Report by the Privacy Commissioner to the Minister of Justice on the Harassment and Criminal Associations Bill (other than provisions dealing with interception warrants)
2.0 Criminal and civil harassment - Parts I to IV of the bill
Existing law (including Privacy Act)
Supply of name and address
Intimidation - clause 88
Financial compensation and bonds
3.0 Controls on association - Parts V and VI of the bill
Participation in a criminal gang
Associating with violent offenders
4.0 Summary of conclusions and recommendations
Appendix: non-publication of public register information 16
Each person has a fundamental interest in privacy. An individual must be able to secure a desired space away from surveillance, intrusion, or harassment by unwanted others in order to develop freely as an autonomous individual. Thus, the interest in privacy is instrumental to the interest in autonomy - some modicum of privacy being necessary to the enjoyment of autonomy. People are entitled to peace and quiet away from those other individuals with whom they choose not to associate. Where individuals' interest in privacy is being threatened by the invasive actions of others and those individuals are not able to prevent those others from continuing the invasion, the state should be willing to step in to aid the individuals in securing their enjoyment of the right to privacy.
Alberta Law Reform Institute, Domestic Abuse: Towards an Effective Legal Response, 1995, p69.
The ordeal of an Auckland lawyer, harassed by a female admirer for eleven years, highlights how little legal protection there is in New Zealand against soft 'stalking'. The lawyer's stalker used electoral and car registration records to keep tabs on his life, besieges him with long letters, answerphone messages, biscuits and smiles...the lawyer took out a trespass notice to stop the woman jumping out to greet him as he parked his car at the law firm. That stopped the early-morning ambush, but not the harassment. He later found the woman inside the garage at his home. ... The lawyer has twice changed houses...each time he has been followed. 'I don't particularly want to see her prosecuted, but I want back my privacy.'
Extract from 'Love Gone Wrong', NZ Listener, 23 November 1996.
1.1 The Harassment and Criminal Associations Bill is described in its explanatory note as comprising 'a package of measures that aims to provide better protection from harassment generally and to place restrictions on the activities of criminal associations or gangs'. The bill will amend key criminal justice statutes including the Crimes Act 1961, Criminal Justice Act 1985, Misuse of Drugs Act 1975 and the Summary Offences Act 1981, as well as establishing entirely new provisions dealing with criminal and civil harassment.
1.2 Many of the provisions in the bill have a potential impact on individual privacy. Most significant will be amendments to the Crimes Act and Misuse of Drugs Act to expand legal powers to intercept private communications. Those law changes are of such significance that I propose to deal with them in a separate report to you. In this report, I will report to you the results of my examination of the provisions in the bill which do not touch on interception of communications.
1.3 There are provisions in this bill which will enhance the rights of individuals to be free from harassment in their personal and private lives. I support these provisions. However, there are other aspects in which the bill will, in various ways, restrict liberties previously enjoyed, through criminalising or restricting freedom of association. These provisions will have effects beyond the activities of gangs. Therefore, in my scrutiny I have been particularly interested to try to consider the effect on privacy for the community at large of some of the provisions.
1.4 The balance of this report will offer some observations on aspects of Parts I to IV, dealing with civil and criminal harassment, and on Parts V and VI as they relate to controls on association.
2.0 Criminal and civil harassment - Parts I to IV of the bill
Existing law (including Privacy Act)
2.1 It is already possible for victims of harassment to obtain some limited legal protection from harassment in certain circumstances. In addition to criminal law provisions there are a variety of statutory and common law remedies, such as:
interim injunctions based on the torts of invasion of privacy, intentional infliction of emotional distress or private nuisance;
a bond to keep the peace can be imposed under the Summary Proceedings Act 1957 on application of a person who has cause to fear that another person will do certain unlawful things to the applicant, his or her family or property;
notice given under the Trespass Act 1980 to prohibit trespassers from entering property again;
compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 may sometimes be ordered for an obsessional stalker;
redress under the Residential Tenancies Act for harassment by landlords or other tenants.
2.2 Each of these provisions has a particular value in the area that it covers. For instance, if the harassment only involves coming onto private land it would make sense for recourse to be sought in the first instance through the Trespass Act rather than to seek a restraining order under this bill. However, each has shortcomings. For example, the effectiveness of requiring a bond to be posted under the Summary Proceedings Act may be limited by the financial position of the defendant. Nuisance is a remedy available only to people having an interest in land. The costs of taking civil proceedings is likely to be prohibitive for many victims in cases where legal aid is not available. None of the provisions has the coverage or potential usefulness of the bill.
2.3 I should, of course, mention that the Privacy Act may be relevant in some cases. It will only be of assistance where the harassment amounts to a collection, use or disclosure of personal information (or such a step preliminary to harassment). Examples might be the videotaping of a victim, the selection of victims through an agency's address list, the malicious disclosure of personal information contained on an agency's file, or the collection of information about a victim by unlawful means such as the interception of private communications.
2.4 However, while the Privacy Act will have some application and perhaps even provide a remedy to victims in certain circumstances, it is not designed for harassment and its effectiveness will be limited in several significant ways:
there is a domestic affairs exemption under which the person carrying out the harassment may sometimes be able to avoid liability;
the person carrying out the harassment will only be able to be ordered to desist from actions or to compensate a victim if it can be shown that the actions have caused some loss or detriment (this will be possible for some victims who unfortunately have had to go to extraordinary lengths, and expense, to try to protect themselves from the harassment; the Act will also recognise non-financial detriment such as significant humiliation, loss of dignity or injury to feelings);
there is an exception to the relevant privacy principles which would mean that it is not proscribed behaviour for a stalker to obtain a victim's address or details from a public register.
2.5 The new law will work in harmony with existing provisions and fill glaring gaps in existing legal protection for victims of harassment.
2.6 Parts I to IV of the bill deal with 'harassment', which is defined to mean a 'pattern of behaviour that is directed against ... any other person, being a pattern of behaviour that includes doing any specified act against the other person on at least two separate occasions within a period of 12 months'. A definition of 'specified act' is given which includes:
watching, loitering near, or preventing or hindering access to or from a person's place of residence, business, employment or other place frequented;
following, stopping, or accosting a person;
entering or interfering with property in a person's possession;
telephoning or otherwise communicating with a person;
giving offensive material to a person or leaving it where it will be found or brought to the person's attention;
acting in any way that could reasonably cause the person, given his or her particular circumstances, to fear for his or her safety.
2.7 The definition of 'harassment', and the criminal and civil provisions which accompany it, has an importance in that it moves beyond single and dramatic acts of harassment (such as a direct threat or attack) to also cover patterns of behaviour which taken together constitute harassment. Sometimes the single acts of harassment may themselves appear innocuous or trivial. However, taken together they can seriously irritate individuals and be upsetting and disruptive to normal personal life. It is in respect of this pattern of less serious, but cumulative harassing behaviour, that the law has been least satisfactory to date.
2.8 The criminal and civil harassment provisions will provide greater protection for victims of on-going and continuous harassment by persons commonly referred to as 'stalkers'. The Domestic Violence Act 1995 has already provided increased protection for victims of harassment in a domestic context and I supported that initiative as being a positive one for individual privacy. In that context I noted that the right to privacy, and the right not to be subject to arbitrary interference in an individual's home or family, are fundamental human rights. Privacy involves, amongst other things, being able to exercise a degree of individual autonomy and I considered that ensuring that individuals' most private place, their home, is free from violence is fundamental to enabling that.
2.9 However, the Domestic Violence Act is directed solely to cases where a person is in a domestic relationship with another. The action of known and unknown stalkers is not addressed. I believe that the law has not been sufficient in the past in criminalising the behaviour of certain individuals whose actions have put their victims' safety at peril or made their lives an on-going misery. The types of harassment which will be captured by the provisions of this bill are of a nature that would inhibit an individual from freely enjoying their private life and could be detrimental to their working life as well.
2.10 Clause 8 creates a new offence of criminal harassment, which is punishable by 2 year's imprisonment. A person is guilty of criminal harassment if that person harasses another person and either:
intends to cause the other person to fear for his or her safety, or the safety of another person with whom he or she has a family relationship; or
knows that the harassment is likely to cause that other person reasonably to so fear.
2.11 I support the enactment of clause 8. I believe it provides an appropriate new offence to combat harassment. It criminalises the worst type of harassment where individuals are caused to fear for their safety.
2.12 I realise that some overseas 'stalking' offences of this type have not been entirely effective because it can be quite difficult to prove that a person intended a pattern of behaviour to cause another person to fear for their safety or their family's safety. There may be calls to broaden the scope of the offence or to remove the mens rea element. However, I think the alternate limb of the offence should meet that concern, since in cases where an intent to cause harm cannot be shown, it may be able to be shown that the harasser nonetheless knew that the actions were likely to cause the victim to so fear.
2.13 I think that we should be cautious about extending the bounds of criminality further as there may be unforeseen effects and the law may be invoked in circumstances which are not anticipated. For instance if the element of intent was removed there may be a risk of the law being used in the area of political or industrial protest. Harassment which is not reached by the criminal offence should be able to be covered in appropriate circumstances using the civil remedy which does not require an intent to cause fear to be proved.
2.14 Nonetheless, I would be disappointed if the criminal offence turned out to be impossible to effectively prosecute. That would be of little use to victims of harassment. I do not believe that this is the case with this provision but I suggest that its effectiveness ought to be reviewed after several years in operation.
2.15 Part III of the bill provides a civil process to protect persons who are victims of harassment. People subject to harassment will be able to obtain a restraining order against the harasser or a person whom the harasser is encouraging to engage in behaviour which would amount to harassment. To make a restraining order a court must be satisfied that:
the person is harassing, or has harassed, the applicant;
the behaviour complained of reasonably causes the applicant distress or threatens to do so to such an extent that the order should be made; and
the making of the order is necessary to protect the applicant from further harassment.
Where a restraining order is enforced against the person, that person must not do or threaten to do any 'specified act' against the person for whose benefit the order is made or encourage any other person to do a specified act. The court can also impose special conditions tailored to the circumstances.
2.16 Clause 21 makes it an offence to do any act in contravention of a restraining order or to fail to comply with a condition of the order. The offence is punishable by imprisonment for a maximum of six months or a fine not exceeding $5,000. However, an increased penalty of a maximum of two years' imprisonment may be imposed for a persistent breach of the same restraining order, or of restraining orders made for the benefit of the same person. The use of the criminal law to back up such civil orders is not new - it is the approach taken in the Domestic Violence Act 1995 and the 1982 Act that preceded it. I believe that this approach provides a suitable means of tackling the problem which avoids the need to create a new general criminal offence. As already noted, there would be difficulties in creating a new criminal offence broader than that which is already proposed in clause 8. The actions that constitute harassment which might be the subject of a civil order may, in many cases, appear relatively trivial in themselves. It is undesirable to attempt to tackle that behaviour with a general offence.
2.17 I think that the penalty provision is appropriate. For a first offence the harasser will be subject to a penalty at the lighter end of the scale - although the potential punishment is hardly trivial, since it could amount to six months in prison. This recognises that the individual action which may amount to a breach of the order may, in the nature of harassment, appear at first sight to be relatively trivial. However, the more serious penalty for second and subsequent offences recognises that harassment will constitute a pattern of behaviour and a second offence indicates that the individual is continuing that pattern despite the matter having been before the court on at least two previous occasions. In those circumstances, one would expect the court to be authorised to impose a more significant penalty if warranted.
Supply of name and address
2.18 I draw to your attention two clauses which may have an effect in relation to the privacy of individuals accused of harassment. Clause 22 gives the police the power to require a person to supply name and address. Refusal is an offence and the police may arrest the individual without warrant. Clause 24 provides that the police may release the name and address details to another person for the sole purpose of enabling that other person to apply for a restraining order against the alleged harasser.
2.19 I have some unease about these provisions although I do not oppose them. Suitable powers are needed in the bill to make sure that the harassment processes can be made to work. It does not seem unreasonable to give the police the power to demand name and address of a person accused of harassment. In the absence of any power to compel the giving of those details, a harasser of unknown identity may disappear without trace. If the civil processes for obtaining a restraining order are to be effective, the victim will presumably need the harasser's name to enable an order to be made and will need an address so as to serve documents on him or her. If the victim does not have the details, but the police do, then it is understandable why the bill has provided for those details to be released to enable application for a restraining order to be made. Given these practicalities, and the possible consequences if the police could not demand name and address and the victim could not obtain details to serve process, I do not oppose these provisions.
2.20 However, the reason for my unease is that there may be a danger that the victim, or the victim's friends and associates, will attempt to visit retribution on the alleged harasser by physical violence. It may even transpire that the police identified the wrong person. There is also the possibility that the law will be invoked in circumstances which will transpire, once the matter is before the court, not to amount to harassment as intended by the law. There may, for example, be occasions where a creditor is continuing to approach a debtor. Although the approaches may be quite unwelcomed by the debtor they may be quite lawful. The police, having been drawn into the matter, may not necessarily be able to appreciate the nuances and be persuaded to release home address details to an apparent 'victim' who may in fact be quite an unsavoury character.
2.21 I must confess, I do not have a solution to this issue but I draw it to your attention. The bill struck a balance by granting the police power to obtain the information and a discretion to release to it. The police are not obliged to release the information and I guess we must place some faith in their judgment in these sorts of circumstances. In terms of victims taking the law into their own hands, I would hope that the police would warn them not to do this when the details are released. The general law will provide a sanction if a victim disregards a warning of that type. Finally, in terms of control of the information once released, the law does make it quite clear that the information is being released only for the purpose of taking proceedings. A victim who attempts to use the information for other purposes will be acting contrary to the statute. This, of itself, does not necessarily visit any consequences on an individual victim if the information is released directly to him or her. However, most law abiding citizens will take notice of the clear intention of the law. If the information is released to an agency other than the individual victim, such as a solicitor on the victim's behalf, there may possibly be redress under the Privacy Act if the information is used for an incompatible purpose. I suggest that the Police adopt clear processes to ensure that when details are released under clause 24 that the limitation as to use is made explicit.
2.22 Harassment comes in many forms. For some types of harassment the victim will often try to protect themselves by enhancing the zone of privacy between themselves, their home and family, and the outside world. They may do this by, for example, obtaining an unlisted telephone number, using a post office box for correspondence and erecting fences and gates. If they move home, they may only tell family, friends and others who really need to know, of their new home address and use the PO box for other contact. Certain kinds of harassment may be effectively ended if the harasser can no longer get in touch. If the harasser can easily identify their new location without difficulty the harassment may resume. For this reason I want to draw attention to the fact that notwithstanding a victim's best endeavours their home address may be released through the disclosure of information by other persons such as their employer or a public authority. The Privacy Act may be some assistance since it encourages agencies that hold personal information to respect the privacy of the individuals concerned and to take care when disclosing those details. However, one area where I see particular difficulties in respect of public registers.
2.23 Public registers consist of information which is usually obtained by compulsion of law, assembled and indexed, and made available for public search. Examples are the electoral roll, motor vehicle register and the dog register. Public registers have featured in some of the most high profile stalking cases. For example, in the USA the 1989 murder of TV star Rebecca Schaeffer occurred after a stalker learned of her home address through open motor vehicle records in California. New Zealand has grappled with the problem by enabling people who fear for their safety to have their details held on a confidential list in respect of particular public registers. This is the approach taken in the Electoral Act and the Transport (Vehicle and Driver Registration and Licensing) Act. A more recent initiative has been taken in the Domestic Violence Act which enables people who have protection orders under that Act to ask, in respect of any of the public registers listed in the Privacy Act, for their details to be held confidentially on those registers. This recognises that some people fleeing domestic violence may find practical protection in keeping their whereabouts unknown to their former domestic partner. I suggest that similar protection be afforded victims who have obtained a restraining order under this bill. Although not all harassment will involve a fear for personal safety the case for keeping details confidential is nonetheless strong. In an appendix to this report I canvass some of these issues in more depth.
Intimidation - clause 88
2.24 Clause 88 will broaden the definition of intimidation in the Summary Offences Act 1981 by providing that a person commits an offence where he or she, having the requisite intention to frighten or intimidate another person, stops, confronts, or accosts that person in a public place. The offence carries a term of three months' imprisonment and the fine is doubled to $2,000. There is also a change to the mens rea requirement of the offence so that as an alternative to proving that the individual intended to frighten or intimidate a person it can now simply be proven that the person's conduct was likely to reasonably cause another person to be frightened or intimidated. The change will make it easier to secure a conviction. I support these changes.
Financial compensation and bonds
2.25 The civil jurisdiction is presently directed towards orders which protect an individual. This is appropriate. However, I wonder whether the opportunity could usefully be taken to authorise courts to order compensation at the same time in respect of expenses incurred by victims to protect themselves? Some victims may, as a result of harassment, feel compelled to buy alarms, install fences and gates, rent post office boxes and such like. Perhaps the harasser should be made to pay the price? I realise that many victims only wish to be rid of the harasser, and want no further contact by enforcing payment, but it might be an option which assists some victims. I also wonder whether it would enhance the effectiveness of the scheme if a court could require a bond to be posted for good behaviour? This could be modelled on Part VI of the Summary Proceedings Act and may perhaps provide additional incentive for compliance, beyond the offence provisions.
3.0 Controls on association - Parts V and VI of the Bill
3.1 These parts of the bill will amend the Crimes Act and Criminal Justice Act. I have some concern at how the new controls on association may impact on personal autonomy and privacy.
Participation in a criminal gang
3.2 Clause 38 inserts a new section into the Crimes Act prohibiting participation in a criminal gang in circumstances where a person participates knowing that members of the gang have committed any serious offence and intentionally promotes or furthers any criminal conduct by members of that gang. A 'criminal gang' means 'any on-going organisation, association or group (whether formal or informal) of 3 or more persons, at least 3 of whom individually or collectively have engaged in a pattern of serious offending'. The offence is punishable by three years' imprisonment. I have some concern about the provision because of its potential effect on freedom of association and thereby personal autonomy and privacy. Also, as explained below it may promote police surveillance of the public and this carries privacy risks.
3.3 The offence provision is unusual. In my view, it does not possess the clarity that is desirable in criminal offences. Traditionally the criminal law identifies unlawful acts which harm society or individuals and criminalise the actions of people who intentionally undertake those actions. To the extent that others help those people in their offending the law already criminalises that assistance through the law of 'parties'. To the extent that this new offence will duplicate the law on parties I would suggest that it may not be justified. If the law extends beyond our existing broad law on parties, I would question the new law's certainty and breadth.
3.4 This law would seem to have a vagueness and uncertainty which is troubling from a privacy and personal rights perspective. It has not sought to identify banned organisations, such as has been the approach in Northern Ireland. I am not advocating that approach but at least it provides some degree of certainty whereby individuals know where they stand in relation to association with others and participating in an organisation and the law enforcement authorities have a clear lead as to where surveillance should be directed. Nor does the law require notice or warning to be given to the person of the alleged criminality of the association (as does the proposed offence at clause 87). Nor does it attempt to proscribe certain clear actions (such as entering a gang headquarters or wearing a gang emblem).
3.5 This offence depends upon a definition of 'criminal gang' which may be an uncertain concept for individuals and for law enforcement authorities. It may also bring into question the involvement of the rest of the community with these gangs. For example, how would a public authority be perceived if it provided a grant to a 'criminal gang' as the law may now consider an organisation? Will the enforcement of private contracts with such bodies be contrary to public policy? If the provision does not lead to the break-up of gangs, which given experience of the last 30 years seems unlikely, might it ostracise these organisations further from mainstream community and tar the (relatively) law abiding gangs with the reputation of the very worst? It could have the effect of cutting them off from lawful sources of collection income.
3.6 I see the right to freely associate with people of one's choice as integral to a real right to personal privacy. Historically, freedom of association has been seen as linked to the rights to freedom of assembly, freedom of expression and the right to freely participate in public affairs. Remove the right to associate and those important political freedoms are undermined. However, the right to freedom of association is also relevant to a much more personal right, the right to privacy, which involves the ability to exercise autonomy in the way that individuals choose to organise their lives particularly in relation to other individuals. A limitation on who one can associate with, be it friends, family or business contacts, can diminish control over one's own life.
3.7 Accordingly, I approach this non-association offence as a privacy issue. I suggest that the State ought to demonstrate a compelling interest before extending the criminal law in this way. If there is a compelling case it should be defined with suitable precision. I am not suggesting that a privacy interest should overwhelm the need to deal effectively with any 'gang problem'. However, I think that we should move cautiously in undermining the freedom to associate and assemble as it may affect broader society not simply those elements that are considered to be 'outlaws'.
3.8 I also have concern as to the offence's effect on policing. To prosecute for this new offence the police will need to look beyond unlawful acts by the main perpetrators of crimes. They will have to produce evidence of 'participation' in a gang. The police will have to have kept tabs on people to be able to prosecute the offence. The entire gang will need to be kept under surveillance. The police will presumably keep tabs not just on known gang members but those who come into contact with the gang so that they can monitor who is now 'participating'. As the definition of 'criminal gang' is not going to be clear in every case the surveillance may extend beyond the well known gangs into other smaller associations of three or more persons. They will also collect a great deal of personal information about others who are not criminally involved but with whom the 'target' has contact, such as members of extended family. Generally our society does not wish to be under close surveillance by our law enforcement authorities. I have some concern about the framing of a law that encourages surveillance of people because of their association with others, rather than the traditional concentration on acts that have been declared unlawful by Parliament.
3.9 Part VI amends the Criminal Justice Act 1985 in relation to the making of non-association orders and the imposition of non-association conditions. At present that Act allows courts to impose a non-association order where an offender is convicted of an offence punishable by imprisonment. Before a court makes such an order it must be satisfied that the making of the order is reasonably necessary to ensure that the offender does not commit further offences punishable by imprisonment. The effect of a non-association order is that the offender is prohibited from associating with any person or class of persons named in the order for a period not exceeding 12 months. The bill varies and extends these provisions in various ways.
3.10 Obviously, the power to impose non-association orders does raise some of the same issues concerning freedom of association and personal autonomy that I mentioned in the context of the proposed Crimes Act offence of participation in a criminal gang. However, I do not oppose these provisions. Indeed I support them as a measured response to the gangs issue and concern at violent offending. Advantages over the proposed new criminal offence from my perspective include:
the powers are quite precise;
orders are imposed on a case-by-case basis after due consideration by a judge;
the scheme is directed towards people who have been convicted of an offence (not the entire public);
the limited duration of non-association orders avoids widescale surveillance of sections of our community and instead anticipates more traditional monitoring of conditions imposed on people who are released from custody on a supervised basis - a class of person already under heightened scrutiny and surveillance.
Associating with violent offenders
3.11 Clause 87 inserts a new offence into the Summary Offences Act 1981 which makes it an offence for a person to habitually associate with a violent offender. For a person to commit an offence against this section, the circumstances must be such that it can reasonably be inferred that the association will lead to the commission of a crime involving violence by the person or the violent offender. The section requires that before an information is laid, the person must have been warned by a constable on at least three separate occasions that his or her continued association with that violent offender may lead to such a charge. Such warning must have been given within seven years after the date of the violent offender's last conviction for crimes involving violence.
3.12 I have no particular view as to the utility of this section in respect of dealing with gang violence. However, I expect that it will be directed towards a similar problem to the proposed Crimes Act offence of participation in a criminal gang. I take the view that the approach of clause 87 is to be preferred. The elements of clause 87, compared with clause 38, are far more precise. Precision is further enhanced from the point of view of the individual at risk of committing an offence by the warning that is required to be given by the police. Given my misgivings about the offence of participation in a criminal gang, I suggest that this provision should proceed instead of clause 32.
4.0 Summary of conclusions and recommendations
4.1 In summary:
I support the new offence of criminal harassment but suggest it should be reviewed after 5 years to check whether it needs refinement (clause 8).
I support the new civil remedies for harassment.
I suggest that the Police adopt clear procedures to ensure that when details are released under clause 24 to a victim that the limitation on use is made explicit.
I suggest that consideration be given to adapting Part VI of the Domestic Violence Act to enable people who obtain restraining orders under this bill to obtain directions that their personal details be held confidentially on public registers.
I suggest that courts be authorised to award compensation to a victim for costs expended in seeking to protect privacy against a harasser.
I suggest that consideration be given to enabling courts to require harassers to post good behaviour bonds.
I hold reservations about the effect of clause 38 on rights to freedom of association and the consequent effect on personal autonomy and privacy. I am not convinced that the provision provides clear advantages over existing law as it relates to parties to offences. I recommend that the provision be dropped in favour of the new offence of 'association with violent offenders' (clause 87).
I support the reform of provisions dealing with non-association orders and conditions as being a measured response to concerns at criminal association and violent offending which does not carry the risks to freedom of association of criminalising participation in a gang.
I support the broadening of the offence of intimidation to cover acts involving stopping, confronting, or accosting people in a public place, and the doubling of the fine to $2,000 (clause 88).
BH Slane Privacy Commissioner
23 January 1997
NON-PUBLICATION OF PUBLIC REGISTER INFORMATION RELATING TO VICTIMS OF HARASSMENT
Over the last four years I have kept a close interest in the privacy aspects of public registers. Issues have arisen in respect of the public register privacy principles and also in connection with certain operational matters and legislative proposals. Concerns about personal safety have featured in many of the public register issues in which I have been involved.
It may be useful to repeat some of the points I made in an earlier report in relation to the dog register:
There are special privacy problems associated with information that is collected for, and held on, public registers. The differences compared with some other personal information obtained or held by agencies include:
compulsory collection - it will usually be necessary to supply details to a public register to carry on certain specified activities, such as owning a dog, and it will be an offence to carry out certain activities without having completed the registration process;
open to search - a register will be maintained in a form that it will be open to search by statutory officials and once a person has registered his or her details will often be available to public view (indeed if information is sourced from a public register the Privacy Act recognises that information as being 'publicly available information', Privacy Act s.2).
The special characteristics of public registers mean that some privacy problems are magnified and some others arise which are peculiar to public registers. For instance there are issues involving:
the use of the register information for incompatible purposes; and
the use of the register information for unrelated and intrusive purposes.
The personal safety issue, briefly stated, is that some people have special concerns for their safety if their residential address becomes known, either generally or to certain people. The most common example is an individual who has escaped domestic violence ... . However, there are many other people with particular concerns for their privacy and safety, such as victims of crime, witnesses or jury members, public figures, law enforcement officials and the targets of stalkers.
Such people often take particular care to limit disclosure of their residential address and personal details. However, when those people come into contact with the public authorities which require those details to be disclosed, those same details are made available for open public search. The dog register is such an example. Individuals who fear for their safety if their address becomes known are thereby placed in a quandary. Do they provide the information and take the risk? Do they break the law and fail to register? Do they register giving false details? Do they forego the opportunity to participate in the activity that requires registration - such as the opportunity to own a dog? These can be cruel choices.
A person who nonetheless chooses to register may find personal safety compromised by being traced by the person from whom they fear violence. The person tracing them may, for instance, know the details of their dog but not the new residential address or new name. Or the risk may involve an anonymous stalker who may simply have observed the person walking a dog whose details or registration number is noted.
Many New Zealand public registers have completely open search facilities. The person searching the register will generally not be required to say who they are or why they are searching the register. It is thereby possible for people to search the register for purposes inimical to the purposes for establishing the register. Although I only have anecdotal evidence the following two examples illustrate the point:
Dogs may be stolen because they are a valuable breed or for dog fighting. An open dog register, where a person does not have to state their name or purpose for searching, provides an ideal vehicle to locate targets for theft.
Burglars may favour properties without fierce dogs. More hardy burglars may nonetheless may wish to know whether their target house contains a dog. An afternoon's search through the local dog register will be a valuable source of information.
There is a concern that safety of individuals can be compromised on occasion through the release of details of home address. Careful attention to good information handling practice can diminish that risk for everyone. For example, I particularly support the approach taken in the new legislation establishing the dog register as it proceeds on the assumption that information should be released only to people who have the 'need to know'. The department concluded in that case that open public access was not necessary for the purposes of that legislation and that dog control needs would be effectively addressed by enabling authorised persons, such as dog control officers and vets, to have unrestricted access, but with register information to be released to the general public only for purposes consistent with the objectives of the Act. The 'need to know' approach should help protect the safety and privacy of all people, not simply those who know that there is a risk in their case.
However, legislation governing most public registers does not at present follow the approach of the dog register and instead requires registers to be held open for public search without limitation. Registrars usually do not have any legal discretion to withhold details. Accordingly, an alternative to the 'need to know' approach has been developed which provides for special protections in certain exceptional cases. Although this is a second best option in terms of privacy protection compared with the 'need to know' approach it can nonetheless protect personal safety in some circumstances. The 'exceptional case' approach requires an individual who has some concerns for his or her safety to apply for details to be held confidentially.
The first provision that I am aware of which sought to protect personal safety in this way was a 1980 amendment to the Electoral Act 1956. This provision allowed the Chief Registrar of Electors, following application by an individual, to keep an elector's details off the published roll and retain it on an unpublished roll. The person is able to vote but details are not available for public search. A more recent, but less well known, provision exists in the Transport (Driver and Vehicle Licensing and Registration) Act 1986. There are a couple of other similar provisions.
Some registers may be more important than others for tracking individuals whether it be as an estranged partner or an unknown stalker. For example, it is compulsory for all adults to register as an elector and the published rolls are widely available through public libraries and post offices. Similarly, most adult New Zealanders own motor vehicles and the details are easily available through post offices and other outlets on payment of a small fee if the registration number to the vehicle is known. Risks also exist for much smaller or more focused registers. For this reason, a more systematic approach to the issue of withholding of details on public registers for reasons of personal safety is taken in the Domestic Violence Act 1995.
The Domestic Violence Act allows an individual who has obtained a protection order to apply to the agency which maintains any public register for a direction that identifying details be kept confidential and not made available to the public. The provision is directed towards those persons who have relocated and wish to keep their new whereabouts secret from the person who has been violent towards them. This is only a small category of the entire group of people who are to obtain protection orders but the risks, and the fear, are quite significant.
I suggest that the rights that are now accorded to individuals who obtain protection orders under the Domestic Violence Act 1995 should also be available to individuals who obtain a restraining order under the Harassment and Criminal Associations Bill. The position of the two classes of people is comparable although not identical. Not all individuals who obtain restraining orders will benefit from the non publication provisions - just as not all individuals who obtain protection orders will. However, I do believe that there will be a number of victims of harassment who will benefit from being able to obtain confidential listings in public registers. Not all victims of harassment fear violence, some do, but all dread continuing attempts at contact from the harasser.
Often, the key link between the person who is carrying out harassment and a victim is knowledge of where the victim lives. If a victim shifts during the period of harassment it may provide an ideal opportunity to break that link. Accordingly, any new rights to keep details confidential will not simply benefit people who move home because of harassment (which I expect will be relatively rare) but also those victims who coincidentally move home and might wish to retain greater privacy in their new location. By way of illustration, a recent article in the Listener recounted the story of a lawyer who had been harassed for 11 years. The article notes that the lawyer's stalker used electoral and car registration records to maintain contact. The harassment died down in certain periods, providing a welcome respite for the victim, but then resumed. The lawyer had twice changed house during the period, although not as a result of the harassment. Each time, he had been traced.
Provision should be made that so that persons who obtain restraining orders can, on application to the relevant registrar have their details held confidentially on public registers as if they had a protection order under the Domestic Violence Act. There could be several ways in which this could achieved.
Amend Electoral Act and other specific provisions only
If it were concluded that it was not appropriate to extend the full provisions for obtaining confidential listings to people who obtain restraining orders it would, at least, be possible to amend existing laws which allow for confidential listings in exceptional cases to be suitably amended. For example, s.105 of the Electoral Act could be amended to give the Chief Registrar sufficient power to place a victim of harassment on the confidential roll. This will extend existing discretion to allow non-publication as not all harassment will meet the personal safety requirements in this and other provisions.
Extend the Domestic Violence Act scheme to victims of harassment
A suitable amendment could be made to this bill, the Domestic Violence Act, or both, making it clear that a person who has obtained a restraining order is deemed to have obtained a protection order for the purposes of Part VI of the Domestic Violence Act. There would be some technical and drafting issues to work through but for the most part it would be a relatively simple exercise which would recognise some additional people who can utilise the procedures and laws that have already been enacted. I suspect that this is likely to be the simplest way of comprehensively tackling the issue.
* Tackle the issue more comprehensively
Although the Domestic Violence Act is an important and systematic approach to the issue it nonetheless remains in some respects quite limited. This bill is a good example of that. There are other categories of people, beyond those who have protection and restraining orders, who have reasons to fear for the safety or wellbeing if details of their whereabouts become known. Examples might be jury members who have been threatened during a court case, witnesses to offences, and public figures, to mention a few. It would be possible to create a regime, based upon the Domestic Violence Act provisions, but placed in a more general setting than the Domestic Violence Act itself. Part VII of the Privacy Act, which deals with public register personal information, would probably be a suitable setting for a general regime. Ultimately, if we are to protect safety (and other privacy-related interests involving freedom from intrusion) by providing for 'exceptional cases' rather than rewriting the laws governing public registers on a 'need to know' basis, then I think that a general approach may be desirable in the medium term. However, this option will be more ambitious than option (b) and involves considering issues beyond harassment.
Whichever option is chosen some care will need to be taken to ensure that the provisions are consistent with those that have been crafted for the Domestic Violence Act. From time to time, new public registers will be added to the scheme created under the Domestic Violence Act. and it would be undesirable to end up with discrepancies between that Act, the Privacy Act and this initiative.