Academic journal article New Zealand Journal of Employment Relations (Online)

Privacy Law Reform in New Zealand: Will It Touch the Workplace?

Academic journal article New Zealand Journal of Employment Relations (Online)

Privacy Law Reform in New Zealand: Will It Touch the Workplace?

Article excerpt


The Privacy Act 1993 is currently in the process of being amended in light of some of the Law Commission's recent review recommendations.1 The short answer to the question posed in the title of this paper is 'probably not'. This would be disappointing, because privacy interests often raise important and difficult issues in the workplace. In particular, the collection of information about workers in relation to their private lives and their on-the-job conduct will continue to be a flashpoint at the employment law / privacy law interface, and this is only likely to increase as technology develops new ways of collecting and analysing such information.

The issue is whether or not the law is ever going to step in to set some firm limits. While there is legal support for business and managerial prerogative, and excitement over new technological developments that can have workplace applications, the fact that workers might have any privacy rights is generally regarded as a subsidiary matter, if it is regarded at all. And yet New Zealand is legally bound to give substance to the right to privacy, as provided for under art 17 of the International Covenant on Civil and Political Rights 1966 (ICCPR):2

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

While it is true that inroads can be made into some human rights with the individual's consent, such as the right to privacy, agreeing to be an employee does not mean that individuals have completely surrendered the right. Interference with privacy must not be "arbitrary". This means that there must be some reasonable basis for employer inroads into the right, and that the interference itself must be reasonable.3

Moreover, while individuals may in law consent to intrusions into their personal sphere, it is usually because refusal is not a practical option. In addition to being bound by the ICCPR, New Zealand also has a Privacy Act:4 promote and protect 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 (OECD Guidelines).

The standards set out in this instrument, however, have been implemented in New Zealand law in a way that is highly flexible, and that tends to be balanced more towards the employer's rather than the employee's benefit. This could be due to the value our society places on material or quantifiable, as opposed to intangible, interests, as well as the political influence of business as opposed to human rights proponents.

Some jurisdictions, such as Hong Kong, have set stricter limits than New Zealand on employer intrusions into employee privacy, though each purports to be acting in accordance with international privacy standards. The Hong Kong position may be a case of human rights protections making up for a lack of employment protections. The efficacy of data protection regulation in protecting workers' privacy interests generally tends to depend on the approach of the data protection authorities and legal institutions that apply and interpret the law. Such limits as have been imposed in New Zealand mainly seem to have been set by the specialist employment law institutions rather than through privacy law.

There are arguably two factors that account for a lack of active protection for workers in the privacy context. Firstly, there is the nature of the relationship, which is viewed as consensual rather than one where there is a power imbalance between the parties that needs no more in the way of adjustment than guarantees of minimal employment law rights, as opposed to civil rights. Secondly, the Privacy Commissioner has fallen into a legitimising role in relation to new technologies, facilitated by the lack of any real power to exert control over new and intrusive practices. …

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