94 Protection and privileges of witnesses, etc

(1)

Except as provided in section 119, every person shall have the same privileges in relation to the giving of information to, the answering of questions put by, and the production of documents and things to, the Commissioner or any employee of the Commissioner as witnesses have in any court.

(1A)

Nothing in subsection (1) prevents the Commissioner or any employee of the Commissioner from—

(a)

requiring, under section 91, the furnishing of any information or the production of any document or thing which is the subject of a complaint under Part 8 and in respect of which privilege is claimed by any person; and

(b)

considering the information or inspecting any such document or thing—

for the purpose of determining whether the information, document, or thing would be properly withheld, but not so as to give the Commissioner or employee any information, or enable the Commissioner or employee to make any use of the information, document, or thing, that he or she would not, apart from this subsection, be entitled to.

(1B)

On the production of any information, document, or thing pursuant to subsection (1A), the Commissioner or any employee of the Commissioner—

(a)

must not, without the consent of the producer of the information, document, or thing, and of any person who is the subject of the information, document, or thing, release the information, document, or thing, or any information derived from the document or thing, to any person other than—

(i)

the producer of the information, document, or thing; or

(ii)

any barrister or solicitor engaged by the Commissioner for the purpose of providing legal advice as to whether the information, document, or thing would be properly withheld by that producer under subsection (1); or

(iii)

where the Commissioner gives his or her opinion on the claim of privilege to the Director of Human Rights Proceedings under paragraph (b), to the Director of Human Rights Proceedings:

(b)

may give his or her opinion only to the parties to the complaint or to the Director of Human Rights Proceedings or to the Human Rights Review Tribunal as to whether or not the claim of privilege is valid:

provided that nothing in this paragraph prevents the Commissioner or any employee of the Commissioner from releasing, either generally or to any particular person, the opinion in a form that does not identify either the producer of the information, document, or thing or any person who is the subject of the information, document, or thing:

(c)

must not take into account the information or any information in the document or thing in forming any opinion concerning the release of any other information.

(2)

No person shall be liable to prosecution for an offence against any enactment, other than section 127, by reason of that person’s compliance with any requirement of the Commissioner or any employee of the Commissioner under section 91.

Compare: 1975 No 9 s 19(5), (7); 1977 No 49 s 73(3), (6); 1991 No 126 s 26(1), (4)

Section 94(1A): inserted, on 17 September 1997, by section 2 of the Privacy Amendment Act 1997 (1997 No 71).

Section 94(1B): inserted, on 17 September 1997, by section 2 of the Privacy Amendment Act 1997 (1997 No 71).

Section 94(1B)(a)(iii): amended, on 22 October 2003, by section 5(1) of the Privacy Amendment Act 2003 (2003 No 94).

Section 94(1B)(b): amended, on 22 October 2003, by section 5(1) of the Privacy Amendment Act 2003 (2003 No 94).

Section 94(1B)(b): amended, on 22 October 2003, by section 5(2) of the Privacy Amendment Act 2003 (2003 No 94).