protection of the public revenue, and finally the conduct of proceedings before any Court or tribunal. I regard it as unlikely that by the time the word “tribunal” was reached at the end of these series of provisions, the legislature intended what would have been a change of course, so as to embrace both publicly and privately constituted tribunals. Indeed, I think it more likely that, had that been Parliament’s intent, there would have been an expanded reference to tribunals either here, or within paragraph (b) of the definition of “agency” in s 2(1), to make that plain. It should also be noted that after sub-paragraph (viii) the list continues to refer to public offices of various kinds right until the final sub- paragraph.
[56] As I have mentioned, the equivalent of paragraph (d) in Information Privacy Principle 2, appears in Principle 3, Principle 10 and Principle 11. Plainly, the word “tribunal” must carry the same meaning in all these principles, and also have the same meaning in the definition of “agency”.
[57] I conclude for these reasons that most of the indications in the text of the relevant provisions of the Privacy Act favours the conclusion that the word “tribunal” is used so as to refer to bodies with a judicial function which are recognised by law and likely therefore to be created either directly by a statute or pursuant to a statute.
[58] From a consideration of the provisions already mentioned, I turn next to the title. As I mentioned right at the outset, the Act aims to promote and protect individual privacy and in particular to establish certain principles with respect to, first, the collection, use, and disclosure, by public and private sector agencies, of information relating to individuals. Secondly, its purpose is to establish certain principles with respect to access by individuals to information relating to them, which is held by public and private sector agencies.
[59] The wording used emphasises the application of the principles contained in the Act to information that is held by both public and private sector agencies. Paragraph (a) of the definition of “agency” is consistent with the statutory purpose by virtue of its breadth. The wider the definition of “agency”, of course, the greater the extent of the rights conferred on individuals by the Act. I consider that it is legitimate to argue, as Mr Stevens did, that an interpretative approach which confines the scope of the exclusions to the definition of “agency” within narrow grounds will best advance the purposes of the Act. Such an approach sits comfortably with the international instruments to which Mr Stevens referred and it is to be noted also that the long title to the Privacy Act itself referred to the promotion and protection of individual privacy “in general accordance with the Recommendation of the Council of the Organisation for Economic Co-operation and Development Concerning Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data …”. Thus the rights set out in the Privacy Act may be seen not only as an important measure of domestic law, but as part of the international recognition of “privacy” rights across the broad spectrum of rights embraced by that term (see the discussion by Thomas J in Brooker v Police at [215]- [218]). These considerations support the outcome that I have already derived from the text of the substantive provisions of the Privacy Act. That conclusion is also consonant with the application of the law set out in Trapp v Mackie and applied by the Court of Appeal in Tertiary Institutes Allied Staff Association Inc v Tahana [1998] 1 NZLR 41 and by Wild J in Commissioner of Inland Revenue v B.
[60] However, I agree with Mr McKenzie that the present case plainly arises in a different context from both Trapp v Mackie and Tertiary Institutes Allied Staff Association Inc v Tahana, where the issue was whether statements were made on occasions which attracted absolute privilege. There is force in Mr McKenzie’s submission that a stricter approach would be requisite to the definition of the kind of body whose proceedings would be absolutely privileged, than would be appropriate in the context of the Privacy Act. As I understood his argument, he submitted that in any event, because of the different policy considerations that would apply, the principles arising from the cases concerning absolute privilege ought not to be of direct relevance here.
[61] I think Mr McKenzie was also correct when he submitted, in effect, that the issue of the relevance of those principles to cases arising under the Privacy Act went rather by default in Commissioner of Inland Revenue v B, where, as has been seen, Wild J, with the agreement of the parties, did not directly confront the issue of whether the review officer was a “tribunal”. He applied the Trapp v Mackie tests instead to the question of whether the review officer had been acting judicially or administratively.
[62] These points can all be accepted. However, it can also be said that the exclusion of privately constituted tribunals from the ambit of paragraph (b)(viii) would be in conformity with the approach in Trapp v Mackie and there is unlikely ever to arise in New Zealand an exceptional case with the special facts of Lincoln v Daniels. I observe too that although in Commissioner of Inland Revenue v B the review officer conducted a hearing which was not specifically authorised by law and nor was he formally appointed under the Child Support Act, it is nevertheless plain that the inquiry embarked upon was a statutory inquiry. I do not think the facts of that case support the defendant’s argument here.
[63] Nor have I found persuasive the policy arguments advanced by Mr McKenzie in support of the defendant’s approach. In so far as they concern disciplinary committees or “tribunals” of professional bodies, I do not accept his proposition that it is unlikely that the legislature intended such bodies to be subject to the Act. Indeed, I consider that the reverse is true. It is certainly not difficult to imagine circumstances in which information about a person might be given to such a body with the resultant creation of a very real and legitimate interest in that individual to know what the information is.
[64] Turning then to the position of the disciplinary committees of associations and members’ clubs, I can once again see no policy reason for excluding such bodies from the definition of “agency”. In this case too it is not difficult to imagine situations where it might be of vital interest to an individual to know what information such a body is holding in relation to them. Mr McKenzie did not present a persuasive argument that the application of the Act’s provisions would cause any real practical difficulty.
[65] So far as Church tribunals are concerned, once again I have not been persuaded that there are any real policy justifications for their exclusion from the definition of “agency”. Mr McKenzie is quite correct in his summary of the common law principles under which the Courts have declined to become involved on matters which touch the private or domestic procedures of religious organisations. There is an even greater reluctance to become involved in issues that are at heart ecclesiastical disputes or disputes involving matters of faith and doctrine. However, as Randerson J observed in Marshall v National Spiritual Assembly of the Baha’is of New Zealand Inc, the Courts have been prepared to intervene “where civil, economic or proprietary rights are alleged to have been infringed”.
[66] It is but a small step from that recognition to a situation such as the present where what is at stake is the application of general provisions aimed to protect the privacy of individuals by, amongst other things, entitling those individuals to have access to information held about them (Information Privacy Principle 6) and in appropriate cases to request its correction (Principle 7). It is unclear to me how making a body such as the Catholic Tribunal subject to the provisions of the Privacy Act would raise any issue of doctrine or belief, or in any real sense hamper the proper functioning of that body.
[67] I accept that the sacrament of marriage, and steps that must be taken to dissolve a marriage, are matters which are central to the doctrines of the Roman Catholic Church. Mr McKenzie submitted that it would often be necessary in the course of an inquiry by such a Tribunal to put statements to an individual that have been made by another person, such as an estranged spouse, to which it would be very damaging to provide wider circulation. He did not, however, explain how the “damage” would arise. I find it difficult to see how making available to an individual information that she has requested about herself can raise any implications which might affect religious belief or its manifestation or any issue of Church doctrine. Such matters would remain within the safe keeping of the Tribunal concerned, unless published by the individual herself.
[68] For these reasons, I have also not been persuaded that s 15 of the New
Zealand Bill of Rights Act 1990 is in fact engaged on the present facts. As I see the
case, a person’s right to manifest his or her religion or belief in “worship, observance, practice or teaching” would not be threatened in any way by application of the provisions of the Privacy Act. This means that there can be no resort to s 6 of the New Zealand Bill of Rights Act to bolster the defendant’s interpretative argument, either.
[69] I conclude that there is no compelling argument of policy which should place “church tribunals” in a special position any more than there is such an argument favouring the exclusion of the disciplinary bodies of professions or other private associations. The conclusions that I have earlier expressed based upon the wording of the statute and its purpose all favour the inclusion of such bodies within the definition of “agency”, and tend against their exclusion as “tribunals” under paragraph (b)(viii).
[70] Before giving my answer to the question raised by the case stated, I mention another matter about which I have been concerned, but which was not raised in argument. For that reason, I have not based my judgment on it, but it is a consideration which supports the conclusion that I have reached on the grounds already set out. The concern is that the defendant’s argument depends upon a distinction being drawn between the defendant itself, and the entity known as the Catholic Tribunal. The argument has, of course, proceeded in general terms, and a similar distinction would be necessary between a society incorporated as a body corporate and some special committee set up as part of that overall structure to deal with special tasks. Those tasks might include expulsion from membership or other disciplinary matters.
[71] If what might be termed the “parent” organisation is itself captured by the broad definition of “agency”, it is unclear what justification there might be for isolating out and treating as a separate entity a body set up within that overall entity for the purpose of performing a particular function. There is no doubt that paragraph (a) of the definition of “agency” would extend to such a body. The defendant’s argument has it first being caught by paragraph (a), and then excluded by paragraph (b). Apart from the requirement that that body perform “judicial functions”, expressed in paragraph (b)(viii) of the definition, there would be no other limitation
on the ability of the parent body to carve out a segment of its affairs for exemption from the provisions of the Privacy Act. It seems to me that would be wrong as a matter of principle. Further, I cannot see how it can be legally achieved by resort to private rule-making powers. In my view, if the parent organisation is within the definition of “agency”, then so must the entities that it establishes under its aegis, given that they are not separate corporate entities.
[72] My conclusion, however, does not rest on that point. Rather, it follows from my resolution of the arguments that were addressed by the parties at the hearing, for reasons that I have endeavoured to explain.
Result
[73] I therefore answer the question raised by the case stated by expressing my opinion that the word “tribunal” in paragraph (b)(viii) of the definition of “agency” in s 2(1) of the Privacy Act is not capable of applying to a non-statutory tribunal.
[74] Having given that answer, it is unnecessary and inappropriate for me to consider what criteria such a non-statutory tribunal would have to satisfy.
[75] If there is any issue as to costs and agreement cannot be reached, I will receive memoranda from counsel.
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