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JOURNAL OF SOUTH PACIFIC LAW - ARTICLES

Article 4 of Volume 4, 2000

LEGAL CHALLENGES FOR SMALL JURISDICTIONS
IN RELATION TO PRIVACY, FREEDOM OF INFORMATION AND
ACCESS TO JUSTICE*

** By Professor Don Paterson

Introduction

This paper provides a commentary upon three matters that provide legal challenges for small jurisdictions – privacy, freedom of information and access to justice. As examples of small jurisdictions, I have taken the small island countries of the South Pacific of Cook Islands, Fiji Islands, Kiribati, Nauru, Niue, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu. These are all English speaking countries of the South Pacific which share common legal traditions inherited originally from England, and in the context of this paper I refer to them as ‘the small island countries of the South Pacific.’ I will, therefore, not be referring to the larger anglophone countries of the South Pacific, such as Australia, New Zealand and Papua New Guinea, except by way of comparison and background. Nor will I be referring to the francophone countries of the South Pacific, such as French Polynesia, New Caledonia, Wallis and Futuna, which have a different legal tradition.

 

The Right to Privacy

The desire to be left alone, to be able to do things without other people knowing about them, unless one wishes them to know, is a desire which is very much part of human nature. For this reason when the nations of the world agreed at the end of World War II to proclaim the Universal Declaration of Human Rights in 1948 they included in that Declaration of Human Rights the following:

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Likewise when the countries of Western Europe decided to form the European Economic Community, which later became the European Community, and in 1950 signed the European Convention for the Protection of Human Rights and Fundamental Freedoms, they affirmed the right to privacy as follows:

Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

One might have expected that when in the 1960s and 1970’s written Constitutions were drawn up to provide for the independence of the British, Australian and New Zealand dependencies in the South Pacific, that the provisions inserted in these Constitutions to recognise the fundamental rights and freedoms of the peoples of these countries would have included amongst the rights and freedoms so recognised, the right to privacy. But this did not happen.

Although the Constitutions which provided for the independence of Fiji in 1970, Kiribati in 1979, Solomon Islands in 1978, Tuvalu in 1978 and Vanuatu in 1980 recognised, in s9, s9, s9, s9 and art 5(1) respectively, the right of a person not to be subjected to a search of his person or property without his consent, they did not specifically refer to any more general right of privacy. When the Constitution of Cook Islands which granted self-governance in 1965 was amended in 1981 to provide for fundamental rights and freedoms, which had been omitted in 1965, there was no mention of any right to privacy. The Constitution of Nauru which provided for the independence of that country in 1968 did contain in a prefatory section, (art 3) a reference to the right of a person to ‘respect for his private and family life,’ but this was subsequently held by the Supreme Court of Nauru to be only an introductory provision and not to provide a substantive right enforceable by the Court.1

It was not until a very comprehensive review was undertaken in 1996, of the Constitution of Fiji Islands, that a recommendation was made that the Constitution of Fiji Islands should include recognition of a right to privacy: The Fiji Islands; Towards A United Future, Report of the Fiji Constitution Review Committee.2 This recommendation was accepted, and when the Constitution was re-enacted in 1997, it contained a section recognising the right to privacy:

Section 37

Every person has the right to personal privacy, including the right to privacy of personal communications.

The right set out in subjection (1) is subject to such limitations prescribed by law as are reasonable and justifiable in a free and democratic society.

It is now necessary for the Government of the Fiji Islands to determine what measures should be taken to protect the right of all persons to their privacy that are reasonable and justifiable in a free and democratic society. In other small island countries, of the South Pacific, although there is no constitutional recognition of a substantive right to privacy it is only a matter of time before a claim to such protection is made.

Such protection is likely to be sought firstly because already in most such countries government agencies have commenced the collection and storage on computers of a great deal of information relating to individuals. The opportunities and possibilities of access to such information by a larger and larger number of people and for a larger number of purposes is now much greater than before. Secondly, although the use of sophisticated electronic and optical devices by law enforcement agencies is not very extensive in the South Pacific region yet, it is only a matter of time before the increasing warfare against drug-trafficking and money-laundering will require the more frequent use of such equipment. Thirdly, and on rather a different plane, the following and shadowing of a person, either with or without talking, for the purposes of harassment, is conduct which is known to the police of most small island countries of the Pacific. Fourthly, and on a different plane again, there has been concern in recent years at the way in which politicians in parliament, and reporters in newspapers and on radio and television, reveal private details of individuals. All of these represent various methods of interference with privacy.

There are essentially two ways of approaching this interference with privacy. One approach, is the general approach of prohibiting excessive or unreasonable intrusions into a person’s privacy except when permitted by that person or authorised by law. This approach leaves it for the courts to determine what is an excessive or unreasonable interference with privacy. It is the approach that has been adopted in some Canadian provinces, for example, British Columbia and Saskatchewan. On the other hand, although both Australia and New Zealand have enacted legislation which is called a Privacy Act, that is, the Privacy Act 1958 (Cmth) and the Privacy Act 1993 (NZ), in fact they deal mainly with a certain aspect of it, that is, information privacy, the privacy of personal information stored manually or on computers (see below), and are examples of a second, and more particularised approach to the protection of privacy.

This second approach is a more specific or particularised approach; that is, to enact legislation that deals with those specific forms of intrusions into privacy that have caused most difficulties and public concern. Thus in some neighbouring countries legislation has been enacted which regulates or prohibits the following specific forms of interference with privacy:

The challenge for small island countries of the South Pacific is to determine which approach they will adapt with regard to the protection of privacy. The issue which faces Fiji Islands immediately, and which will face other small island countries of the Pacific in the foreseeable future, is: should one try to deal only with those particular forms of interference with privacy that have become most pressing, that is those that are most apparent and most objectionable, or should one try to tackle the problem on the broad front with a general attack against all unreasonable or excessive interference with privacy, leaving it to the courts to determine what they consider to be unreasonable or unwarranted or excessive interference with the privacy of individuals?

In those countries that have Law Revision Committees or Commissions (see later), this is clearly an appropriate topic for their consideration. In countries which do not have such Committees, an ad hoc committee drawn partly from government and partly from the private sector, could, and I would suggest should, be set up to assist the law drafts persons. This is not a matter that should just be left to legal draftspersons. It involves everybody, and so a body reflecting the views of the public, as well as of the government, should be established to discuss and determine the most suitable approach to adopt for the control of interference with privacy.

Before concluding this section, I would like to mention two particular aspects of privacy that are causing serious concerns in the small island countries of South Pacific at the present time. First, there is the unlimited power of legislators to reveal private details of a person in the legislature with complete legal immunity. Whilst one may accept that legislators should have an unlimited power to say what they like about other legislators, who are present in the legislature and able to defend themselves, the same is not true of ordinary members of the public. The unlimited freedom of speech of legislators was a hard-earned right in earlier times in Britain, and one would not wish to say or do anything to reduce the effectiveness of legislators in performing their proper task of making laws for the benefit of the country, and scrutinizing and calling to account the actions of the executive government for that purpose.

But when legislators extend their comments to describe the private lives of members of the public who are not members of the legislature or of the executive, then this can surely be only justified on the ground that it is for the public benefit or in the public interest. Attempts in the past to put some legal curbs on the utterances of legislators so for as they affect private individuals have failed. But that does not mean that this issue is one which small island countries of the South Pacific are not capable of solving in a way which is more just for individual members of the public than the present law. I would, therefore like to place it on the table for consideration.

The second aspect of privacy that is proving troublesome at present in some small island countries of the South Pacific is the privacy that is granted by legislation to off-shore banking by exempt or overseas companies. These companies are registered in a country but do not carry on business in the country, except with the permission of government. In order to attract a flow of overseas funds into the country, and to attract banking and commercial transactions, which could be made subject to duties and charges, some small island countries in the South Pacific, that is, Cook Islands, Nauru, Samoa and Vanuatu, have legislated to allow for companies carrying on business outside the country to be incorporated and registered inside the country. A principal attraction of this for overseas companies is that these countries of registration have very low or nil rates of taxation. A further attraction is that the legislation provides that the records of such companies are not subject to inspection by members of the public or by government administrators as records of other companies registered in the country are. No information about off-shore companies can be obtained without a court order. As a result there is no way, without such an, for membership of these companies to be known, nor the sources, nor the destinations, of their funds. Because of this, there has been much concern in recent times that some exempt companies in some small island countries are being used for the laundering of the proceeds of drug – trafficking and Mafia operations on the other side of the world. Very recently, that is, late 1999, several prestigious US banks announced that they had indefinitely suspended the transmission of funds to companies registered in Nauru and Vanuatu, for fear that they may be involved in the transfer of illegally acquired funds. If this trend increases it could cripple the operation of exempt companies, which would have serious repercussions for the economies of some small island countries of the South Pacific.

Here then is a problem relating to privacy, in small island countries of the South Pacific which is the opposite of the previous one; the problem is not of too much interference with privacy, but of insufficient interference. If the concept of exempt companies is not to be placed at great risk it is necessary to devise some means of checking the sources and destinations of overseas funds of exempt companies to ensure that they are legitimate. This has to be done by some body or bodies that will be respected by the international banking community, and I would like to place this aspect of privacy also on the agenda for urgent consideration in small island countries of the South Pacific.

 

Freedom of Information

The concept of freedom of information is quite a new one for small island countries, of the South Pacific. When Great Britain acquired the colonies of Fiji in 1875 and of Gilbert and Ellice Islands (now Kiribati and Tuvalu) in 1916 they became parts of Her Majesty’s dominions and therefore became subject to the Official Secrets Act 1889, and its successor the Official Secrets Act 1911, enacted by the British Parliament. These prohibited the unauthorised disclosure of material by any Government employee. The legislation was expressly stated to apply anywhere in the Her Majesty’s Dominion and in 1986 was held to be in force in Fiji.3 These same Official Secrets Acts of the United Kingdom, being Acts of general application in force in England, also applied, under the terms of the Pacific Order 1893, to the British protectorate of British Solomon Islands, to British subjects and optants in the New Hebrides, until the promulgation of the Official Secrets Joint Regulation, 1980, JR 15/1980, and also to the Gilbert and Ellice Islands Protectorate prior to 1916. The Cook Islands, Niue and Samoa which were dependencies of New Zealand, although not subject to this British legislation, became subject to the provisions of the Official Secrets Act 1951 of New Zealand, and Nauru became subject to the terms of Part VII of the Crimes Act 1914 of Australia, and these provisions likewise prohibited the disclosure by Government employees of information to unauthorised persons.

After World War II, however, the legal basis for a right to access to government information was laid, although for many years it remained dormant, unrecognised and unactivated. When all the countries of the world assembled to proclaim the Universal Declaration of Human Rights 1948 they declared a right to freedom of information:

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and import information and ideas through any media and regardless of frontiers.

Again when the countries of Europe drew up the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 they reaffirmed the right to freedom of expression:

Article 10

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of this freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

When during the 1960’s and 1970’s written Constitutions were prepared to provide for the independence of Fiji (1970), Kiribati (1979), Nauru (1968), Solomon Islands (1978), Tuvalu (1978), Vanuatu (1980) and Western Samoa (1962), provisions were inserted recognising fundamental rights and freedoms which were modelled in the Universal Declaration and the European Convention. One would therefore have expected that those provisions would have contained recognition of the right to freedom of expression including freedom to seek receive and impart information. Some Constitutions did in fact do so, and included express recognition of the freedom of information (see Fiji (s 12), Kiribati (s 12), Solomon Islands (s 12), and Tuvalu (s 112)). Other Constitutions (see Nauru, (art 12), Vanuatu (art 5(1)) and Western Samoa (art 13(1)) recognised a right to freedom of expression without amplifying that it included a right to freedom of information. The provisions in the Constitutions of Fiji and Tuvalu were carried forward into the new Constitutions that were promulgated for these countries in 1990 and 1986 respectively. The Constitution of Tonga (art 7) retained recognition of a right to freedom of speech which had been included ever since the Constitution was first enacted in 1875. When the Cook Islands attained self-governing status in 1965 the Constitution that was enacted by the New Zealand Parliament did not include any fundamental rights provisions, but an amendment in 1981 by the Cook Islands Parliament included a right to freedom of expression without amplification to freedom of information. The Constitution of Niue did not contain any fundamental rights provisions when it was enacted in 1974, and it still does not do so.

Thus all the small island countries of the South Pacific, except Niue and Tokelau, contain provisions which recognise freedom of expression, and four of these expressly recognise freedom of information, that is, Fiji, Kiribati, Solomon Islands and Tuvalu. One might reasonably have expected that this would have stimulated some legislative and administrative movement in these countries to effectuate access to governmental information. But this has not happened.

It was only when the Constitution of Fiji Islands was subjected to a fundamental review in 1995/96 that it was accepted that a Freedom of Information Act should be enacted. Important recommendations in this regard were made by the Constitution Review Commission in its report, ‘The Fiji Islands: Towards A United Future’.4 This report recommended that the Official Secrets Act 1911(UK) should be replaced by an Official Information Act which should provide that information held by government should be made available to people, unless there was a good reason to refuse it, such as threat to national security, public order, economic stability, commercial transactions, and legal privilege. It was recommended also that individuals should have an opportunity to inspect and, if necessary, correct, personal information held about them by government.

These recommendations were accepted by the Parliament of Fiji Islands which provided as follows in the Constitution which it enacted in 1997 and which came into force on 27 July 1998:

Section 134

As soon as practicable after the commencement of this Constitution, the Parliament should enact a law to give members of the public rights of access to official documents of the government and its agencies.

In response to this constitutional directive, a draft Bill for an Official Information Act has now been prepared by the Ministry of Information of Fiji Islands and is being circulated for comment. It is to be expected that a similar initiative will be taken by other small island countries in the South Pacific. This is especially likely since the Commonwealth Law Ministers, in their meeting in Trinidad and Tobago, 5-7 May 1999, expressly resolved that countries of the Commonwealth should promote freedom of information and adopted a series of principles and guidelines to that end, and instructed the Commonwealth Secretariat to take steps to promote these principles and report progress at their next meeting.5

It is very important, for reasons that were recognised and articulated by the Fiji Constitution Review Committee, that this initiative to improve access to government information does fare well. A modern democracy cannot operate properly if people cannot know and judge accurately what the government is doing, and the reasons why it takes the decisions and actions it does, and this is necessary not only periodically at the time of elections, but continually throughout the year. Moreover many aspects of government today require participation and support by people, and that participation and support cannot fully occur unless people have a full knowledge of what is involved.

Small island countries of the South Pacific are not bereft of models and precedents to consider when preparing an Official Information Act. In 1982 such Acts were enacted for the Commonwealth of Australia (Freedom of Information Act 1982), Canada (Access to Information Act, Sc. 1980-81-82, C111) and New Zealand (Official Information Act 1982). In addition, similar legislation has been enacted in the Australian states: Freedom of Information Act 1982 (Vic), Freedom of Information Act 1989 (ACT), Freedom of Information Act 1989 (NSW), Freedom of Information Act 1991 (SA), Freedom of Information Act 1991 (Tas), Freedom of Information Act 1992 (Qld), Freedom of Information Act 1992 (WA).

These overseas models will no doubt make the preparation of legislation to improve access to governmental information in small island countries of the South Pacific much easier than if there were no such models available. On the other hand it is very important that they are not just copied blindly and enacted without very careful awareness of the issues involved, and of the administrative and social context in which the legislation is to operate.

It is clear that in overseas countries some difficulties have emerged in the implementation of the Freedom of Information legislation (hereafter referred to as FOI legislation). It has not been all plain sailing. ‘Discussion Paper No 59 Freedom of Information’, produced by the Australian Law Reform Commission, draws attention to a number of difficulties in the operation of FOI legislation in Australia: lack of support from government departments; high fees that may be charged which serve