Dialogue: Privacy laws should focus more on our right to know

To know or not to know, that is the question. Striking the correct balance between an individual's right to privacy and the public's right to know will always be difficult. Led by the courts, the pendulum today is swinging in the public's favour, some would say correctly so.

Defendants are increasingly being refused name suppression. First there was the American billionaire who got name suppression after importing illegal drugs during the America's Cup. After a Herald campaign, the Court of Appeal ordered that his name be disclosed.

Lately, a High Court judge challenged a widely held understanding that first-time offenders should receive name suppression as part of the police diversion scheme. Justice Bruce Robertson reconfirmed the fundamental proposition that "what goes on in courts is done in public."

Last week, a television documentary questioned whether the Family Court should continue automatically to exclude the public.

There are certainly merits in opening up the Family Court to public scrutiny. If some parents knew their custody battles were to be heard in public, they might try harder to work out solutions for themselves.

True, safeguards need to be available when publicity would harm the lives of children. But this should not be used as an excuse to retain secrecy as of right in the Family Court.

The adage - justice must not only be done, but must be seen to be done - is happily alive and well. But the privacy debate is not limited to our courts. The reassertion of transparency and openness in the administration of justice provides an opportunity to re-examine our privacy laws generally.

The Privacy Act has resulted in universities and schools no longer publishing examination results. Under the act, parents have also been refused information about medical conditions affecting their children.

Employers are reluctant to give references for their former employees and are often nervous to probe too deeply into a prospective employee's background for fear of breaching the privacy or human rights legislation.

This has on occasions resulted in someone with a record of dishonesty being hired to a position of trust. There have been instances where personal information about previous sexual predilections has not surfaced, resulting in totally unsuitable people being employed at daycare facilities and schools.

Contrast these unsatisfactory examples of non-disclosure with long-established insurance law principles, where there is a positive duty to disclose relevant information.

Consequently, an insurance company can avoid any policy if the insured fails to tell the insurer of all the circumstances relevant to the risk.

If you want income-protection insurance, for example, full disclosure of all your medical and personal conditions is required. Yet similar principles do not apply to new employees looking for a job. In fact, the rule seems to be the opposite: silence is golden.

It makes no common sense at all. And it is surely an example of our privacy laws actively working against the overall social good and protecting the wrong person.

What has been governments' response to this imbalance between private rights and society's interest?

Despite having passed the legislation, successive governments have then exempted themselves from its worst excesses. Information swapping between Government departments is increasing.

The identification by ACC of repeated accidents suffered by a child and alerting Child, Youth and Family Services is sensible. Disclosing such information could save young lives, and surely outweighs an individual's right to privacy.

The Inland Revenue Department has huge powers, which override all normal rules of privacy, to gather information, assess tax and impose penalties.

Internal Affairs can investigate internet users to discover illegal child pornographic rings and the like.

Work and Income should be checking before paying benefits to people who owe back taxes or unpaid fines.

It is only common sense that the various arms of the Government now exchange information regularly. But surely it is time to draw these threads together. The same principles which have resulted in greater transparency in the courts and more information-swapping within Government agencies should be applied to ordinary New Zealanders.

It is needed to dispel a bias which has developed and which unduly emphasises the privacy of individuals above the public's right to know.

This is particularly true for employers who need to be given more flexibility to gain important information about the background of prospective employees.

We are making good progress towards a more open justice system and towards more open government. It is high time to review our privacy laws and get the balance right for the rest of New Zealand.

* Patricia Schnauer, a former Act MP, is a lawyer.