CTU v NSW Police Force - [2017] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CTU v NSW Police Force [2017] NSWCATAD 204
Hearing dates: 18 April 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
The Tribunal decides not to take any action on the matter.

Catchwords: ADMINISTRATIVE LAW – Privacy – Police exempt from compliance with information protection principles except in relation to their administrative and educative functions – Whether provision of criminal history information for routine criminal history check or national police certificate is an administrative function
ADMINISTRATIVE LAW – Privacy – Where Police held applicant’s personal information in the form of his criminal history – Where applicant claimed that his only conviction was a spent conviction – Where police provided information about the conviction to third parties as part of a routine criminal history check and police check - Whether Police failed to check accuracy of applicant’s personal information before use – Whether conviction was spent as claimed
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Records Act 1991 (NSW)
Police Act 1990 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Cases Cited: AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30
AEC v NSW Police Force [2013] NSWADT 32
AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91
Amado v R [2011] NSWCCA 197
Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78
HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, (2016) 91 ALJR 177
Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431
Re Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424
Waterman and Minister for Immigration and Border Protection [2014] AATA 939
Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7, (2017) 91 ALJR 369
Texts Cited: Macquarie Dictionary Online, ed Susan Butler, Macmillan Publishers Australia 2017
Category: Principal judgment
Parties: CTU (Applicant)
NSW Police Force (Respondent)
Representation:
Counsel:
M Seck (Respondent)
Solicitors:
Beckham Lawyers (Applicant)
NSW Police Force, Office of the General Counsel (Respondent)
Office of the NSW Privacy Commissioner (Privacy Commissioner)

File Number(s): 2016/00378431

REASONS FOR DECISION

There are two main issues in these proceedings.
The first is whether the NSW Police Force was required to comply with the information protection principles in the circumstances of this case. This question turns on whether the NSW Police Force was exercising administrative functions when it processed criminal history checks about the applicant and provided information to third parties about the applicant’s criminal history. If those functions were administrative, the Police’s statutory exemption from compliance with the information protection principles does not apply.
The second issue is whether, if that the statutory exemption does not apply, information provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 204
Decision Date: 23 June 2017

CaseChat Overview and Summary

The case of CTU versus the New South Wales Police Force was brought before the Tribunal to address issues concerning the privacy and handling of personal information by police authorities. CTU sought relief on the grounds that the police had improperly disclosed his personal information, specifically his criminal history, in circumstances that he believed violated privacy principles. The police had provided details of CTU's criminal history to third parties as part of routine checks, leading CTU to assert that the disclosure was unlawful since the conviction in question was spent as per his claim.

The central legal issue before the Tribunal was whether the provision of criminal history information by the police for routine criminal history checks and national police certificates constituted an administrative function, which would exempt the police from compliance with information protection principles. Additionally, it was questioned whether the police had adequately verified the accuracy of CTU's personal information before its disclosure and whether CTU's conviction was indeed spent.

The Tribunal examined the nature of the police's functions and the statutory provisions governing information protection. It found that the provision of criminal history information as part of routine checks was integral to the police's administrative role, thus exempt from strict compliance with privacy principles in these contexts. The Tribunal also assessed whether the police had any duty to verify the accuracy of the personal information before disclosure and concluded that such a duty was not explicitly mandated under the relevant legislation. Furthermore, the Tribunal did not find sufficient evidence to determine that CTU's conviction was spent, as per his assertion. Consequently, the Tribunal decided not to take any action on the matter, upholding the police's actions as within the scope of their administrative functions.

Orders

Orders of the court

The Tribunal decides not to take any action on the matter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CTU v NSW Police Force [2017] NSWCATAD 204
Hearing dates:	18 April 2017
Date of orders:	23 June 2017
Decision date:	23 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The Tribunal decides not to take any action on the matter.
Catchwords:	ADMINISTRATIVE LAW – Privacy – Police exempt from compliance with information protection principles except in relation to their administrative and educative functions – Whether provision of criminal history information for routine criminal history check or national police certificate is an administrative function ADMINISTRATIVE LAW – Privacy – Where Police held applicant’s personal information in the form of his criminal history – Where applicant claimed that his only conviction was a spent conviction – Where police provided information about the conviction to third parties as part of a routine criminal history check and police check - Whether Police failed to check accuracy of applicant’s personal information before use – Whether conviction was spent as claimed
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Records Act 1991 (NSW) Police Act 1990 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW)
Cases Cited:	AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 AEC v NSW Police Force [2013] NSWADT 32 AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91 Amado v R [2011] NSWCCA 197 Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, (2016) 91 ALJR 177 Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431 Re Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424 Waterman and Minister for Immigration and Border Protection [2014] AATA 939 Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7, (2017) 91 ALJR 369
Texts Cited:	Macquarie Dictionary Online, ed Susan Butler, Macmillan Publishers Australia 2017
Category:	Principal judgment
Parties:	CTU (Applicant) NSW Police Force (Respondent)
Representation:	Counsel: M Seck (Respondent) Solicitors: Beckham Lawyers (Applicant) NSW Police Force, Office of the General Counsel (Respondent) Office of the NSW Privacy Commissioner (Privacy Commissioner)
File Number(s):	2016/00378431