EFR v Commissioner of Police

[2020] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EFR v Commissioner of Police [2020] NSWCATAD 159
Hearing dates:	16 April 2020
Date of orders:	23 June 2020
Decision date:	23 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Pearson, Principal Member
Decision:	(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant or her agent is prohibited. (2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.
Catchwords:	ADMINISTRATIVE LAW – privacy – exemption – NSW Police Force - administrative and educative functions
Legislation Cited:	Police Act 1990 Privacy and Personal Information Protection Act 1998 Young Offenders Act 1997
Cases Cited:	AEC v NSW Police Force [2013] NSWADT 32 AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 CTU v NSW Police Force [2017] NSWCATAD 204 DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193 DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39 HW v Commissioner of Police, NSW Police Service [2003] NSWADT 214
Category:	Procedural and other rulings
Parties:	EFR (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: ECI (Agent) (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00347068
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant or her agent is prohibited.

REASONS FOR DECISION

1. On 5 November 2019 ECI applied to the Tribunal on behalf of her daughter, EFR, for review under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) of conduct of the respondent Commissioner of Police alleged to be in breach of the information privacy principles relating to use and disclosure of personal information.

2. ECI had applied for a privacy internal review by letter dated 12 July 2019, enclosing letters of complaint dated 10 July 2019 to the Law Enforcement Conduct Commission and the Department of Education. The respondent could find no record of that correspondence and did not conduct an internal review. On 28 October 2019 ECI was advised by email that s 27 of the PPIP Act provided an exemption for NSW Police.

3. The parties participated in a mediation, which was unsuccessful in resolving the matter. The matter was listed for determination of the issue of whether s 27 of the PPIP Act applies, so as to exempt the NSW Police Force from compliance with the information protection principles in the PPIP Act.

4. The name of the applicant in the proceedings has been changed. The application was lodged in the name of ECI, mother of EFR. EFR has provided consent for the application to be brought in her name, and for her mother to act on her behalf. Leave was granted on 18 February 2020 for ECI to act as EFR’s agent.

Agreed Facts

5. The parties have provided a Statement of Agreed Facts for the purposes of the determination of the issue of whether s 27 of the PPIP Act applies. Details have been redacted in order to avoid identifying ECI or EFR.

1.1   On 14 June 2019, at approximately 3.40pm, the applicant, EFR, and four other juveniles, all wearing the [School] uniform, attended [Shopping Mall]. The 5 juveniles were seen by security and observed by the Loss Prevention Officer stealing various food items from [Store].

1.2   The Loss Prevention Officer then informed NSW Police Leading Senior Constable Nicole Parker and Sergeant Dameon Flakelar proceeded to stop the 5 juveniles a short distance from [Store]. The Police officers, LSCON Parker and Sgt Flakelar, displayed their identification and introduced themselves by stating their names, ranks and places of work.

1.3   The Police officers then escorted the 5 juveniles to a private room within the shopping mall. When questioned by LSCON Parker and Sgt Flakelar, the 5 juveniles denied stealing the items. The 5 juveniles were then notified that a search would be conducted of their bags whereupon EFR admitted to stealing items valued at $8.20.

1.4   The legal guardians of the 3 juveniles who had admitted to stealing, were contacted by LSCON Parker and were informed of the incident. The legal guardians attended the shopping mall shortly after to collect their children.

1.5   LSCON Parker informed EFR’s father, when he came to collect EFR, that EFR would likely be dealt with under the Young Offenders Act 1997, and discussed this process and details of the incident.

1.6   On 20 June 2019, LSCON Parker telephoned ECI, agreed an appointment time of 3pm Saturday 20 June 2019 to go through the process and advised her that, if there were an admission of guilt, EFR would receive a notice of intention to issue a caution. ECI asked for clarification as to whether a warning or a caution would be issued. LSCON Parker advised that a warning could not be given as the alleged offence was not a summary offence.

1.7   On 21 June 2019, purportedly pursuant to a Memorandum of Understanding between NSW Police and the Department of Education (the MOU) (Annexure A), LSCON Parker telephoned [the School] and informed [Acting Principal] of the incident at [Shopping Mall] and provided the details, including the date, time and location of the incident, the names of the juveniles including EFR and the value of the items stolen.

1.8   On 21 June 2019, ECI contacted LSCON Parker’s supervisor, Sergeant Church, to complain and ascertain why the school was contacted. Sergeant Church advised ECI that the school was notified of the incident pursuant to the MOU.

1.9   On 29 June 2019, EFR and ECI attended [Police Station]. LSCON Parker advised EFR and ECI of their rights to contact Juvenile Legal Aid, which they declined. EFR provided a completed Juvenile Hand-Written Statement, admitting to the offence of shoplifting. EFR was informed that she was eligible for a Youth Caution which had been booked for Tuesday 9 July 2019 at 9am.

1.10   On 4 July 2019, EFR was issued with a Notice of Caution under the Young Offenders Act 1997.

1.11   On 9 July 2019, EFR and ECI attended [Police Station] to meet with Specialist Youth Officer Robyn Jennings, who issued EFR with a Caution.

Relevant legislation

6. The internal review application made by ECI on behalf of EFR complained of a breach of the information protection principles relating to use and disclosure of personal information, as provided in ss 17 and 18 of the PPIP Act:

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless—

(a)   the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b)   the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c)   the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

18 Limits on disclosure of personal information

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2)   If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

7. The respondent Commissioner relies on s 27 of the PPIP Act, which provides:

27 Specific exemptions (ICAC, ICAC Inspector and Inspector’s staff, NSW Police Force, LECC, Inspector of LECC 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 Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct 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 Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions.

8. In her submissions, EFR relies on s 22 of the PPIP Act, which provides:

22 Operation of Division

Nothing in this Division authorises a public sector agency to do any thing that it is otherwise prohibited from doing.

9. The applicant also relies on ss 65 and 66 of the Young Offenders Act 1997, which provide:

65 Publication and broadcasting of names

(1)   The name of any child dealt with under this Act, or any information tending to identify any such child, must not be published or broadcast, whether before or after the matter involving the child is finally dealt with under this Act.

(2)   A person who publishes or broadcasts the name of any child or any information the publication or broadcasting of which is prohibited by subsection (1) is guilty of an offence.

Maximum penalty—500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both, in any other case.

(3)   Subsection (1) does not prohibit—

(a)   the publication or broadcasting of an official report of the proceedings of a court that includes the name of any child or any information the publication or broadcasting of which would otherwise be prohibited by subsection (1), or

(b)   the publication or broadcasting of the name of a child or any information about such a child who is over the age of 16 years at the time of publication or broadcasting with the consent of the child.

(4)   For the purposes of this section, a reference to the name of a child includes a reference to any information, picture or other material that identifies the child or is likely to lead to the identification of the child.

66 Disclosure of records

(1)   A person who acquires information or prepares a record in the exercise of functions under this Act must not, directly or indirectly, divulge the information to another person except in the exercise of functions under this Act.

Maximum penalty—500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both, in any other case.

(2)   Despite subsection (1), information may be divulged in the following circumstances—

(a)   records of, or relating to, cautions and conferences may be divulged to the child, a person responsible for the child or a legal representative of the child,

(b)   records of, or relating to, cautions and conferences under this Act may be divulged to an investigating official, specialist youth officer, conference convenor, conference administrator, the Director of Public Prosecutions or a court for the purpose of determining whether or not to take action under this Act,

(c)   records of, or relating to, cautions and conferences under this Act may be divulged to the Children’s Court for the purpose of making a decision concerning sentencing,

(d)   records of, or relating to, warnings under this Act may be divulged to a youth liaison officer for the purpose of taking action under section 16A,

(e)   records of, or relating to, cautions and conferences under this Act may (subject to any regulations made for the purposes of subsection (3)) be divulged to an authorised officer of the Department of Justice,

(f)   records of, or relating to, warnings, cautions and conferences under this Act may (subject to any regulations made for the purposes of subsection (3)) be divulged to a person employed in the Bureau of Crime Statistics and Research,

(f1)   records of, or relating to, warnings, cautions and conferences under this Act may (subject to any regulations made for the purposes of subsection (3)) be divulged to a person employed in the Australian Bureau of Statistics or the Australian Institute of Criminology, but only if the name and other information identifying a person to whom any such record relates have been removed,

(g)   records of, or relating to, warnings, cautions and conferences under this Act may (subject to any regulations made for the purposes of subsection (3)) be divulged to an authorised officer of the Department of Justice for use in connection with the Department’s Youth on Track scheme or such other early intervention or diversionary program administered by the Department that is prescribed by the regulations,

(h)   any records divulged to an authorised officer of the Department of Justice under paragraph (g) may (subject to any regulations made for the purposes of subsection (3)) be divulged by an authorised officer of the Department to a non-government organisation engaged by the Department to provide services in connection with the Department’s Youth on Track scheme or such other early intervention or diversionary program administered by the Department that is prescribed by the regulations.

(2A)   Despite subsection (1), information (including records) referred to in that subsection may (subject to any regulations made for the purposes of subsection (3)) be divulged to the Ombudsman, or a person authorised by the Ombudsman, for the purposes of the exercise of any of the functions of the Ombudsman.

(2B)   Despite subsection (1), information (including records) referred to in that subsection that is in the form of statistical data and does not identify any person to whom the information relates may—

(a)   be divulged to the Minister or a person employed in the Department of Justice who is involved in the administration or execution of this Act, and

(b)   be included in any report to Parliament.

(3)   The regulations may make for provision for or with respect to the divulging of records in the circumstance referred to in subsection (2) (e)–(h) or (2A).

(4)   In this section—

authorised officer of the Department of Justice means any of the following persons employed in the Department—

(a)   the Secretary,

(b)   a Deputy Secretary,

(c)   the Chief Executive of Juvenile Justice or a Deputy Chief Executive of Juvenile Justice,

(d)   a juvenile justice officer,

(e)   such other persons employed in the Department (or persons belonging to a class of employee) as may be prescribed by the regulations.

Submissions

Respondent’s submissions

10. The respondent Commissioner submits that s 27(1) of the PPIP Act confers a blanket exclusion from compliance with the information protection principles (IPPs) in respect of all of its activities, subject only to the qualification in s 27(2). The IPPs will apply to particular conduct of the respondent only if that conduct is “in connection with” the exercise of the “administrative and educative functions” of the NSW Police Force. While the respondent acknowledges that the words “in connection with” in this context should be taken to be of broad import, having regard to the beneficial nature of the PPIP Act, the present facts and circumstances do not fall within the meaning of the qualification.

11. The respondent submits that the disclosure to the School was made in accordance with the Memorandum of Understanding between NSW Police and the Department of Education (the MOU), which provides:

Through its work in law enforcement, NSWP may become aware of information that needs to be shared with Principals in order to ensure that the school environment can be made safer for all students and staff. The information should be exchanged between NSWP and schools subject to the provisions of legislation which may be enforced from time to time (p.2) … Information would be provided by NSWP for law enforcement and public safety purposes in the context of the need to maintain a safe and secure school environment …This information should be provided by NSWP solely to increase the school’s capacity to maintain safety and security and according to the collection principles in the relevant privacy legislation or codes (p.3).

12. The respondent submits that in any event it is not necessary to rely on the MOU, as s 27 itself allows non compliance with the IPPs. Its conduct cannot be said to be “in connection with the exercise of [its] administrative and educative functions”. The respondent acknowledges that the conjunction “and” can be read as “or”, however such a function should be understood as limited to the internal corporate services functions set out at [30] in HW v Commissioner of Police, NSW Police Service [2003] NSWADT 214 and endorsed in Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 at [20].

13. Even if the broader construction of “administrative” favoured in AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 is applied, the respondent has a statutory function of providing “police services” and doing anything incidental to the exercise of those functions: s 6(2)(a) and (c) of the Police Act 1990. The term “police services” is defined in s 6(3)(a) to include “services by way of prevention and detection of crime”.

14. The respondent submits that it is incidental to its function of preventing and detecting crime that it notify those responsible for young persons committing a crime, in this case, the applicant’s parents and, especially as the offence was committed while the applicant was in school uniform, the Principal of her school.

Applicant’s submissions

15. The applicant submits that there were two prohibitions under the Young Offenders Act on the respondent from disclosing information that identified EFR to the School; and accordingly s 22 of the PPIP Act applied, and the general exemption in s 27(1) of the PPIP Act was not available.

16. First, the respondent was prohibited from disclosing information about the alleged offence pursuant to s 65(1) of the Young Offenders Act 1990. At the time of the alleged offence EFR was aged 15, and her consent was not sought or obtained for disclosure of her personal information to the School, and the exemptions in s 65(3) of that Act do not apply. Section 27 of the PPIP Act is located in Part 2 Div 3 of the PPIP Act, s 22 of which provides that “Nothing in this Division authorises a public sector agency to do any thing that it is otherwise prohibited from doing”. The applicant contends that the telephone call from the respondent to the School was a publication that was prohibited by s 65(1) of the Young Offenders Act and therefore, pursuant to s 22 of the PPIP Act, the exemptions in s 27(1) of the PPIP Act are not available to be relied upon by the respondent.

17. Secondly, for the purposes of s 66(1) of the Young Offenders Act the respondent would have, had it followed NSW Police procedure, prepared a record on 14 June 2019 of the apprehension of EFR, the subsequent interview with her and the discussions with her father when he collected her; and a record of the conversation between ECI and LSCON Parker on 20 June 2019. The respondent was required to determine under s 9(2) of the Young Offenders Act whether the alleged offence was an offence covered by that Act and whether EFR should have been dealt with under Part 3 or 4 or the matter referred to a specialist youth officer under Part 6. The determinations made that EFR could be dealt with under Part 4 of the Young Offenders Act and the arrangements made for a caution to be given were made no later than 20 June 2019.

15. The applicant submits that nothing in the MOU obliged the respondent to provide information about the alleged offence to the School. LSCON Parker did not ask the School any questions about EFR or seek assistance in connection with investigation of the alleged offence by EFR at the time of apprehension; the alleged offence occurred at the shopping mall approximately 2km from the School and after school hours, 7 days before the School was notified; and it is doubtful that there was a need to notify the School on the basis of “safety and security”. There is nothing in the MOU which gave the respondent authority to disclose any and all information regarding the alleged offences that would be consistent with the blanket exemption in s 27, and to the contrary, the MOU is specific about the limited information that is able to be disclosed and shared and is expressly stated to be subject to the PPIP Act.

16. The applicant submits that the provision of information to the School, providing criminal history information in detail, was an administrative function, relying on CTU v NSW Police Force [2017] NSWCATAD 204. The respondent had, but for the formalities of issuing a caution to EFR, concluded the investigation into the alleged offence. It is illogical that the wearing of a school uniform would be the determining factor as to whether a task undertaken by police was incidental to the prevention or detection of a crime.

Respondent’s reply submissions

20. In reply, the respondent submits that s 22 of the PIPP Act does not apply, as none of the specific exemptions including s 27 “authorises” a public sector agency to do anything that it is otherwise prohibited from doing; the exemptions do not “authorise” conduct but preclude such conduct from constituting a breach of the IPPs.

21. The respondent submits that ss 65 and 66 of the Young Offenders Act are not relevant to the proceedings: there was no “publication” or “broadcasting” in the circumstances; and to the extent that s 66 might be relevant, divulging information to the School would fall within the exception in s 66(2)(a) as divulging information to a “person responsible” for EFR which could include the school Principal, given that the applicant was a 15 year old school student in her school uniform at the time of the commission of the offence.

22. The respondent accepts that there is nothing in the MOU that obliges it to provide information about the offence to the school, rather it sets out circumstances in which information “should” be provided. The respondent submits that “administrative functions” should be understood as limited to the internal corporate services functions as set out in HW and endorsed in YK. The decision in CTU on which the applicant relies does not support her submission that providing information about every detail of a person’s criminal history is an administrative function. Further, the respondent was not providing the applicant’s “criminal history” at all, rather it was disclosing to an interested party a criminal event, which was plainly a law enforcement rather than an administrative function.

Discussion and findings

23. The information protection principles (IPPs) are provided in Div 1 of Part 2 of the PPIP Act, in ss 9-19. Div 2 of Part 2 includes general provisions, including s 20, which states that the IPPs apply to public sector agencies, and s 21, which states that a public sector agency must not do anything or engage in any practice that contravenes an IPP applying to the agency.

24. Div 3 of Part 2 provides specific exemptions from the principles. The respondent Commissioner relies on the specific exemption applicable to the NSW Police Force and other specified law enforcement agencies in s 27(1) of the PPIP Act. The exemption granted by s 27(1) does not apply to those agencies “in connection with the exercise of their administrative and educative functions”. The interpretation of s 27, and in particular, the term “administrative” as used in s 27(2) of the PPIP Act, has been considered in a number of decisions of this Tribunal and its predecessor, the Administrative Decisions Tribunal.

25. In HW v Commissioner of Police, NSW Police Service [2003] NSWADT 214 the Tribunal distinguished between what it described as “core” responsibilities, which would not be described as “administrative”, and other responsibilities which are not part of the core responsibilities of NSW Police:

25   The question therefore is where does the conduct in issue lie along the spectrum of the operational areas identified by s 27. The section seeks, I consider, to draw a distinction between the core responsibility of the Police Service and its ‘administrative’ and ‘educative’ functions.

26 The provision of ‘police services’ could perhaps be described as the core responsibility. Another way it was put in submissions was that its core responsibility was ‘law enforcement’. The Police Act 1990 s 6 provides that the Police Service has three functions, the first of which is ‘to provide police services for New South Wales’. ‘Police services’ are defined as follows:

"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.

27.   A broad interpretation of ‘administrative functions’ may be appropriate in a legislative scheme which does not otherwise compartmentalise the functions of a public sector agency (as I considered to be the case in relation to the way that expression applies to the Police Service in the setting of the amendment of personal record provisions in the Freedom of Information Act 1989: see N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (subject to appeal)). However in s 27 the Parliament has taken a compartmentalised approach to the functions of the law enforcement agencies mentioned. The division, as I see it, is as between their core responsibilities and those responsibilities which are not part of their core responsibilities. In particular the meaning of the word ‘administrative’ is to be read down so as not to embrace those core responsibilities. Similarly ‘educative’ responsibilities, which might on one view simply be a component of ‘administrative’ activity are to seen as separate from administrative responsibilities and again not forming part of the core responsibilities.

28.   In my view the activities of a police officer in supporting a prosecution, at least where he or she is asked to exercise independent discretion and judgment in performing a task, are activities that form part of the core responsibilities of the Police Service. The fundamental responsibility of the Police Service is the investigation of crime. While the Police Service’s responsibility for investigation is usually at an end by the time a case has gone to the District Court for trial, there may be a continuing need for some activity of that kind. In this instance the prosecution team called for a further narrow work of an investigative kind to be done. The means to be used was a subpoena for documents. This in my opinion was work of a investigative nature (though not connected with the crime itself) and related to the Police Service’s core responsibilities.

29. It was not ‘administrative’ in the sense in which I consider this term is used in this Act. In order for the primary provision, s 27(1), to be given effect, the term can not be used to refer to the entirety of the administrative activity of the Police Service, which includes the investigation of crime. Read in context, I am satisfied that it is intended to have a narrower compass going to those aspects of the operation of the agency that, as I see it, do not directly involve the carrying out of the core responsibilities. As I see it, ‘administrative’ when used in contradistinction to s 27(1) and alongside the term ‘educative’ seeks to refer to those activities of the Police Service that have to do with providing administrative support for the conduct of its core responsibilities.

30. So, for example, corporate services areas performing functions such as personnel, budget and information technology involve the performance of ‘administrative’ functions. There may be areas of the Police Service where the characterisation of the activity in terms of core/administrative/educative may vary depending on context that has given rise to the conduct in issue. (The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime, while in other instances they are done administratively, for example for background checks on prospective employees. The exception in s 27(2) may also cover licensing responsibilities vested in the Commissioner, such as for firearms licensing and security industry licensing. It is not necessary to pursue these questions any further here.)

26. In Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 the Appeal Panel disapproved reliance in the decision under appeal on a “core” and “non-core” distinction. The Appeal Panel said:

17   In our view, the Tribunal erred in depicting the question of whether a ‘core’/‘non-core’ distinction provides the basis for analysis. We agree with the Police submission that the Tribunal in para [26] mischaracterised the question. The President was using, as we see it, ‘core’ as an aid to understanding the generality of the policing functions of the Police Force. The term was not being used to prescribe a legal test.

…

20 In our opinion, section 27(1) gives a blanket exclusion from the application of the Act to the named agencies in respect of all of their activities, subject only to the qualification set out in s 27(2). Therefore the starting point is that all functions of the Police Force have the benefit of the s 27(1) exclusion. It is not necessary to refer to the Police Act list of functions. The question is simply whether the activity is brought back under the regulation of the Act because it belongs to the ‘administrative’ or ‘educative’ services of the Police Force. In our view, the way ‘administrative services’ is depicted in para [30] of the President’s reasons in HW, especially sentence one, captures the meaning intended for this term in sub-section (2).

27. In AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 the Appeal Panel gave further consideration to the meaning of the term “administrative” as used in s 27(2):

23.   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.

24. 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.

25 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.

28. In these proceedings the issue is whether LSCON Parker’s notification to the school Principal of the incident involving EFR was “in connection with the exercise of …administrative” functions of the NSW Police Force. If it could not be so characterised, the NSW Police Force was not required to comply with the IPPs in respect of that conduct.

29. As YK holds, the language of “core” and “non core” is not the basis for analysis, and the word “core” was used in HW as an aid to understanding the generality of the policing functions of the NSW Police Force. As noted in HW at [29], the term “administrative” cannot refer to the entirety of the administrative activity of the NSW Police, which would include investigation of crime, and it is intended to have a narrower compass. As discussed in HW at [30], in determining what that is, the context that has given rise to the conduct in issue is relevant.

30. Section 27(1) of the PPIP Act excludes all of the functions of the NSW Police Force from compliance with the IPPs. The question then is under s 27(2) whether the particular activity or conduct the subject of the complaint is, to use the language of YK at [20], “brought back under the regulation of the Act because it belongs to the ‘administrative’ or ‘educative’ services of the Police Force”.

31. In CTU v NSW Police Force [2017] NSWCATAD 204 at [18], the Tribunal held that the word “administrative” in s 27(2) is to be given its ordinary meaning, or commonly understood meaning, unless the context indicates some other meaning is intended. That meaning, according to the Macquarie Dictionary, is “relating to administration; executive; administrative ability; administrative functions”. Administrative functions would include, as held in HW at [30], “corporate services areas performing functions such as personnel, budget and information technology”. As discussed in AEC, however, the term “administrative” is not limited to functions relating to corporate services.

32. In AEC the NSW Police had disclosed information about a spent conviction for AEC to his ex-partner in the course of Local Court proceedings in which AEC’s ex-partner sought an Apprehended Violence Order and AEC was charged with assault. The Tribunal at first instance (AEC v NSW Police Force [2013] NSWADT 32) had found that dealing with AEC’s criminal records in that matter could not be characterised as administrative, referring to the distinction drawn in HW in the context of handling of criminal records to disclosures which occur in the course of the investigation of crime, and those which are done administratively, for example for background checks on prospective employees. That conclusion was not disturbed on appeal: AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 at [29].

33. In CTU the applicant had been convicted and sentenced to imprisonment, suspended on his entering into a bond, in 2005. In 2015 the applicant was issued with a National Criminal History Check and a National Police Certificate, each showing the conviction. It was not in dispute that NSW Police provided information about the applicant’s conviction to third parties for the purposes of the National Criminal History Check and National Police Certificate. The issue was whether the provision of a criminal record check to members of the public was in connection with the administrative functions of NSW Police. The Tribunal rejected a submission that information sharing is a public function which is not administrative, holding at [19] that provision of criminal history information to a third party for the purposes of a National Criminal History Check or National Police Certificate, where done as part of a routine application, is an administrative function according to the ordinary meaning of the terms. The processing of an application for a National Police Check, online and on payment of a fee, is an administrative function, as is the processing of an application for a criminal records check.

34. The Tribunal distinguished AEC, stating (at [22]):

22.   The facts of AEC are clearly distinguishable from those of the present case. AEC involved a situation where the Police disclosed information about a person’s criminal history in the course of proceedings for an apprehended violence order (or perhaps for the purposes of the assault proceedings). The disclosure was not done as part of any routine processing of a criminal history application or similar; rather it was in the context of court proceedings involving an alleged crime. The provision of criminal history information in a routine way when an individual completes a form is of a more administrative nature. Consistently with what was said in AEC, the context in this case requires a different result.

35. That reasoning was followed in DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193, in which NSW Police had responded to a request for information by the Commissioner for Victims Rights in considering DKB’s application for compensation under the Victims Rights and Support Act 2013. The Tribunal at first instance held that at the time a police officer wrote a COPS Event report, an active investigation into the alleged offence was ongoing; and at the time that officer wrote the email responding to the Commissioner of Victims Rights, advising that the investigation was due to be suspended due to lack of evidence, it was still ongoing. The Tribunal concluded (at [27]) that the email was not a routine criminal records check, but an express and lawful inquiry made to the officer conducting an investigation who, when replying was acting in that role and not simply undertaking an administrative task. An appeal from that decision was dismissed: DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39.

36. The respondent submits that CTU can be distinguished from the present circumstances, as a first instance decision, and relating to a routine application for a criminal history check which is a backroom function, and prefers the narrower interpretation adopted in YK that administrative functions are limited to those which would be necessary in any agency or organisation such as management of personnel records. However, the subsequent Appeal Panel decisions in AEC and DKB have taken a broader approach to the question. Neither of those decisions supports the proposition that any provision of information about the detail of a person’s criminal history is an administrative function, however, depending on context it may be. That is illustrated in the distinction drawn at [30] in HW between disclosures of criminal records in the course of the investigation of crime, from instances where that is done administratively such as background checks on prospective employees.

37. In the present circumstances, LSCON Parker informed the school about the incident on 21 June 2019, which was after she had informed EFR’s father that EFR would likely be dealt with under the Young Offenders Act and after she had arranged an appointment to go through the process which would if there were an admission of guilt result in a caution; and before that appointment on 29 June 2019 at which EFR provided a Juvenile Hand-Written Statement admitting to the offence. The notice of caution, and caution were later issued.

35. The Tribunal agrees with the applicant that at the time LSCON Parker informed the school there were no active investigation issues that might require some assistance from the school, such as assistance with investigation. However, the process under the Young Offenders Act which ultimately resulted in the issue of a caution on 9 July 2019 was still on foot. This was not a routine provision of information in response to an application and payment of a fee, as was the case in CTU; rather, it was analogous to the actions referred to at para [28] in HW, or in AEC. Whether or not the notification to the school was appropriate or warranted in all the circumstances, it was not done “in connection with the exercise of…administrative ..functions” of the NSW Police Force so as to fall within s 27(2) of the PPIP Act. That means that applying s 27(1) of the PPIP Act, the NSW Police Force was not required to comply with the relevant IPPs.

36. The Statement of Agreed Facts states at 1.7 that the phone call to the Acting Principal was purportedly pursuant to the MOU. There were two versions of that document provided to the Tribunal, one provided with the application for review which ECI states she obtained from the respondent, and from which the extract in the respondent’s submissions quoted above is drawn; and the other annexed to the Statement of Agreed Facts, which the respondent in submissions states is the current authorised version. While the documents are not identical, they are not materially different. Neither in terms is framed in terms of any obligation of disclosure. The circumstances identified in the MOU in which it is appropriate for NSW Police to provide information relate to the need to maintain safe and secure school environments, and to assist schools to provide services for the safety, welfare and wellbeing of children and young people or manage health and safety risks in schools. The MOU states that information should be provided “according to the collection principles in the relevant privacy legislation”. Whether or not the disclosure was consistent with the MOU, the MOU would not authorise or require disclosure in circumstances where it is s 27(1) of the PPIP Act that exempts the NSW from compliance with the IPPs.

37. The Tribunal agrees with the respondent that s 22 of the PPIP Act does not operate so as to make the exemption in s 27(1) inapplicable. Section 65 of the Young Offenders Act prohibits the publication or broadcasting of the name of any child dealt with under the Young Offenders Act, neither of which occurred. Section 66 prohibits the divulging of information acquired in the exercise of functions under the Young Offenders Act, except in the exercise of functions under that Act. The respondent relies on s 66(2)(a) of the Young Offenders Act, which would permit disclosure of information being “records of, or relating to, cautions and conferences” under that Act to “a person responsible” for EFR. That term is defined in s 4 to include “a person who has the care of the child (whether or not the person has the custody of the child)”. Whether or not s 66(2)(a) applied, if the notification to the school were a breach of either s 65 or s 66 of the Young Offenders Act, s 22 of the PPIP Act would mean that nothing in Div 3 of Part 2, including s 27, would override those provisions and authorise the conduct prohibited by that legislation. Section 27 does not “authorise” a public sector agency to do anything it would otherwise be prohibited from doing, rather it operates so that any such conduct would not be in breach of an IPP.

38. The Tribunal is satisfied that the notification to the school on 21 June 2019, while purportedly in reliance on the MOU, fell within the exemption for NSW Police provided by s 27(1) of the PPIP Act. It was not “in connection with the exercise of…administrative ..functions” of the NSW Police Force so as to fall within s 27(2) of the PPIP Act. The NSW Police Force was not required to comply with the IPPs set out in Div 1 of Part 2, including those in ss 17 and 18 of the PPIP Act relating to use and disclosure of personal information. That conclusion means that the notification to the school could not be a contravention of the PPIP Act.

39. Section 55(2) of the PPIP Act sets out the orders the Tribunal can make on reviewing conduct of an agency that is alleged to amount to a contravention of an IPP. This includes deciding to take no further action. In circumstances where the respondent agency was not required to comply with the IPPs, the appropriate order is to decide to take no further action.

Order

43. The order of the Tribunal is:

1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant or her agent is prohibited.

2. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 June 2020