10 JULY 1997






The Hon Justice Michael Kirby AC CMG 1


The person who was originally expected to open this conference was a Minister of the Crown. Unfortunately, he could not be here today. So you have a cardboard cut-out of a Minister of the Crown speaking to you to open the conference. I may dress like the Minister. I may look like him. I may sound like him. But I lack his power. Why we even have to have somebody to open the conference I am not sure. I think Bruce Slane simply wanted somebody to be here to whom he could make his for more funds for his work of protecting privacy in New Zealand. But appealing to a judge for that purpose is unfortunately not going to be very successful, especially a judge from another place.


It is especially happy for me to be here today. Privacy is an issue that has interested me for a very long time.


Last night I had the pleasure of speaking at the Northern Club, a most beautiful building. I addressed the dinner of the StMore Society. In the course of my address I reviewed the contributions of that great and sainted Lord Chancellor of England to the development of the rules of equity and the principles of chancery law in England and, therefore, throughout the English speaking world. In the course of my remarks I pointed to the fact that it is a seemingly inescapable of every legal system to become encrusted with rules. It was an interesting phenomenon how the English law, having become encrusted, looked externally to the conscience of the Chancellor to stimulate it to a new sensitivity to conscience, to fairness and to justice. It seems to be a feature of legal systems that every now and again they need an external stimulus to bring them back to matters of basic principle.


In the case of privacy it is interesting to observe how the stimulus now comes from outside, although there is, as well, stimulus from within our communities. The main stimulus from outside may be seen in the stimulus of the international principles of human rights which are now such an important part of every civilised legal system. I would suggest that these principles will play an increasingly important part in the development of the law in the future. The Universal Declaration of Human Rights, which will celebrate its fiftieth anniversary next year, was actually written on the back of scraps of paper by a dear friend of mine, the late John Humphrey, a noted Canadian jurist. He did so as he was travelling to the United Nations to work with Mrs Eleanor Roosevelt and Professor René Cassin: writing on paper the fundamental rights of all human beings.


Amongst the fundamental rights recognised in the Universal Declaration of Human Rights, was the right to privacy. That principle was then reflected in the International Covenant on Civil and Political Rights. It is that Covenant which has increasingly stimulated the legal systems of the world. So privacy has had a stimulus from outside. But there is also an internal stimulusfrom the concerns of ordinary citizens in countries such as New Zealand and Australia.


The conference in which we are about to participate is one about topics of lively concern. If you look at the programme you will see that the development of privacy protection does not stand still. Privacy concerns are stimulated by the developments of technology. Back in the time when I first met Mr Slane, and in fact when I first came to this conference centre in 1978, I was Chairman of the Australian Law Reform Commission. The Commission was given the task, as many of you will know, to examine the Australian law on privacy and to develop new law in tune with the needs of the community and with the needs of technology.


In the middle of our inquiry, the OECD in Paris began examining privacy from the international point of view. It did so in the context of transborder data flows. I received an invitation to go to the Paris meeting to participate there on behalf of Australia. I walked down the Champs Elysées. I walked into the magnificent OECD building, even more magnificent than this, with chandeliers and the beauty of French culture. As I was looking at the tourist sites the participants were plotting and planning who should be the chairman of this group. The Americans wanted an Anglophone because they thought an Anglophone would be more in tune with the American principle of the free flow of information. The French did not want to have somebody from North America or from England because they thought they would be too sympathetic to the free flow principle and insufficiently sensitive to the way in which people's privacy could be abused by information systems. Such abuse was fresh in living memory in France where they had seen how the ordinary manilla folders of the Gestapo and the Occupation Forces could destroy lives and civil confidence. Sweden was crossed off. France was crossed off. Ultimately I, who was merely looking around at the tourist sites, was chosen to be the Chairman of that OECD Expert Group. This began my association with privacy and with international institutions.


My work in that Expert Group taught me a number of lessons which I have held in my mind ever since. First, the importance of international law. We live at a moment in history when international law, which has always operated in a world where law has been such a domestic or municipal phenomenon, something confined to a particular jurisdiction, is increasingly going to be important to every country and to every society. Secondly, it taught me that people can cooperate on developing legal principles, even though they have vastly different cultures, different legal traditions, different systems of legal enforcement. As it turned out, in the field of privacy, they also have quite different economic interests to guard. They can nonetheless come together and develop principles which can be useful throughout the world. Of course in the field of privacy there was a special need for international cooperation because of very global features inter-active technology.


In the twenty years since the work of the OECD Expert Group on Privacy we have seen the principles which were developed become highly influential in many countries, including the countries that are here present. We have seen the principles reflected in legislation, in countries as far apart as the Netherlands, Japan, Australia, New Zealand and elsewhere. We have seen the stimulus that can be given to our work in our own countries by the cooperation of civilised human beings from all parts of the world, working together. I believe we will see more of this, not least in areas of the law such as privacy where the technology forces us together to cooperate in our local responses.


They are, at this conference, distinguished Commissioners from New Zealand (Bruce Slane) from Australia, (Moira Scollay) and from Hong Kong (Stephen Lau). We have also participants from India, Papua New Guinea, Western Samoa, the Philippines and perhaps others. If I can refer specifically to Commissioner Stephen Lau, I do not think there would be anybody here present who did not watch with intense fascination the historic ceremony that took place a little more than a week ago when the sovereignty of Hong Kong passed from the United Kingdom to the People's Republic of China. Shortly before the handover, in my capacity as President of the International Commission of Jurists, I wrote to Mrs Anson Chan, the Chief Secretary. I said to her that I hoped that we, who had had such warm, close and professional links with Hong Kong, would be able to maintain such links in the years ahead. Mrs Chan in what must have been one of her last acts as Chief Secretary, and on notepaper bearing the Royal Coat of Arms, wrote in reply. She said that, though it was the fact that Hong Kong would no longer be able to participate in all Commonwealth functions and Commonwealth professional bodies, she hoped that Hong Kong would keep its intellectual links with countries such as Australia, I am sure New Zealand, the other countries of the Commonwealth which have been built up such strong links over 157 years. So it is a wonderful thing to see Stephen Lau. I am sure all of you would want to say to him that we, in Australia and New Zealand particularly (but I would think throughout the Commonwealth of Nations and beyond) would want to keep those links, foster them, improve on them and develop them. We have things to learn from Hong Kong and Hong Kong still has things to learn from us.


So here we are in one of the most beautiful cities in the world reflecting upon our good fortune as citizens of free societies concerned about one of the fundamental human rights which is recognised in the Universal Declaration. It is a right enforceable under the International Covenant on Civil and Political Rights. It is stated in detailed principles in the OECD Guidelines. It is reflected in the statutes of many of our countries. But more important it is reflected in the hearts of our citizens. To them, privacy is a value important for their identity. So we have a very important mission today. It is to look again at privacy. To consider the impact on this value of new technology and new attitudes in the community. And to help the Privacy Commissioners, who do such important work, to develop the vigilant protection of this human right so important to democracy and to personal freedom. In this way, stimulated by developments of international law, we are playing the part of the Chancellors of England in the past, of calling our legal systems back to basic principlesto ethical rules.


It is usual at this moment that the Minister, just before opening the conference, wishes the participants well in their deliberations and promises most faithfully to pay the closest of attention to the outcomes of their deliberations as will be reflected in the conference report. I am not only going to be listening most closely. I am going to be participating. And I really mean it when I say I am going to be watching most closely the conference report. This is an important event for privacy protection. It is also an important event for freedom.


I have great pleasure in opening the Fourth Privacy Issues Forum.


1 Justice of the High Court of Australia. President of the International Commission of Jurists. Formerly chairman of the OECD Expert Groups on Privacy and Data Security.