AEC v Commissioner of Police (NSW)

[2013] NSWADTAP 30

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AEC v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 30

Hearing dates:

4 June 2013

Decision date:

09 July 2013

Jurisdiction:

Appeal Panel - Internal

Before:

Judge K P O'Connor, President
P Molony, Judicial Member
Z Antonios, Non-judicial Member

Decision:

1. Appeal dismissed.

2. Tribunal's order is corrected to:

The application for review of the respondent's conduct is dismissed for want of jurisdiction.

Catchwords:

JURISDICTION - PRIVACY - Disclosure by Police of complainant's old criminal record to another person - Whether Privacy and Personal Information Protection Act 1998 applicable to Police Force - Tribunal held not - Appeal - Construction and application of section 27 - Appeal dismissed. Privacy and Personal Information Protection Act 1998, s 27

Legislation Cited:

Criminal Records Act 1991
Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Police Act 1990
Privacy and Personal Information Protection Act 1998
State Records Act 1998

Cases Cited:

AEC v Commissioner of Police, NSW Police Force [2012] NSWADT 4
AEC v NSW Police Force (No 2) [2013] NSWADT 32
Commissioner of Police New South Wales v "N" [2003] NSWSC 943
Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78
Director-General, Department of Education and Training v MT (2006) 67 NSWLR 237
Rodriguez v United States (1987) 480 US 522

Category:

Principal judgment

Parties:

AEC (Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

P Timmins (agent for Appellant)
J McDonnell, Crown Solicitor's Office (Respondent)

File Number(s):

139009

 Decision under appeal 

Jurisdiction:

9108

Citation:

AEC v NSW Police Force (No 2) [2013] NSWADT 32

Date of Decision:

2013-02-07 00:00:00

Before:

General Division

File Number(s):

113170, 123111

reasons for decision

1. The appellant has applied to the Tribunal for review of certain conduct engaged in by the NSW Police Force which, in his opinion, contravened his right under the Privacy and Personal Information Protection Act 1998 (the Privacy Act) not to have disclosed personal information about him save in specified circumstances. The Tribunal has rejected his application. (See AEC v NSW Police Force (No 2) [2013] NSWADT 32 (7 February 2013), the principal decision; and also, AEC v Commissioner of Police, NSW Police Force [2012] NSWADT 4 (18 January 2012), dismissing a procedural objection to the application proceeding.) The Tribunal held that the Police Force had the benefit of the immunity from the application of the Privacy Act granted by s 27(1).

1. He now appeals.

1. In February 2010 the appellant's ex-wife (Ms X) sought an apprehended violence order against him in the local court. In an affidavit tendered in June 2010 in subsequent Family Court proceedings, she said:

'During the proceedings in the Local Court when [the appellant] was charged with assault and I sought an AVO in February 2010 the police told me that [the appellant] had a criminal record, which I was unaware about.'

1. It is this disclosure that the appellant challenges as being unlawful. The conviction was recorded in 1981, when he was a young man, and concerned a minor offence. He had understood the conviction to be spent within the meaning of the Criminal Records Act 1991 and had received advice to that effect from the Police Force in 2004. He was told that the record had been expunged in 2003. He therefore assumed that no record remained in circulation within the Police Force, or, at the least, not one that was readily accessible by ordinary officers of the Force.

1. The respondent acknowledges that the conviction was spent, and this disclosure ought not to have occurred; accepting for the purpose that a police officer had been the source of the information as sworn by Ms X. The respondent investigated the matter and found that there had remained a link in the police system (known as COPS) which might have enabled operational police in 2011 to access the spent conviction information. The respondent has provided a written apology, and indicated that measures would be taken to prevent any recurrence.

1. However, as noted, the respondent considers that the appellant's complaint did not engage the Privacy Act because the conduct said to have occurred fell within the immunity from the application of the Privacy Act given to the Police Force.

1. Section 27 provides:

27 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, NSW Police Force, PIC, Inspector of PIC and Inspector's staff and NSW Crime Commission)

(1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission are not required to comply with the information protection principles.

(2) However, the information protection principles do apply to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions.

1. The Tribunal accepted this submission.

1. The appeal raises the same issue. In addition the appellant criticises the way the Tribunal dealt with the process of establishing the relevant facts.

1. We note at this point that the appellant's case before the Tribunal dealt with a further item of conduct, involving disclosure of the information to his employer. The Tribunal also rejected his case in that regard. That aspect of the Tribunal's decision is not appealed.

1. We will deal with the issues raised by the appellant as errors of law.

(1) Whether the Tribunal erred in making the findings and reaching the conclusions it did in the absence of material from the NSW Police Force regarding the circumstances surrounding the disclosure of information about the spent conviction to Ms X

1. We accept the appellant's primary point that in privacy cases where the issue is the propriety of the agency's conduct the agency is in the best position to give a full account of what occurred. The aggrieved person often only has a limited view of what occurred. Here all that the appellant knew was what was revealed by the affidavit of Ms X.

1. It is a matter of judgement for the Tribunal as to whether the agency has given an adequate account of the conduct in issue. Here the Tribunal was dealing with a point as to jurisdiction. The agency accepted that the conduct as described was its conduct for the purpose of the jurisdictional question. In our view, the Tribunal could properly treat the information contained in Ms X's affidavit, sparse as it may seem to the appellant, as sufficient to enable it to address the jurisdictional question.

1. The Tribunal proceeded, as we see it, on the following assumed facts: that a police officer or officers had given information to a person involved in family court proceedings about the person she had taken proceedings against which was adverse to him and favourable to her. In our view, those facts were sufficient to enable the issue of whether s 27(1) or s 27(2), properly construed, prevailed. There was no need at this point of its inquiry for the Tribunal to get more information about what occurred and why.

1. Question (2) in the amended notice of appeal was withdrawn.

1. Questions (3) to (5) are inter-related, and all deal with correctness of the Tribunal's interpretation and application of s 27.

(3) Whether the Tribunal failed to attribute meaning to the words 'in connection with' that precede the reference to 'administrative and educative functions' in s 27(2)

(4) Whether the Tribunal failed to interpret properly the term 'administrative functions', giving no apparent weight to the beneficial nature of the legislation

(5) Whether the Tribunal erred in making the findings and concluding at [31] that the disclosure was not in connection with the exercise of administrative functions

1. The Tribunal had regard to prior relevant Tribunal decisions dealing with the interpretation of s 27, see paras [24]-[32] of its reasons for decision.

1. In the parlance of government, it is often the case that the adjective 'administrative' and nouns which typically follow such as 'functions', 'activities', 'responsibilities', together seek to describe in a wide way the gamut of tasks allocated to the government as a whole or the relevant Minister, portfolio or agency. This wide understanding is reflected in the decision in Commissioner of Police New South Wales v "N" [2003] NSWSC 943 (Cripps AJ).

1. That case arose under s 39 of the Freedom of Information Act 1989, since repealed (FOI Act). Section 39 gave access applicants a broad right of amendment of records of personal information where the 'information is available for use by the agency in connection with its administrative functions'.

1. In that case, the Commissioner argued unsuccessfully that the term 'administrative functions' did not include the keeping of records of a criminal intelligence kind, in that instance incident and observation information kept in the COPS system. Cripps AJ upheld the Appeal Panel's decision which had adopted a wide view of the meaning of 'administrative functions'. He agreed that the administrative functions of the Police Force included the compilation and maintenance of its criminal records, whether conviction histories or criminal intelligence.

1. The FOI Act did not have an immunity provision of the kind found in s 27 of the Privacy Act. The Police Force is given a general immunity, s 27(1)), qualified in the way seen in s 27(2). Tribunal case-law has accepted therefore that the broad interpretation given in N's case is not appropriate. Were such a broad interpretation adopted, all the activities of the Police Force would be excepted from the immunity. The immunity would be deprived of any practical force. The Tribunal has taken the view that that could not have been the intention of the legislature, and that relationship between sub-section (1) and sub-section (2) must be honoured in any interpretation given to the scope of sub-section (2). Sub-section (2) is plainly intended to be a limited qualification to the primary rule seen in sub-section (1).

1. In previous cases, the Appeal Panel has expressed the view that the Police Force's public functions, i.e. those functions that it has been established to perform for the benefit of the community, are covered by the immunity, and the exception in sub-section (2) is addressed to those 'administrative and educative' functions that are of a kind that are not unique to the Police Force.

1. The view has been expressed that the adjective 'administrative' bears in this context the connotation of activities relating to the internal administration of the agency, i.e. activities that are the usual incidents of any organisation whatever its official, public functions may be. See, to that effect, Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 at [20] ff. The Appeal Panel in that case expressed the view that the 'administrative functions' to which s 27(2) refers are those necessary in any agency or any organisation, such as the management of personnel records. The Commissioner accepts this interpretation.

1. It may be that this is too narrow a construction. Section 6 of the Police Act 1990, 'Mission and functions of the NSW Police Force', provides:

6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

police services includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

1. The primary function of the Police Force is the one set out in s 90(2)(a), i.e. 'to provide police services for New South Wales'. Functions vested in the Police Force under sub-section (2)(b) may fall outside the immunity conferred by s 27 of the Privacy Act, for example the functions connected with security and firearms licensing.

1. It is not necessary to address that question any further on this occasion, as this is a case involving the provision of police services (Category (a)).

1. In our view, the Tribunal correctly interpreted the authorities binding on it.

1. While laws designed to furnish citizens with new protections should be interpreted in a beneficial way, that can not be done at the price of disregarding the words of the statute and the context in which they appear. As noted by the Commissioner, the Court of Appeal reinforced this point in its decision in Director-General, Department of Education and Training v MT (2006) 67 NSWLR 237 at [49]-[50]. The Court cited with approval the observation of the US Supreme Court in Rodriguez v United States (1987) 480 US 522 at 525-526:

'... [N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the every essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be law.'

1. In relation to the application to the facts of the construction preferred by the Tribunal (the question (5) point), the evidence was that the police had been engaged in a relationship of information-sharing with a member of the public, and she had been supplied with the information in the context of family court proceedings. The Tribunal accepted that this was conduct connected with the public functions of the Police Force, and fell on the s 27(1) side of the line. In our view it properly applied the provision to the facts before it.

1. We should add finally that the extent of the immunity afforded by s 27(1) is not without controversy. It was examined by the NSW Law Reform Commission in its report Protecting privacy in New South Wales [2010] NSWLRC 127, at [5.54]-[5.68], and Recommendations 5.4 and 5.5. The Commission recommended removal of the immunity or a significant narrowing of its scope.

1. Question (6), which we will not set out, criticises an interpretation provided by the Tribunal in relation to the relationship between the State Records Act 1998 and the Criminal Records Act 1991. The appellant had raised the issue of having the COPS record amended, to which the Commissioner's reply was that the State Records Act prevents action of that kind. The Tribunal expressed a view on this point at [46] of its reasons in support of the Commissioner. In our view, it was unnecessary for the Tribunal to respond to this point given its prior conclusions. The Tribunal's opinion should not be regarded as authoritative.

1. Our provisional view is that the extent of the rights of amendment of a personal record held by the State can be a complex one, and would require at the least a consideration of any relevant privacy laws (it may be that they are not relevant on this occasion because of s 27), any rights conferred by the Government Information (Public Access) Act 2009 (which replaced the FOI Act), as well as the State Records Act and any law relevant to a particular class of records such as the Criminal Records Act.

Terms of Tribunal Order

1. The Tribunal decided correctly that the application was not within jurisdiction, therefore s 55 is not engaged.

1. We will vary the text of the Tribunal's order. The Tribunal's order incorrectly purported to 'affirm' the Commissioner's 'decision'. In the Tribunal's privacy review jurisdiction, the applicant's right is to seek 'review of conduct' the subject of the complaint to the agency. Had the application been within jurisdiction, the orders open to be made by the Tribunal are those listed in s 55, which do not include one 'affirming' a 'decision'.

Order

1. Appeal dismissed.

2. Tribunal's order is corrected to:

The application for review of the respondent's conduct is dismissed for want of jurisdiction.

Decision last updated: 09 July 2013