Hudson v Attorney-General

[2020] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-890

[2020] NZHC 1622

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review, the Privacy Act 1993 and Corrections Act 2004

BETWEEN

STEPHEN THOMAS HUDSON

Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing:	8 June 2020
Appearances:	Applicant in person (via AVL) J B Watson for respondent
Judgment:	8 July 2020

RESERVED JUDGMENT OF DOBSON J

[Respondent’s application to dismiss the proceeding]

[1]    In November 2018, Mr Hudson commenced this proceeding alleging that on various occasions in 2016 to 2018 the Department of Corrections on whose behalf the respondent is sued (the Department), when responding to requests for personal information under the Privacy Act 1993 (the Act), had failed to provide prisoners with advice of their right to request correction of any personal information maintained about them. In addition to alleging that an omission to provide that advice amounted to breaches of relevant privacy principles in the Act, Mr Hudson also claimed that the omission amounted to unfair conduct for the purposes of ss 6(1)(f)(i) and (ii) of the Corrections Act 2004.

HUDSON v THE ATTORNEY-GENERAL [2020] NZHC 1622 [8 July 2020]

[2]    The Department applied to dismiss the proceeding, having filed an appearance under protest to jurisdiction. The grounds for seeking dismissal were that the Information Privacy Principles (IPPs) in the Act (other than IPP 6(1), which was not relevant to the pleaded complaints) do not create rights enforceable in a court of law. Nor, on the Department’s argument, could alleged failures to comply with IPPs amount to a breach of a different statute, namely the Corrections Act.

[3]    The IPP relevant to Mr Hudson’s complaint is principle 6 as set out in s 6 of the Act in the following terms:

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), 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.

[4]    The status of s 6 principles is addressed in s 11 of the Act in the following terms:

11       Enforceability of principles

(1)The entitlements conferred on an individual by subclause (1) of principle 6, in so far as that subclause relates to personal information held by a public sector agency, are legal rights, and are enforceable accordingly in a court of law.

(2)Subject to subsection (1), the information privacy principles do not confer on any person any legal right that is enforceable in a court of law.

[5]    The Act has its own comprehensive scheme for considering complaints of breaches of the IPPs, which the Court of Appeal has treated as having an emphasis on

investigation, conciliation and settlement, rather than litigious disputes.1 The statutory process involves complaints to the Privacy Commissioner, with a right of appeal from decisions of the Privacy Commissioner to the Human Rights Review Tribunal (HRRT).2 It was argued for the Department that because the latter step had not occurred, the Court did not have jurisdiction to entertain an allegation of reviewable error by the Department.

[6]    The Court may become involved by way of appeal from decisions of the HRRT, which right arises under the provisions of the Human Rights Act 1993. In such appeals, the Court sits with two lay members drawn from the panel of HRRT members who have thus far not been involved in the case.3

[7]    In this case, another prisoner, whose experience Mr Hudson was citing, had pursued a complaint to the Privacy Commissioner, resulting in a decision conveyed in September 2018 that the Privacy Commissioner would not conduct a formal investigation.

[8]    Mr Hudson argued that he could not take the complaint any further within the statutory process because he treated s 82 of the Act as requiring an investigation to have been completed by the Privacy Commissioner as a pre-requisite. The relevant parts of ss 82 and 83 of the Act are as follows:

82Proceedings before Human Rights Review Tribunal

(1)This section applies to any person—

(a)in respect of whom an investigation has been conducted under this Part in relation to any action alleged to be an interference with the privacy of an individual; or

(b)in respect of whom a complaint has been made in relation to any such action, where conciliation under section 74 has not resulted in a settlement.

(2)Subject to subsection (3), civil proceedings before the Human Rights Review Tribunal shall lie at the suit of the Director of Human Rights Proceedings against any person to whom this section applies in respect

1      R v King [2008] NZCA 79, [2008] 2 NZLR 460 at [40]–[42].

2 At [41].

3      Human Rights Act 1993, s 126.

of any action of that person that is an interference with the privacy of an individual.

…

83Aggrieved individual may bring proceedings before Human Rights Review Tribunal

Notwithstanding section 82(2), the aggrieved individual (if any) may himself or herself bring proceedings before the Human Rights Review Tribunal against a person to whom section 82 applies if the aggrieved individual wishes to do so, and—

(a)the Commissioner or the Director of Human Rights Proceedings is of the opinion that the complaint does not have substance or that the matter ought not to be proceeded with; or

(b)in a case where the Director of Human Rights Proceedings would be entitled to bring proceedings, the Director of Human Rights Proceedings—

(i)agrees to the aggrieved individual bringing proceedings; or

(ii)declines to take proceedings.

[9]    Mr Watson’s submission in support of dismissal was that Mr Hudson was proceeding on an interpretation of ss 82 and 83 that was narrower than the wording contemplated, as evidenced by established practice. That is, that a refusal by the Privacy Commissioner to undertake a formal investigation in response to a complaint is itself treated as a decision triggering the prospect of proceedings before the HRRT. It would follow that Mr Hudson or other prisoners with the same complaint still had rights to pursue such complaints within the statutory procedure, and to the exclusion of the High Court’s jurisdiction in judicial review, because the IPP in issue is not one that affords legal rights enforceable in the High Court.

[10]   After a number of exchanges with Mr Hudson in light of Mr Watson’s submissions, Mr Hudson conceded that there was an avenue open to him under the procedures in the Act that had not been pursued.

[11]   The Court is instinctively cautious about recognising statutory provisions that are relied on as privative provisions to exclude its jurisdiction. In the judicial review context, the Court generally remains available to exercise its supervisory jurisdiction over the exercise of statutory powers. However, the Act provides a code for dealing

with personal information, including complaints about the manner in which organisations control personal information, which is intended to be self-contained to an extent that I am satisfied should not allow for judicial review in the circumstances advanced by Mr Hudson in this case. I am satisfied that, to the extent that issue is raised by the pleading, the Department is entitled to have it dismissed.

[12]   Mr Hudson also pleaded that cl (1)(c) of s C.04.01 in the Prisons Operations Manual (POM) was inconsistent with, and arguably ultra vires, the Act. That provision materially provides:

Prisoners have the following rights in relation to their personal information … the right to request corrections to the personal information held, or (when a correction is requested but not made) the right to attach to that information a statement from the prisoner noting that a request to correct was sought but not made.

[13]   Mr Hudson considered that the terms of that provision had altered the intent of IPP 7(3), which he discerned to be expressed in materially different terms. IPP 7(3) provides:

Principle 7

Correction of personal information

…

(3)Where an agency that holds personal information is not willing to correct that information in accordance with a request by the individual concerned, the agency shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the information, in such a manner that it will always be read with the information, any statement provided by that individual of the correction sought.

…

[14]   Mr Hudson wished to argue that the POM provision could be complied with by an acknowledgement of the request but not inclusion of the version sought by the prisoner to correct the personal information. In contrast, IPP 7(3) explicitly obliges such a statement to include the correction sought by the individual.

[15]   Mr Hudson’s expectation that the POM must necessarily mirror exactly the terms of IPP 7(3) depends on characterising the procedures stipulated in IPP 7(3) as

legally enforceable obligations. Instead, they are aspirational. In any event, the terms from statements made by prisoners who have requested correction of personal information that prison authorities do not comply with would ordinarily encompass the terms of the correction that had been requested.

[16]   This challenge would also have faced legal difficulties in making out a basis on which delegated instruments promulgated under the terms of the Corrections Act and therefore necessarily being consistent with the purposes and principles of that Act, fall outside the vires of that empowering legislation by virtue of a deemed inconsistency with an aspirational standard in another statute (that is, the Act).

[17]   I am satisfied that this alternative argument is also untenable and the Department is entitled to have it dismissed.

[18]   On the basis of my exchanges with Messrs Watson and Hudson, I indicated at the end of argument that the application to dismiss would be granted, and I now do so on the basis of the above reasons.

[19]There will be no order as to costs.4

Dobson J

Solicitors:
Crown Law, Wellington for respondent

Copy to:
The applicant

4      The application to dismiss this proceeding was argued efficiently on the same day as another application for judicial review brought by Mr Hudson: Hudson v Attorney-General [2020] NZHC 1608.