Editorial: Balancing private and public rights

In some ways, life has come full circle for Bruce Slane, the outgoing Privacy Commissioner. His office was set up 11 years ago to shield individuals from the encroaching eye of the state. In those days, most of the threat was perceived to come from new electronic technologies. Today, the encroachment that concerns him comes just as much in a human form, as politicians clamber over each other to look tough on crime.

One of the commissioner's particular beefs is a bill that gives police the power to take DNA samples from a far greater range of criminal suspects than police asked for. Mr Slane worries that the dragnet will become so wide that innocent citizens will be ensnared. As reported in the Weekend Herald, his comments have been derided as "politically correct" by United Future MP Marc Alexander, the deputy chairman of Parliament's law and order select committee. If, according to Mr Alexander, innocent people's rights are infringed in a crackdown against crime, so be it.

That, in itself, is an eloquent testimony to the ongoing requirement for a Privacy Commissioner. Equally, it locates Mr Slane where he should be - defending the boundaries of privacy from what he sees as unnecessary state intrusion. It was not always so during his watch. The work of his office should always involve balancing the privacy of the individual against public need. Often, it seemed that privacy was accorded undue weight.

At times, this meant it became the enemy of public interest. The right to privacy interfered with the publication of matters of obvious - and what should have been overriding - public importance, especially regarding people in positions of power. In other instances, worthy privacy-code initiatives by Mr Slane in the likes of healthcare information were hijacked by authorities with a penchant for secrecy. Privacy rules became a cloak. They were misused, for example, to fob off requests for patient welfare information. This was not, and never will be, an area of privacy concern. The difficulty was compounded by the absence of a countervailing office to right the balance. While the Privacy Commissioner defended the boundaries of privacy, there was not, and still is not, a similar independent authority to defend the public's right to know.

By force of circumstances, however, Mr Slane's focus has swung back to defending the right to privacy, rather than seeking to extend its orbit. September 11 was the catalyst for intelligence agencies gaining more power to monitor people's movements and communications. In New Zealand, the state's hand was strengthened by the Terrorism Suppression Act, a measure to be complemented by the Counter-Terrorism Bill, which allows the police to force suspects to open their computers, revealing their passwords, pin numbers and encryption codes. Mr Slane has warned of unprecedented snooping, and, quite correctly, has sought to ensure that those who use such powers are accountable.

Pertinently, he has also noted that privacy is vulnerable to measures which may be imposed for what seem good reasons at the time - but which, in fact, go further than absolutely necessary. This opens the door for the abuse of extended state powers once, say, a terrorism threat ends. The same concern is driving his criticism of those politicians eager to win kudos from those in the public eager for a tougher line against crime.

That climate, and other transient factors, could make us accept things we would previously have resisted. Certainly, September 11 changed our attitude to security imperatives. Equally, however, we are also more aware of our rights to privacy - and when they are being compromised. That is a reasonable balance, and a reasonable outcome, after an errant turn or two in the Privacy Act's first decade.