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What can religious organisations shield from the Privacy Act?

By Meg Wallace - posted Thursday, 8 December 2011

Christopher Pearson (Australian 3.11.2011), writes on the recent inquiry into the allegations of sexual abuse against Catholic Church hierarchy brought by Archbishop John Hepworth. Hepworth, an ex-Catholic priest, wanted reconciliation with the Catholic Church. This depended on the Church's recognition of the abuse, and it caused an inquiry into the matter. The inquiry found thee was 'no substance' to Hepworth's allegations, but refused his 'obvious entitlement to know on what basis he had been judged.'

The Church's handling of Hepworth's case would seem to bear some resemblance to a case before the High Court of New Zealand - Director of Human Rights Proceedings v The Catholic Church for New Zealand HC AK CIV 2006-404-006162 19 February 2008.

There the Catholic Church in sought to have the Government recognise at law a tribunal constituted under canon law (the 'Catholic Tribunal'), and give it legal privileges similar to state judicial bodies. Like Muslim Shari'ah tribunals, the Catholic Tribunal deals with family and other personal aspects of religious life, but its findings are not enforceable at law.


The case arose from the refusal by the Catholic Church to provide a woman with information received by the Catholic Tribunal from her ex-husband in the course of its annulment of their marriage. The woman complained to the Human Rights Review Tribunal (the 'Human Rights Tribunal'). The issue was whether this refusal was a breach of the New Zealand Privacy Act.

The New Zealand Privacy Act Principle 6 ('the Privacy Principle') provides that individuals are entitled to information held about them by an 'agency', defined as any person or body, corporate or unincorporate, private or public. However there are some agencies that are exempted from this requirement. These include a court or a tribunal 'in relation to its judicial functions'.

The Human Rights Tribunal, considering the issue an important one to settle, took the matter to the High Court for judicial interpretation. The question before the Court was whether the word 'tribunal' applies to any tribunal acting judicially, such as the Catholic Tribunal (thus exempting it from disclosing personal information), or only those tribunals that are created or otherwise recognised by statute.

The Church's argument

The Catholic Church's barrister, Mr McKenzie QC, argued that, according to the plain language of the Privacy Act, the exemption applied to not only tribunals created by Parliament ('statutory tribunals'), but also those of private bodies such as the Catholic Church, that act 'judicially'.

Mr Mckenzie also claimed that, as a matter of policy, it would be surprising if non-statutory tribunals set up by professional associations and members' clubs to determine matters such as discipline and membership, and church tribunals which also deal with doctrinal and theological issues, which deal with personal information, were not to be included in those bodies exempted from disclosure requirements of the Privacy Act.

Mr McKenzie then referred to the New Zealand Bill of Rights Act ('BORA'), which affirms the right to manifest one's religion in worship, observance, practice and teaching. He said the disclosure and circulation of personal information, transcripts or minutes of proceedings could be damaging and significantly hamper tribunals in the conduct of their proceedings (although he did not elaborate). In submitting a matter to a Church Tribunal, he said, one submits to its practices. Subjecting the Tribunal to the Privacy Act could put the right to practise one's religion in jeopardy.


The Plaintiff's case

Counsel for the Human Rights Tribunal, Mr Stevens, pointed to the two main sources of interpretation of legislation: the actual wording of the legislation and the intentions expressed by parliament enacting it. Mr Stevens argued that the wording and context of the provisions of the Privacy Act gave no indication that private tribunals were to be exempt from the Privacy Provision. The intention to limit tribunals to those established by law (i.e. statutory tribunals) was clear in the history of the Act's passage through Parliament.

Mr Stevens argued that there had to be a 'public interest' in denying a person personal information, that the exemptions in the Privacy Act carried a 'public interest' requirement, and that requirement meant a tribunal must be 'recognised by law' to be exempt. According to legal precedent, to be recognised by law a body acting judicially should be constituted pursuant to an Act of Parliament and, in effect, follow the rule of law (which includes allowing parties to determine the evidence put to the tribunal and cross-examination). In the long run, Mr Stevens concluded, the personal status of people within private bodies is not a matter of public interest.

Pointing to international human rights treaties to which New Zealand subscribes, and the BORA, Mr Stevens recognised there is a right to privacy, which should be supported. Giving expression to this right does not mean that the right to freedom of belief would be hampered, as claimed by the Church.

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About the Author

Meg Wallace is the President of the Rationalist Society of NSW. She is a lawyer and former academic.

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