Legal Challenges for Small Jurisdictions in Relation to Privacy, Freedom of Information and Access to Justice (Article) [2000] JSPL 13; (2000) 4 Journal of South Pacific Law

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.