GA v Commissioner of Police, NSW Police

[2005] NSWADT 121

CITATION:	GA v Commissioner of Police, NSW Police [2005] NSWADT 121
DIVISION:	General Division
PARTIES:	APPLICANT GA RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	043396
HEARING DATES:	25/01/2005, 31/05/2005
SUBMISSIONS CLOSED:	05/31/2005
DATE OF DECISION:	06/07/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Privacy - information protection principle - accuracy - Privacy - information protection principle - collection - from third party - Privacy - information protection principle - collection - unlawful
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Police Act 1990 Privacy & Personal Information Protection Act 1998
CASES CITED:	Commissioner of Police New South Wales v N [2003] 58 NSWLR 458 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2 HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 I W and the City of Perth (1997) 191 CLR 1 Lennon v Gibson and Howes Ltd [1919] AC 709 Mills v Meeking (1990) 91 ALR 16 N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 United Society v Eagle Bank (1829) 7 Conn 475
REPRESENTATION:	APPLICANT In person RESPONDENT P Mclaughlin, solicitor (25/1/2005) C Ludlow, solicitor (31/5/05)
ORDERS:	Decision affirmed

Introduction

1 GA is aggrieved because he considers that NSW Police has, among other things, collected, used and disclosed personal information about him on their computerised Operational Policing System (COPS) database that is inaccurate and misleading. The four COPS records in issue relate to incidents of alleged domestic violence and abuse. (E20593335, E20623759, E20873461, E149648391.) GA was the informant in relation to three of the incidents and GA’s wife was the informant in relation to the fourth incident. There were Apprehended Violence Order in place and GA was charged with malicious damage to property. GA says that much of the information recorded in the COPS database is false and that the prosecution of him is malicious.

2 The Commissioner of Police reviewed the conduct about which GA complained under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). They concluded that, by virtue of s 27, NSW Police is exempt from compliance with the Information Protection Principles (IPPs) in the PPIP Act except in connection with the exercise of their administrative and educative functions. The Commissioner said that as the functions of recording information in the COPS data base relates to the core functions of NSW Police, namely preventing and detecting crime and protecting persons from injury, death and property damage, they are not connected with the exercise of their administrative functions. GA submitted that while the initial recording of information at the time is a law enforcement function, the recording and use of information in the COPS database was an administrative function.

Issue

3 The issue is whether the IPPs in the Act apply to the Commissioner of Police in the circumstances of this case. In order to determine that issue, the Tribunal must decide the meaning of the words “administrative . . . functions” in s 27 of the Act. GA submitted that if the conduct complained of does fall within the definition of “administrative . . . functions” the exclusion in s 27 only applies to “lawful” administrative functions.

Meaning of “administrative . . . functions”

4 Interpretation of term under the PPIP Act. Section 27 of the PPIP Act provides a specific exemption for NSW Police and other related agencies, from the IPPs except “in connection with the exercise of their administrative and educative functions”. That sections states that:

(1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Police Service, 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 Police Service, 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. (Emphasis added.)

5 NSW Police tendered evidence from Senior Constable Gordon Stacey in relation to the COPS system. His evidence related to the sources from which information in the COPS system is collected and its use as “intelligence” relevant to the investigation of alleged criminal activity and the prevention of those activities in the future. Senior Constable Stacey also gave evidence that NSW Police uses a separate computer system for its administrative functions such as human resources, finance and education. Senior Constable Stacey conceded that the COPS system, while primarily an operational policing system, does have some administrative functions. These include the monitoring and allocation of job or role specific profiles and auditing. According to Senior Constable Stacey, those systems ensure that the system as a whole operates correctly.

6 In relation to the COPS Events which are the subject of these proceedings, Senior Constable Stacey gave evidence that the information in these documents is used to further the functions of NSW Police as set out in s 6 of the Police Act 1990, namely the protection of persons from injury or death and the detection and prevention of crime.

7 Senior Constable Gregory Urch is the Domestic Violence Liaison Officer at Burwood Local Area Command. He reviewed the COPS Events that are the subject of these proceedings and identified that the documents had been produced as a result of a phone call to 000, a phone call to Macquarie Fields Police and an attendance by GA’s wife at Macquarie Fields Police Station. In each case domestic violence offences were alleged to have been committed. According to Senior Constable Urch, NSW Police has a responsibility to maintain a record of the history of incidents relating to alleged perpetrators and victims of domestic violence.

Meaning of “administrative . . . functions”

8 The Commissioner relied on the Tribunal’s decision in HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214. In that case the Commissioner of Police had mistakenly served an invalid summons. Relying on the summons, various agencies had produced documents relating to the applicant giving rise to the unlawful collection of personal information. The Tribunal said at [25]-[27] and [29] that:

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 be seen as separate from administrative responsibilities and again not forming part of the core responsibilities.

. . .

29 . . . 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.

9 Interpretation of term under FOI Act. This interpretation of the words “administrative . . .functions” can be contrasted with the meaning that the Supreme Court has given to those words in the context of the Freedom of Information Act 1989. Section 39 of the FOI Act gives a person the right to apply for the amendment of an agency’s records if, among other things, the information is available for use by the agency in connection with its administrative functions.” Since the Tribunal’s decision in HW v Commissioner of Police, the Supreme Court has handed down a decision in Commissioner of Police New South Wales v N [2003] 58 NSWLR 458. The Supreme Court was deciding whether the Tribunal’s decision in N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (8 March 2002), relating to the interpretation of the words “administrative functions” in s 39 of the Freedom of Information Act 1989 was infected by legal error. Cripps J at [17], decided that, as a matter of statutory construction, the Tribunal was correct in determining that the words “administrative functions” in s 39 were not intended to be a description of one set of functions among many but rather that they were used in a generic sense. Cripps J went on to say at [17] that:

As we have seen, O’Connor J interpreted the term “administrative functions” differently in the context of s 27 of the PPIP Act. His Honour took the view that administrative functions were separate from core functions. His Honour said that the word ‘administrative’ in s 27 should be read down so as not to include those core responsibilities. GA submitted that the facts in HW were significantly different from the facts in this case and that it was distinguishable on that basis. I do not agree. While the facts were different, the general principle which O’Connor J was discussing in that decision are precisely the same principles that are relevant in this case.

10 Robinson JM discussed the scope of "administrative functions" in s 27(2) of the PPIP Act in GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2. Although it was not necessary to decide the question, he observed at [32]:

". . . that the question involves construction of a very different legislative setting to that of the Freedom of Information Act 1989. In Commissioner of Police NSW v "N" [2003] NSWSC 943, Justice Cripps considered the expression an agency’s "administrative functions" was very wide for the purposes of the FOI Act. It was found that it included police operational matters. However, I doubt the reasoning there would apply in the present case or in the context of the Privacy Act"

11 GA submitted that the definition of “administrative . . . functions” must be the same whether the Tribunal is considering the FOI Act or the PPIP Act. He added that even if the collection of the information from GA’s wife and others was not part of NSW Police’s administrative functions, the recording of that information in the COPS data base was an administrative function.

Are the FOI Act and the PPIP Act “in pari materia”?

12 GA’s submission is consistent with the principle that when ascertaining the meaning of a statutory provision, reference may be made to similar statutes in the same jurisdiction. This principle is known as the “in pari materia” principle which literally means ‘in an analogous case’. As the Privy Council said in Lennon v Gibson and Howes Ltd [1919] AC 709 at 711-712, “In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.” While there is very little Australian authority indicating which statutes are to be regarded as in pari materia, reference is sometimes made to the American case of United Society v Eagle Bank (1829) 7 Conn 475, where Hosmer J said , at 470 that “Statutes are in pari materia which relate to the same person or thing or to the same class of persons or thing”. However Hosmer J qualified this statement by saying that similarity of subject matter was not sufficient. (See discussion of this issue in Pearce D C & Geddes RS, Statutory Interpretation in Australia, 5th edition, Butterworths, 2001 at p 77.)

13 Under s 39 of the FOI Act, NSW Police must amend a document if that document contains information concerning the person’s personal affairs, and the agency finds that the information is incomplete, incorrect, out of date or misleading. However, that obligation only arises if the information is available for use by NSW Police in connection with its administrative functions. Similarly, under s 15 of the PPIP Act, if NSW Police holds personal information it must, at the request of the individual to whom the information relates, make appropriate amendments to ensure that the person’s personal information is accurate. However NSW Police only has to comply with s 15 (and the other Information Protection Principles) in connection with the exercise of their administrative and educative functions. The similarity of the subject matter and context of these provisions suggests that the words “administrative functions” in s 27 of the PPIP Act and s 39 of the FOI Act should be given the same meaning. If that is correct, the principles of precedent dictate that the meaning given to the term by the Supreme Court in relation to s 39 of the FOI should be adopted in relation to s 27 of the PPIP Act.

Purposive approach

14 Despite the logic of interpreting words in the same way when they appear in similar statutes within the same jurisdiction, this principle is not determinative. The overarching principle of statutory construction is set out in s 33 of the Interpretation Act 1987 which provides that:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

15 This provision requires the Tribunal to take into account the purpose of the legislation even if the meaning of the provision is clear. The Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction which is consistent with the purpose of the legislation should be preferred. (Mills v Meeking (1990) 91 ALR 16 at 30-31.) In this case the words “administrative function” could either be interpreted narrowly to refer to non-core functions or broadly to refer to all those functions performed by NSW Police which relate to the management and execution of its responsibilities as derived from common law, statute or government arrangement.

16 One of the purposes of the PPIP Act, as evidenced by its long title, is to “provide for the protection of personal information, and for the protection of the privacy of individuals generally”. That protection is not absolute. The PPIP Act places limits on the protection of personal information so that potentially competing objectives in other legislation, such as the Police Act 1990, are not usurped. The PPIP Act gives several agencies including NSW Police a blanket exemption from compliance with all the Information Protection Principles. That exemption is qualified only in relation to administrative and educative functions. The PPIP Act is beneficial legislation and, in the words of , Brennan CJ and McHugh J in I W and the City of Perth (1997) 191 CLR 1 at 12:

...It is to be given "a fair, large and liberal' interpretation rather than one which is 'literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural...

17 In my view, considered in context, it would be unreasonable and unnatural to interpret the term “administrative functions” as covering the process of recording and using information relevant to the detection and prevention of crime in the COPS data base. In addition, the consequences of a such an interpretation must be taken into account. If those consequences are, for example, extraordinary, capricious or irrational then it can be assumed that the legislature did not intend that meaning. (Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169-170 per Mason and Wilson JJ.) If “administrative functions” were interpreted broadly so that it applied to all information recorded in the COPS data base, NSW Police would be required to apply all the Information Protection Principles to that information. That would, in general, require police officers to collect the information directly from the person concerned (s 9). Police routinely collect information other than from the person concerned. Compliance with s 9 would effectively prevent police officers from gathering intelligence about suspected criminal activity from anyone other than the person concerned. That situation would be totally irrational and absurd. Similarly, the requirement under s 10 to inform the person that the information had been collected and the purpose for which it had been collected would communicate to that person the nature of the intelligence the police had and perhaps the fact that they were suspected of committing a criminal offence. Nothing could be more patently absurd. While it is obviously important to protect people’s privacy and ensure that information is as accurate as possible, in the context of gathering, recording and using information in relation to the prevention and detection of crime, police officers would not be able to effectively perform their law enforcement functions if they were constrained by the information protection principles in the PPIP Act.

18 I accept that the information recorded in the COPS system is used not only for the direct purpose of preventing and prosecuting crimes but also indirectly for that purpose, namely to ensure that police officers are following the appropriate procedures and are fully investigating matters. Supervisors assess the information in the COPS data base in a process known as “Quality Review”. GA has not complained about any conduct involved in the Quality Review process or indeed in any other of the processes that are necessary in order to ensure that the operational system works effectively. Despite the evidence from Senior Constable Stacey that the COPS system has administrative aspects, I am not satisfied that those functions are necessarily administrative functions within the meaning of that term in s 27. They are indirectly associated with the core activity of the prevention and detection of crime. Even if some aspects of the COPS system involve administrative functions, that does not mean that the aspect of recording and using information for the purpose of preventing and detecting criminal activity is part of NSW Police’s administrative or educative functions.

Does s 27 only apply to lawful activities?

19 GA’s alternative submission was that the restriction on the application of the IPPs in s 27 can only relate to lawful investigations and prosecutions. According to GA the investigation and prosecution in relation to him was not lawful because the information in the COPS data base is false and the prosecution of him was malicious. NSW Police submitted that an activity does not lose its character as a law enforcement activity even if the information is incorrect.

20 Section 27(1) gives a blanket exemption to NSW Police from the application of the Information Protection Principles. That exemption is not qualified in any way in relation to the lawfulness or otherwise of the activity concerned.

Order

21 Decision affirmed.