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Using the Privacy Act for Māori Nicola Clark
12 December 2017

Tino Rangatiratanga Maori

Me ōpanga rawa e aro ai te tangata, Ki te tai tama Māori e ((Must he be an All Black before you notice, This young Māori man) - Corin Merrick, Te Hunga Roia Maori o Aotearoa Hui-a-Tau 2017.

The connection to iwi, hāpu and whanau is significant for Māori. Not only does that connection better connect us to our whakapapa (ancestry) and ancestral history, but it provides an ongoing connection to our culture and a better understanding of who we are as people and where we come from. When that connection is lost or not made, it can be harder for Māori to understand the world around them.

Toi tu te kupu, toi tu te mana, toi tu te whenua (Without language, without mana and without land, who are we as Māori?)

Reflecting on two key workshops at this year’s Te Hunga Roia Māori o Aotearoa Hui-a-Tau*, several thoughts came to mind about how privacy law should be an enabler for Māori to make connections, rather than being seen as an inhibitor.

Many social agencies and Government departments collect Māori data (for instance, iwi and hāpu affiliations). Is it time we start asking them what is their purpose for collecting Māori data about iwi and hāpu affiliations, if no effort is made to put Māori in touch with their iwi and hāpu?

Because of the Privacy Act

‘We can’t do that, because of the Privacy Act’ (or BOTPA to those in the know) has been a common response to questions on why things can’t be done. As I sat in a session about ‘The Relevance of Treaty Settlements to Whanau’, our old friend BOTPA reared its ugly head.

Don’t get me wrong. In some cases agencies really can’t do it because of privacy, but in most cases, the Privacy Act is flexible enough to deal with it.

Throughout the hui, we were presented with damning statistics demonstrating a clear over-representation of Māori in the criminal justice, youth justice and family law sectors. The represented Māori were aptly described in a session about the Oranga Tamariki Act and its impact on Māori as ‘the forgotten ones’. They were forgotten because - as described by the short excerpt from an emotional haka written by Corin Merrick - our young Māori men are appearing in youth court with no whanau, no support and no direction. Where are their iwi and hāpu to awhi (love and support) and advocate for them?

For many iwi, working in the post-treaty settlement space, their aim is to engage, promote and advocate for their iwi members. But how can they do this when they don’t know who a large number of their iwi members are? Privacy, they argue, is inhibiting them from connecting with their people, connecting to their forgotten ones.

How can privacy law enable these iwi to connect with this young Māori man who isn’t an All Black?

Changing the view of privacy

Working with the Privacy Act every day and hearing the frustration from iwi, I wondered how my office can assist iwi and change their views on privacy.

In the past 20 years, iwi have done a lot of work building stable asset bases, but we are now in an era where focus has moved towards doing better for the people. Iwi have identified that an effective way to produce better outcomes for their people is to partner with current social service agencies that are expert in their fields, rather than duplicating a service that already exists.

Many of these social agencies already collect and hold data specific to Māori but due to the BOTPA thinking, they’re reluctant to share this data with iwi. For many social service agencies, the misunderstanding between Māori and western concepts of privacy, plus a general misunderstanding on how the Privacy Act works, encourages agencies to rely on BOTPA as a reason for not giving information.

This issue isn’t new. Privacy Commissioner John Edwards touched on it during Te Wiki O Te Reo last year. Social service agencies and iwi working together with relevant data can only encourage positive changes to the damning statistics and - as the Commissioner has said before - the Privacy Act is flexible enough to accommodate some data sharing.

Consent based model

Social service agencies and iwi could work on a consent based model for access to data. This would allow iwi to connect with their people in prisons, youth justice facilities or state care and offer support and services. If agencies promoted and encouraged Māori engagement with their iwi, BOTPA would no longer be a valid excuse. The relationship between iwi, social service agencies and government could be a mutually beneficial one. Iwi could advise agencies what services they offer to their members and relieve pressure on government services.

Although there is some work to be done between iwi and agencies around sharing relevant Māori data to encourage better Māori outcomes, more positive outcomes are bound to happen if we take the approach of ‘how can we do this?’.

As part of this approach, the Office of the Privacy Commissioner works for and promotes the use of the Privacy Act for the benefit of people. Our office provides its Trusted Sharing Consultancy Service to advise with information sharing queries or issues. You can find out more about it here or by emailing us at policy@privacy.org.nz.

* Te Hunga Roia Māori o Aotearoa Hui-a-Tau is an annual get together for Māori lawyers to meet, connect, whakawhanaungatanga and discuss all things Māori and legal. I was fortunate enough to attend and engage in many different sessions and keynote presentations including those by the Children’s Commissioner, Judge Andrew Becroft, and the Chief Justice, Dame Sian Elias.

Image credit: Tino Rangatira flag via Wikipedia






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