Jarrod Alexander McLean v Racing Victoria Limited(ACN 096 917 930) and State of Victoria
[2020] VSCA 234
•10 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2019 0121
| JARROD ALEXANDER McLEAN | Applicant |
| v | |
| RACING VICTORIA LIMITED (ACN 096 917 930) | First Respondent |
| and | |
| STATE OF VICTORIA | Second Respondent |
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| JUDGES: | TATE, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 July 2020 |
| DATE OF JUDGMENT: | 10 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 234 |
| JUDGMENT APPEALED FROM: | [2019] VSC 690 (Richards J) |
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SEARCH AND SEIZURE – Restrictions on use of information obtained by police via search warrants – Whether and in what circumstances information can be provided to third party regulator – Whether Crimes Act 1958 s 465 contains implied duty of confidentiality with respect to information derived from things seized – Smethurst v Commissioner of Police (2020) 94 ALJR 502, [2020] HCA 14 considered – Johnsv Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 considered – Australian Securities and Investments Commission vRich (2005) 188 FLR 416; [2005] NSWSC 62 considered – Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301 considered – Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 considered – Flori v Commissioner of Police [2015] 2 Qd R 497; [2014] QSC 284 considered – Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 considered – Director of Public Prosecutions v Zierk (2008) 184 A Crim R 582; [2008] VSC 184 considered.
POLICE – Common law powers and duties of police in relation to confidential information obtained during criminal investigations.
PRIVACY – Whether disclosure to third party regulator was permitted under Privacy and Data Protection Act 2014 Information Privacy Principle 2.1(e), (f) or (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A T Broadfoot QC with Mr P J Wheelahan | Tony Hannebery Lawyers |
| For the First Respondent | Mr J J Gleeson QC with Mr A M Dinelli | Minter Ellison |
| For the Second Respondent | Mr O P Holdenson QC with Ms E A Bennett | Mr M Hocking, Acting Victorian Government Solicitor |
TATE JA
McLEISH JA
NIALL JA:
Introduction
The applicant is a licensed trainer of thoroughbred race horses. As part of a police investigation into suspected criminal offences related to racing, officers of Victoria Police executed a search warrant issued under s 465 of the Crimes Act 1958 at the applicant’s premises in early 2019, and seized six used syringes. Analysis showed that they contained traces of equine blood and recombinant human erythropoietin (‘EPO’), a pharmaceutical substance banned in racing. Victoria Police determined not to pursue criminal charges.
However, by letter they informed the first respondent, Racing Victoria Limited (‘Racing Victoria’), that they had executed the search and found the syringes, and they provided documents recording the results of analysis. Police did not provide the seized items. Based on the information provided by police, Racing Victoria proposes to conduct a civil disciplinary hearing against the applicant under the Rules of Racing.
The fundamental issues on appeal are whether, as the applicant contends, s 465 of the Crimes Act imposes an implied duty of confidentiality on information derived from things seized on the execution of a search warrant, which was breached by Victoria Police; whether the disclosure was permitted under the Privacy and Data Protection Act2014 (the ‘Privacy Act’); and, assuming the disclosure was unlawful, what relief (if any) should follow.
For the reasons that follow, s 465 does not contain the implied duty of confidentiality contended for. We consider that the primary judge was correct to find that there was no such implied duty.[1] Put another way, we reject the applicant’s central submission that information obtained as a result of the execution of a search warrant under s 465 can only be used in the investigation and prosecution of a crime. We also consider that the judge was correct to conclude that the disclosure was authorised under the Privacy Act and the applicant has no entitlement to relief.
[1]McLean v Racing Victoria Ltd [2019] VSC 690, [44] (‘Reasons’).
The facts
On 24 January 2019, on the application of Detective Acting Senior Sergeant Bailey of Victoria Police, a magistrate issued a search warrant pursuant to s 465 of the Crimes Act, authorising police officers to enter the home of the applicant and search for and seize certain items.
The warrant was in the prescribed form. It identified a series of ‘things’, including ‘[e]lectric apparatus designed to deliver an electric shock (‘jigger’), [f]luorescent yellow horse blinkers, [b]lack plastic pipe’ and ‘computer and data storage devices including mobile telephones bearing [identified IMEI numbers]’. In the part of the warrant that required a description of the reasons for search or a description of a suspected offence, the warrant referred to three indictable offences under the Crimes Act, being s 82, (obtaining financial advantage by deception); s 195C (engaging in conduct that corrupts or would corrupt a betting outcome of an event or event contingency) and s 195F (use of corrupt conduct information for betting purposes).
The warrant authorised the applicant for the warrant, and all police officers, to break, enter and search the building identified in the warrant and to bring the identified things before the Magistrates’ Court so that they may be dealt with according to law.
On 30 January 2019, members of Victoria Police executed the warrant and seized four items, including six pre-set syringes labelled ‘Eprex 10,000’. The syringes did not fall within the items identified in the warrant. In an affidavit, Detective Superintendent White of the Sporting Integrity Intelligence Unit of Victoria Police (‘SIIU’), gave the following explanation for their seizure:
Although the syringes were not listed on the search warrant, they were seized because:
(i)One of the police officers involved in executing the search warrant searched the internet after the syringes were located and found information suggesting that ‘Eprex’ is a trade name for Erythropoietin (EPO).
(ii)EPO is a ‘Schedule 4’ poison within the meaning of the Drugs, Poisons and Controlled Substances Act1981 (Vic) which cannot be possessed without a prescription.
(iii)EPO is a banned substance under the Rules of Racing of Racing Victoria (Rules of Racing).
We interpolate to note that it was accepted below, and expressly reiterated on the present application, that the seizure of the syringes was authorised by or under the warrant. No challenge is made to the lawfulness of the seizure or to the continued retention of the syringes.
The syringes were placed in a tamperproof evidence bag.
On 1 February 2019, the warrant was returned to the Magistrates’ Court and the syringes (and other seized items) were produced to the magistrate. A ‘result of search’ form, signed by the magistrate, records that both a digital image of the seized items and the seized items themselves were brought before the magistrate to be dealt with according to law.
Included on the ‘result of search form’ were written directions given by the magistrate in relation to the seized items. She directed that all of the seized items were to be retained in possession of police pending production at the Court if required. A further direction was given in the following terms: ‘[the syringes] may be conveyed to a unit within Victoria Police that has forensic capability for analysis. I understand that these items may be altered from the original state as a result of analysis/testing’.
As at 12 February 2019, the Victoria Police Forensic Science Centre did not have the capability to test the syringes and recommended that the syringes be tested by Racing Analytical Services Ltd (‘RASL’).[2] On 14 February 2019, Victoria Police provided the syringes to RASL. On 27 February 2019, Mr Zahra of RASL informed a member of the police that one of the syringes contained equine blood.[3]
[2]It is not clear that this was the subject of a further authorisation from the magistrate but no point is taken that the delivery into the custody of RASL was outside the magistrate’s direction.
[3]Only two of the six syringes were tested.
In April 2019, further analysis was undertaken by the Racing Australia Ltd (‘RAL’) laboratory in New South Wales, which established that one of the syringes contained DNA belonging to a 2002 bay gelding called ‘Cats Fun’. The applicant trained Cats Fun, which apparently last raced in October 2014.
On 14 June 2019, RASL provided a certificate to Victoria Police confirming that two syringes contained EPO, which was consistent with the labelling of the syringes.
On 20 August 2019, an Acting Commander of Victoria Police approved the release of information regarding execution of the warrant and analysis of the syringes to the Office of Racing Integrity Commissioner (‘ORIC’) and Racing Victoria. As recited by Detective Superintendent White, the reasons for the provision of the information were as follows:
(a)The SIIU’s purpose is to proactively focus on monitoring integrity issues across all sporting and racing codes.
(b)Possession of EPO without a prescription is a summary offence and the SIIU did not have any evidence that the use of EPO had resulted in the corruption of horse racing.
(c)However, possession of EPO is a serious racing offence because EPO is a banned substance under the Rules of Racing.
(d)The evidence obtained from [RAL] indicated that EPO seized from the [applicant’s] private residence had been given [to] a race horse trained by him.
(e)EPO is a prescription only medicine designed for humans and its effect on horses was not known by Victoria Police.
(f)Victoria Police were concerned about the welfare of the horse involved, and the welfare of horses in the racing industry more generally.
(g)Victoria Police considered that Racing Victoria had the requisite knowledge and expertise to understand the effect of EPO on horses and jurisdiction under the Rules of Racing to inquire into the possible use of EPO on race horses by the [applicant].
(h)ORIC has a statutory function to disclose integrity related information in racing, as set out in section 37E(1) of the Racing Act 1958.
On 20 August 2019, Detective Acting Inspector Kroenert sent a letter to Racing Victoria’s Executive General Manager – Integrity.
The letter commenced by noting that Victoria Police was referring the attached information ‘as offences may have been committed against the Rules of Racing’ involving the applicant.
The letter advised that a warrant had been executed at the applicant’s property and that syringes were seized in a drawer of a bedside cupboard in the main bedroom of the house. The author of the letter said that the syringes had been examined by RASL and Victoria Police were informed that one syringe contained equine blood and two syringes contained EPO. The other four syringes were not tested. Further investigation was conducted by RAL and the DNA was found to belong to Cats Fun.
Attached to the letter were:
(a) a redacted statement of a police officer outlining the search and seizure;
(b) a photograph of the seized syringes;
(c) a copy of the search warrant;
(d) continuity statements from two police officers in relation to the seizure and transportation of the syringes for testing;
(e) an RASL investigative testing certificate dated 14 June 2019 revealing the presence of EPO in two syringes;
(f) an RAL DNA investigation report;
(g) a video showing the expiry and batch number of the syringes; and
(h) information about EPREX epoetin alfa 10000IU/1.0ml injection syringe sourced from the Therapeutic Goods Administration website.
The letter to Racing Victoria made reference to the Information Privacy Principles (‘IPP’) under the Privacy Act and concluded:
The attached information is provided to Racing Victoria Stewards for assessment. Information provided is Law Enforcement Data and is disclosed under Information Privacy Principle (IPP) 2.1(e) under the [Privacy Act] in relation to any unlawful activity relating to breaches of the Rules of Racing. Victoria Police are not progressing criminal charges in relation to this information provided.
Following receipt of this information, Racing Victoria notified the applicant that the Stewards had opened an inquiry and directed him to attend a hearing on 28 August 2019. The hearing commenced, but was adjourned at the applicant’s request, and is yet to be completed.
The Stewards formed the view, on the basis of the available evidence, that there were reasonable grounds to suspect that the applicant had committed breaches of AR 244(1 ), AR 250(a) and AR 232(h) of the Rules of Racing. On 2 September 2019, the Stewards notified the applicant of their intention to lay charges for breach of those rules, and asked him to show cause why he ought not be suspended pending the hearing and determination of those charges. Later that day, the applicant commenced a proceeding, seeking orders restraining Racing Victoria from acting on the information received from Victoria Police.
A materially identical letter was sent to ORIC. No separate relief is sought in relation to that correspondence and it is unnecessary to make further reference to that disclosure.
The proceeding
The applicant’s proceeding in the Trial Division sought injunctive and declaratory relief against the respondents. He sought to restrain Racing Victoria from charging him with any breaches of the Rules of Racing relying on the information obtained by way of the search warrant and relying on any of the information conveyed to it by Victoria Police in the letter dated 20 August 2019. The applicant also sought a declaration that Racing Victoria is not entitled to use, rely on, or otherwise take into account, the information contained in that letter, and an order that Racing Victoria destroy any copies of the information contained in it.
As against the second respondent, the applicant sought an injunction restraining Victoria Police from providing to Racing Victoria any information about things seized on execution of the warrant or any information obtained as a consequence of investigations undertaken about things seized on 30 January 2019. He also sought a declaration that the disclosure of the matters set out in the letter of 20 August 2019 by Victoria Police to Racing Victoria was unlawful.
In his statement of claim, the applicant alleged that Victoria Police and its officers owed duties:
(i) not to disclose any information about what was obtained on execution of the warrant to any third parties, except in the course of undertaking the criminal investigation for which the warrant was granted;
(j) to treat as confidential any information obtained as a consequence of executing the warrant and as a consequence of investigating information or things seized on execution of the warrant.
By way of particulars to the allegation of duty, the applicant pleaded that the duty is implied from the nature of the powers conferred in the Crimes Act and by reason of the principles identified by Brennan J in Johns v Australian Securities Commission.[4] Although Victoria Police, in disclosing the information to Racing Victoria, expressly relied upon IPP 2.1(e) as authorising the disclosure,[5] the applicant did not rely on the Privacy Act nor allege that the disclosure was unlawful as in breach of that Act.
[4](1993) 178 CLR 408, 424; [1993] HCA 56 (‘Johns’). The original statement of claim also relied on s 272 of the Police Act. That section only applies to things seized under the Police Act. It had no relevant application and the claim was abandoned.
[5]See [21] above.
We note that the second respondent is the State of Victoria. In his statement of claim, the applicant pleads that the State is liable for ‘police torts’ pursuant to s 74 of the VictoriaPolice Act 2013 (the ‘Police Act’). As presently formulated, the amended statement of claim does not include a claim in tort and nor does it seek damages. Insofar as injunctive and declaratory relief is sought against Victoria Police, which itself is not a legal entity, it must be doubted that the State is the proper party — all the more so where the second respondent relies on the common law duties that attach to police officers and which do not give rise to vicarious liability on the part of the State other than through the limited lens of s 74 of the Police Act.[6] The Chief Commissioner of Police, who has command over the members of Victoria Police, would likely be the proper defendant for relief of the kind sought. However, no issue has been taken on the point and the Court has not had the benefit of submissions in this regard. The State has advanced submissions on behalf of Victoria Police. For convenience, the submissions of the second respondent will be referred to as those of Victoria Police.
[6]See Enever v The King (1906) 3 CLR 969; [1905] HCA 3.
The judge’s reasons
Before the judge, the applicant’s central contention was that information obtained as a consequence of the exercise of a coercive power can only be used for the purpose for which the power is conferred, but not otherwise. In the applicant’s submission, the only use that could lawfully be made of the information obtained as a result of the warrant was for the investigation and prosecution of indictable offences.[7]
[7]Reasons [12].
The judge analysed the decision of the High Court in Johns and a series of cases in which the issue of confidentiality, arising upon the execution of search warrants, has been considered.[8] After addressing those authorities, to which we shall return, the judge observed that there are limits on the use that may be made of things or documents obtained as a result of the exercise of a coercive statutory power and that in each case the permitted uses must be determined by reference to the text, context and purpose of the statutory provision that confers the power.[9]
[8]Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301; Australian Securities and Investments Commission vRich (2005) 188 FLR 416; [2005] NSWSC 62 (‘Rich’); Pratten v DPP (Cth) (2013) 277 FLR 277; [2013] NSWSC 594 (‘Pratten’); Flori v Commissioner of Police [2015] 2 Qd R 497; [2014] QSC 284 (‘Flori’).
[9]Reasons [25].
After setting out the relevant parts of s 465 of the Crimes Act and s 78 of the Magistrates’ Court Act1989, the judge contrasted s 465 with the legislation considered in Johns and in three cases concerning warrants issued under the Crimes Act 1914 (Cth).[10] Her Honour noted that s 465 does not make express provision for the use or disclosure of things seized under a search warrant. Rather, it requires that things seized be brought before the Magistrates’ Court ‘to be dealt with according to law’. The judge held that this required the police officer to take anything seized under the warrant to the Magistrates’ Court and that it is for the Magistrates’ Court, not the executing officer or Victoria Police generally, to determine what is to be done with the seized thing.[11]
[10]Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301; Rich (2005) 188 FLR 416; [2005] NSWSC 62; Pratten (2013) 277 FLR 277; [2013] NSWSC 594.
[11]Reasons [30].
The judge concluded:
… there is a limitation on the use that may be made by police of things seized under a search warrant issued under s 465 of the Crimes Act (Vic). Those things must be taken before the Magistrate, ‘to be dealt with according to law’. Police may then deal with the things as directed by the Magistrate, and not otherwise. It follows that there is a corresponding duty not to disclose seized things other than in accordance with a direction of the Magistrates’ Court.[12]
[12]Ibid [34].
The judge then turned to consider, and reject, the applicant’s submission that a duty of confidentially attached not only to things seized under the warrant but also to information about or derived from those things. Before the judge, the applicant submitted, based on George v Rockett,[13] that s 465 prioritises the effective administration of criminal justice over private rights of the individual to enjoy privacy and property and does not authorise disclosure by police for non-criminal purposes such as, in this case, to the racing industry regulator. The judge rejected that submission on the basis that it was devoid of supporting authority.[14] The judge noted that Johns was concerned with disclosure of transcripts and the federal warrant cases were about the use or disclosure of documents seized under a search warrant.[15]
[13](1990) 170 CLR 104; [1990] HCA 26.
[14]Reasons [41].
[15]Ibid [42].
The judge then referred to Flori,[16] which was concerned with data extracted by forensic analysis from computers seized pursuant to a search warrant. The computer had been seized under warrant and information extracted from it was intended to be used in internal police disciplinary hearings. Atkinson J held that material seized pursuant to a warrant, and any data, evidence or information derived from the seized property, could only be used for the purpose for which the warrant was granted, namely, to obtain evidence of the commission of an offence, and could not be used as evidence in disciplinary proceedings against a police officer.
[16][2015] 2 Qd R 497; [2014] QSC 284.
The judge distinguished Flori on the basis that it was concerned with the use of material within the Queensland Police Service and not disclosure to third parties. Further, there was no discussion about whether the implied limitation contended for extended to derived information.[17]
[17]Ibid [43].
For those reasons, the judge concluded that evidence of observations made during the execution of a search warrant or information derived from things seized is not subject to any limitation or duty of confidentiality implied from s 465.[18]
[18]Ibid [44].
The judge then turned to consider whether there were limitations, apart from s 465 itself, on the disclosure of information held by Victoria Police. In that respect, Victoria Police had contended that the common law permitted, and in some circumstances obliged, police to disclose information that is otherwise confidential. That submission was based on Marcel v Commissioner of Police of the Metropolis,[19] Woolgar v Chief Constable of Sussex Police[20] and Director of Public Prosecutions v Zierk.[21]
[19][1992] Ch 225, 255 (Dillon LJ) (‘Marcel’).
[20][2000] 1 WLR 25 (‘Woolgar’).
[21](2008) 184 A Crim R 582; [2008] VSC 184 (‘Zierk’).
The judge observed that, absent legislation, that line of authority might have provided a basis for concluding that confidential information can be disclosed to a relevant regulator in the public interest. However, she considered that in Victoria, the matter is governed by a detailed and nuanced statutory framework reflected in the Privacy Act.[22] Her Honour recognised that, although s 465 of the Crimes Act imposed no duty to prevent disclosure, the information obtained pursuant to s 465 was of a character, namely, personal information, that was restricted from disclosure in the hands of Victoria Police, as a public sector organisation to which the Privacy Act applied, subject to limited exceptions. She said:
No duty is to be implied from s 465 of the Crimes Act(Vic) in respect of information about or derived from things seized under a warrant. Victoria Police is not, however, free to use that information for any purpose at all, or to disclose it to the world at large. Both the common law and the [Privacy Act] limit the purposes for which the information can be used and disclosed. The information in question was ‘personal information’ for the purposes of the Privacy Act, and Victoria Police was obliged to handle the information in accordance with that Act.[23]
[22]Reasons [48].
[23]Ibid [10(c)].
The judge concluded that the disclosure was permitted under the Privacy Act because the information fell within IPP 2.1(e); she held that ‘[t]he disclosure was therefore lawful.’[24] IPP 2.1(e) provides that an organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:
the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities …
[24]Ibid [69].
The judge held that here, the purpose of collection was a criminal investigation being undertaken by Victoria Police.[25] She construed the term ‘unlawful activity’, which is not defined in the Privacy Act, as reflecting the ordinary meaning of the word ‘unlawful’, and extending to conduct which is contrary to law, illegal, not sanctioned by law, or contrary to or not obeying the law or rules.[26] Her Honour reasoned that ‘unlawful activity’ is not confined to criminal activity.[27]
[25]Reasons [55].
[26]Ibid [64].
[27]Ibid.
However, even if it was confined to criminal activity, the judge concluded that the police had a basis to suspect breaches of the criminal law, including unauthorised possession of a poison,[28] obtaining a financial advantage by deception[29] and engaging in conduct that corrupts or would corrupt a betting outcome.[30]
[28]Contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981. Erythropoietin is a sch 4 poison.
[29]Contrary to s 82 of the Crimes Act.
[30]Contrary to s 195C of the Crimes Act.
In the result, the judge dismissed the proceeding.
Issues in the application for leave to appeal
The applicant seeks leave to appeal on eight proposed grounds of appeal. By separate notices of contention, the respondents seek to uphold the decision on additional grounds and contend that, even if the disclosure to Racing Victoria was unlawful, no relief should be granted.
There are three fundamental issues in the application for leave to appeal, which arise from the eight proposed grounds of appeal and notices of contention. First, does s 465 impose an implied duty of confidentiality on information derived from things seized on the execution of a search warrant?[31] Second, was the disclosure to Racing Victoria and ORIC permitted under IPP 2.1(e), (f) and (g) of the Privacy Act?[32] Third, if the disclosure was unlawful, what relief (if any) should follow?[33]
[31]Proposed grounds 1–3; first respondent’s notice of contention, ground 1; second respondent’s notice of contention, grounds 1–2.
[32]Proposed grounds 4–7; first respondent’s notice of contention, grounds 2–3; second respondent’s notice of contention, ground 3.
[33]Proposed ground 8.
It is convenient to deal with these issues separately.
A duty of confidentiality?
The statutory provisions
Section 465 of the Crimes Act provides:
(1)Any magistrate who is satisfied by the evidence on oath or by affirmation or affidavit of any police officer of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place —
(a)anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b)anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c)anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant —
may at any time issue a warrant authorizing some police officer or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates’ Court to be dealt with according to law.
…
Section 76(1) of the Magistrates’ Court Act provides that a search warrant may be directed to a named police officer, generally all police officers, or any other person authorised by law to execute a search warrant. Section 78(1) provides for the authority conferred by a search warrant, which includes to break, enter and search any place or vehicle named or described in the warrant and to bring the article, thing or material before the Court so that the matter may be dealt with according to law.
Section 78(6) provides that the Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.
Section 51 of the Police Act provides that a sworn police officer has the duties and powers of a constable at common law.
The applicant’s submissions
The applicant submits that information obtained through the exercise of coercive statutory powers, including those authorising a search warrant, may only be used for the purpose for which the power was conferred and should not be disclosed to third parties for other purposes in the absence of consent. He submits that there is no relevant distinction between an item or thing that is seized and information that may be derived from it. He gave the example of a computer hard drive and the data that is stored on it. A restriction on the use of the hard drive would be meaningless if there were no restrictions on the ability to extract and use the information contained on it.
The applicant submits that the judge erred in holding that there was no authority in support of the proposition that the limitation in Johns applied to information gleaned from the execution of the warrant. First, he referred to the passage in the judgment of Brennan J where his Honour said: ‘when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred’.[34]
[34](1993) 178 CLR 408, 423; [1993] HCA 56.
Next, he says that in Williams v Keelty, Hely J must be taken to have accepted that, in the context of a search warrant, any limitation in relation to seized documents must also extend to information contained in those documents. That conclusion emerges from the fact that Hely J upheld the seizure of documents but only on an undertaking that documents seized or information in those documents would not be used in civil proceedings.[35] To similar effect, he says that in Rich, Austin J characterised a search warrant power as conferring power to require disclosure of information, which engaged the principle identified by Brennan J in Johns.[36]
[35](2001) 111 FCR 175, 227 [244]; [2001] FCA 1301.
[36](2005) 188 FLR 416, 463–4 [246]–[248]; [2005] NSWSC 62.
Applying the principle in Johns, the applicant contends that Victoria Police obtained the syringes in the course of their criminal investigation pursuant to a warrant issued for that purpose and subsequently obtained the technical analysis which they disclosed to Racing Victoria. He says that information was derived from execution of the warrant, or the items seized, and the duty of confidentiality which applied in respect of the seized items, explained in Johns, must also apply to information derived from them.
He submits that the limitation on the use of the information derived from the execution of the warrant is a statutory constraint,[37] which is implied into s 465 of the Crimes Act and prevails over any common law power of disclosure.
[37]Johns (1993) 178 CLR 408, 424 (Brennan J), 467 (McHugh J); Katsuno v The Queen (1999) 199 CLR 40, 57 [24] (Gaudron, Gummow and Callinan JJ), 65 [54] (McHugh J agreeing); [1999] HCA 50 (‘Katsuno’); Rich (2005) 188 FLR 416, 477–8 [305] (Austin J); [2005] NSWSC 62; Flori [2015] 2 Qd R 497, 507 [41] (Atkinson J); [2014] QSC 284; Apache Northwest Pty Ltd v Agostini (2009) 177 FCR 449, 478 [129] (McKerracher J); [2009] FCA 534.
The applicant also submits that the limitation on the use of the information derived is consistent with the express obligation to carry the seized things to the Magistrates’ Court so that they can be dealt with ‘according to law’. He submits that the directions that a magistrate may give in respect of the items seized are also constrained by the purpose of being used for the investigation and prosecution of indictable offences. Alternatively, he says that even if the magistrate may give broader directions in respect of the items, that does not derogate from the implied duty on the officers who execute the warrant.
He says that there is no scope for any common law powers or duties of disclosure to operate because they would be inconsistent with the (implied) statutory limitation in s 465. He sought to distinguish Woolgar and Zierk on the basis that neither case involved information obtained pursuant to the exercise of coercive powers.
Submissions of Victoria Police
Victoria Police submits that no implied obligation of confidence arises from s 465 and, even if it does, it is subject to the common law powers and functions of police identified in Woolgar and Zierk.
First, s 465 expressly regulates what is to happen in relation to items seized under a warrant. They are to be seized and then carried to the Magistrates’ Court to be dealt with in accordance with law and the directions of a magistrate. There is no room for any additional constraint.
Second, the asserted obligation of confidence would be inconsistent with the ancient common law duties, powers and functions of police to preserve the peace, protect life and property, prevent crime and to uphold the law.[38] Victoria Police submits that there is a standalone common law duty, power or function, which empowers a police officer to disclose information of potential wrongdoing that has been obtained in the performance of his or her duties, powers and functions in conducting a criminal investigation, to the relevant regulator. Alternatively, if not standalone, it is an aspect or incident of the common law duties, powers or functions mentioned.
[38]Zierk (2008) 184 A Crim R 582, 586 [18] (Warren CJ); [2008] VSC 184.
Victoria Police notes that the power to apply for a warrant is given to a police officer at or above the rank of senior sergeant and a warrant provides authority to a police officer or some other person to enter and seize the relevant item. In enacting s 465, Parliament must be taken to be cognisant of the powers and duties of sworn police officers, including those at common law.
Third, there is no basis to impose an unconfined obligation of confidentiality on all information derived from the execution of a warrant under s 465 and it is not supported by authority.
Submissions of Racing Victoria
Racing Victoria says that it was free to rely on the information lawfully obtained and provided to it by Victoria Police. Further, even if the information was unlawfully provided to it (which it denies), it was permitted to use it but the extent of its permitted use in disciplinary proceedings was subject to a determination by the Victorian Racing Tribunal about the admissibility of, and the weight to be accorded to, that evidence.
It otherwise adopts the submissions of Victoria Police.
Consideration
The authorities
The applicant relies on a series of cases which he says support the existence of an implied duty of confidentiality in relation to information obtained via search warrants. Before turning to them, it is important to remind oneself that the issue raised is whether the duty of confidentiality contended for is to be implied into s 465. It involves a question of construction. While cases on other legislative regimes may provide some context, articulate principle and show how other like provisions have been construed, it is important not to confuse a statement of principle with the outcome of that principle in a particular legislative context.
Johns
In Johns, a delegate of the Australian Securities Commission (the ‘ASC’) authorised disclosure of certain transcripts of compulsory examinations conducted by it to a State Royal Commission inquiring into the affairs of a group of companies associated with the examinee. The transcripts were later tendered in evidence in public hearings and the Royal Commission made them available to the media.
There were two relevant powers exercised in Johns. The first, s 19(2)(b) of the Australian Securities Commission Act 1989 (Cth), empowered the ASC to compel certain persons to attend for examination on oath, which was to be conducted in private. Section 25(3) empowered the ASC to give a transcript to the examinee. Section 127(1) required the ASC to ‘take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers’. The second relevant power was s 127(4)(b), which authorised disclosure of information where it would enable or assist the government or agency of a State or Territory to perform a function or exercise a power.
Brennan J held that: ‘[a] statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which information when obtained can be used or disclosed.’[39] As a corollary, the statute imposes on the person who obtains the information a duty not to disclose it except for the relevant purpose.[40] The statutory duty of confidence reflects the purpose for which the power is conferred. It is imposed by statute, not equity,[41] and does not depend on the information attracting qualities of confidence that would support a suit in equity.[42] However, the equitable remedy of injunction is available to enforce a statutory duty against a public authority.[43]
[39]Johns (1993) 178 CLR 408, 424; [1993] HCA 56. See also 436 (Dawson J), 455, 457 (Toohey J), 458 (Gaudron J), 467–8 (McHugh J).
[40]Ibid.
[41]Ibid 427.
[42]As to which see Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 442–3 (Gummow J); [1987] FCA 266.
[43]Johns (1993) 178 CLR 408, 427 (Brennan J); [1993] HCA 56.
In Johns, the more specific application of the general principle concerned a power to obtain information by oral examination of a witness. Such a power is not a precise analogue with a power to seize tangible things. The law has not generally treated the seizure of documents and the compulsion of testimony in exactly the same way. A person is under no obligation to talk to police or investigating authorities and may remain silent. Even where under compulsion, the privilege against self-incrimination subsists unless unequivocally abrogated. On the other hand, in the context of resistance to the seizure of documents, the primary interest protected is privacy. As explained by the High Court in George v Rockett:
In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasion of his privacy and property.[44]
[44](1990) 170 CLR 104, 110 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 26.
Cases under the Crimes Act (Cth)
The Commonwealth warrant provisions contained in the Crimes Act(Cth) authorise the seizure of ‘evidential material’. ‘Evidential material’ is defined in s 3C(1) to mean ‘a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.’ A ‘thing relevant to an indictable offence’ and a ‘thing relevant to a summary offence’ are defined in s 3 in very broad terms. The concept of ‘evidential material’ extends to information stored in a computer in electronic form.[45]
[45]Rich (2005) 188 FLR 416, 458 [218] (Austin J); [2005] NSWSC 62.
Williams v Keelty
In Williams v Keelty,[46] search warrants were issued, on application by an officer of the Australian Securities and Investments Commission (‘ASIC’), a few months after an ASIC investigation had commenced. It was argued that the search warrants were invalid because they were issued for an improper purpose, namely, to assist in the investigation of civil wrongdoing. In dealing with that contention, Hely J considered whether the fruits of a valid warrant executed in the course of a criminal investigation could later be used in civil proceedings. He concluded that they could not. He observed that ‘it would be consistent with general principle to hold that it would be improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant.’[47] He said that general principle was reflected in s 3F(5) of the Crimes Act (Cth), which at the time provided:
If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.
[46](2001) 111 FCR 175; [2001] FCA 1301.
[47]Ibid 224 [233].
Hely J observed that s 3F(5) was:
… a limited legislative permission to make the things seized available to officers of other agencies and s 3ZV(1) obliges the return of things seized, subject to a contrary order of a Court, if the reason for seizure no longer exists, or if it is decided that the things seized are not to be used in evidence.[48]
[48]Ibid.
His Honour went on to say that to use the documents seized for a purpose other than the purposes contemplated by the warrant, such as, for example, as evidence in the civil proceedings, would be an abuse of power.[49]
[49]Ibid 227 [244].
Rich
In Rich, Austin J also considered the extent to which information derived from the execution of a warrant in the course of a criminal investigation could be used in civil proceedings. ASIC investigated directors of a company for possible criminal and civil contraventions of the Corporations Act 2001 (Cth). Based on a suspicion of identified criminal offences, ASIC obtained and executed a search warrant under the Crimes Act (Cth).
Austin J referred to the general purpose of the warrant provisions in the Crimes Act (Cth) as follows:
As the Full Federal Court remarked in Hart’s case,[50] at [65], the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them, and ‘recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined’. On the other hand, when one bears in mind that the search of premises and seizure of goods is illegal unless authorised by law, and the law establishes a very detailed regime for authorisation of seizure under a warrant (‘an invasion of interests which the common law has always valued highly’: George v Rockett),[51] any ambiguity or doubt as to the meaning of the statutory words will be resolved in favour of the rights and freedoms of the subject …[52]
[50]Hart v Commissioner, Australian Federal Police (2002) 124 FCR 384.
[51](1990) 170 CLR 104, 110–11.
[52](2005) 188 FLR 416, 452 [186]; [2005] NSWSC 62.
Austin J noted that the requirements for the issue of a warrant, and the scope of the authority conferred by it, are tied to the concept of ‘evidential material’, which in turn is tied to a relevant indictable or summary offence.[53] In doing so, he observed ‘the linkage between the validity and scope of the warrant and the requirement of reasonable grounds for suspicion of an offence.’[54]
[53]Ibid 463 [241].
[54]Ibid 463 [242].
Austin J referred to s 3F(5) of the Crimes Act (Cth), set out above, and observed that the section ‘aligns the authority conferred by the warrant to the offences to which the seized things relate.’[55]
[55]Ibid 463 [243].
Austin J noted that the Crimes Act (Cth) did not contain express provisions limiting the use to which seized items may be put after the warrant has been executed.[56] He then applied the general principle in Johns and concluded that: ‘the search warrant power is conferred for the purpose of obtaining evidential material, that is, material relevant to an indictable or summary criminal offence specified in the warrant, or some other indictable offence.’[57]
[56]Ibid.
[57]Ibid 464 [248].
He concluded that there was:
… an implied limitation emerging out of the structure and purposes of the search warrant legislation, combined with the general proposition that if a power is conferred for a particular purpose it is limited by the purpose for which the power is conferred.[58]
[58]Ibid 477 [305].
The common threads between the purpose for which a warrant is obtained, the limit in s 3F(5) on passing the material on to other agencies, and the general principles in Johns combined to produce that result.
Ultimately, Austin J concluded that it would be improper to use material derived from the execution of a warrant in subsequent civil proceedings.[59] He said:
It appears from the cases that the search warrant materials cannot be used for a later civil proceeding even if those materials have been used for the purposes of a single investigation with criminal and civil elements, prior to the commencement of the civil proceeding.
This entails that if a regulatory agency has used search warrant materials during the course of an investigation, and decides to initiate a civil proceeding, care will need to be taken not to use, for evidentiary purposes or otherwise in connection with in the civil proceeding, any of the search warrant materials …[60]
[59]Ibid 467–8 [262].
[60]Ibid 467–8, [262]–[263].
In reaching his conclusions, Austin J referred to the approach taken by Hely J in Williams v Keelty[61] and by Merkel J in Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd.[62]In the latter case, Merkel J said:
The problem confronting ASIC is that, because it is only entitled to use the documents and computer records provided by the AFP pursuant to s 3F(5) of the Crimes Act [(Cth)] ‘for the purpose of investigating or prosecuting an offence to which the things relate’ it is under a duty not to use the documents for any other purpose. ASIC accepts, quite correctly in my view, that use of the documents for the purposes of an inquiry in relation to a revocation of a licence under s 826 of the Corporations Law is not a use of the documents for the purpose of investigating or prosecuting an offence.[63]
[61](2001) 111 FCR 175; [2001] FCA 1301.
[62][2003] FCA 833.
[63]Ibid [6] (citations omitted).
However, Austin J accepted that where an agency is conducting a single investigation that has both criminal and civil aspects, it would not be improper to use the evidential material seized under warrant in that investigation.[64] In arriving at that conclusion, he observed that in Williams v Keelty, Hely J was concerned with the use of material in a proceeding rather than an investigation.[65]
[64](2005) 188 FLR 416, 469–70 [269]–[270]; [2005] NSWSC 62.
[65]Ibid 469 [267].
In both Williams v Keelty and Rich, s 3F(5) operated in a way that both identified, and limited, how things seized under a warrant could be used.
Smethurst v Commissioner of Police[66]
[66](2020) 94 ALJR 502, [2020] HCA 14 (‘Smethurst’).
In Smethurst, a case decided after judgment was given by the judge in this proceeding, AFP officers, acting pursuant to what was subsequently found by the High Court to be an invalid warrant, seized a mobile phone and copied and retained certain data from the phone and then returned the phone to the plaintiff. The issue arose as to whether the plaintiff was entitled to an injunction requiring the AFP to return or destroy the data. That question turned on the nature of the cause of action pursued by the plaintiff. A majority of the High Court held that she was not entitled to relief. The majority comprised Kiefel CJ, Bell and Keane JJ (the joint reasons) and Nettle J who wrote a separate judgment.
Part of the plaintiff’s claim to injunctive relief relied on the reasoning in Johns. She argued that the Crimes Act (Cth) deals exhaustively with what can be done with material seized under a warrant, and where material is seized under an invalid warrant, the police cannot rely on the statutory powers that attach to lawfully seized material.
The joint reasons observe that the decisions in Johns and Katsuno[67] stand for the proposition that information obtained in the exercise of a statutory power for one purpose cannot be used for another. They added that those cases ‘have application where there arises a question of construction as to whether a statute authorises the use to which information has been or is intended to be put.’[68]
[67](1999) 199 CLR 40; [1999] HCA 50.
[68]Smethurst (2020) 94 ALJR 502, 521 [57] (Kiefel CJ, Bell and Keane JJ); [2020] HCA 14.
Relevantly, the joint reasons commence by noting the common law’s insistence on ‘strictly confining any exception to the principle that a person’s home is inviolable.’[69] As a corollary, ‘[t]he power of search has always been regarded as an exceptional power, to be exercised only under certain justifying conditions’,[70] an essential condition being that ‘the object of the warrant is identified by reference to a particular offence’ so that the limit of the authority can be discerned.[71] The identification in the warrant of an offence is central to the warrant scheme because the purpose of a warrant is to aid criminal investigation and locate evidence which will be admissible at trial.[72] The existence of an identifiable criminal offence provides both the rationale for, and a limitation on, the existence of the power of search.
[69]Ibid 516 [22] (Kiefel CJ, Bell and Keane JJ) (citations omitted).
[70]Ibid 516 [23] (Kiefel CJ, Bell and Keane JJ) (citations omitted).
[71]Ibid 516–17 [25] (Kiefel CJ, Bell and Keane JJ).
[72]Ibid 517 [26], [28] (Kiefel CJ, Bell and Keane JJ).
Turning to how seized evidential material may be used, the joint reasons note that the topic is dealt with specifically by s 3ZQU of the Crimes Act (Cth) (which had replaced s 3F(5)). Section 3ZQU(1) provides that a relevant officer may use, or make available to another relevant officer to use, things seized for certain specified purposes if it is necessary to do so for that purpose. Those purposes include: (a) preventing, investigating or prosecuting an offence; and (l) the performance of the functions of the Australian Federal Police under s 8 of the Australian Federal Police Act1979 (Cth) (the ‘AFP Act’). Section 3ZQU(4) provides that the section does not limit any other law of the Commonwealth that requires or authorises the use of a document or other thing or requires or authorises the making available of a document or other thing.
Section 8 of the AFP Act specifies the functions of the AFP, including the provision of ‘police services’ to prevent crime and protect persons from injury or death. The majority note that: ‘[t]he description of ‘police services’ has been held to encompass associated activities such as the investigation of complaints about the commission of crimes with a view to the identification of offenders’.[73]
[73]Ibid 522 [64] (Kiefel CJ, Bell and Keane JJ) (citations omitted).
It follows that s 3ZQU authorised the AFP to use seized material in furtherance of its functions that extended beyond the prosecution of offences.
In Smethurst, the potential application of s 3ZQU was complicated by the fact that the Court held that the warrant was invalid because of its failure to adequately specify the offence. It followed that the evidential material was not seized under a warrant. As a consequence, s 3ZQU(1) of the Crimes Act (Cth) did not apply because, in its terms, that section only applied to evidential material ‘seized under’ a warrant under Pt IAA of the Act. It had no application to an invalid warrant and could not be relied on to justify the retention and use of the material. However, because s 3ZQU(4) provided that s 3ZQU did not limit the operation of any other Commonwealth law which authorises the use of a document of a thing, s 8 of the AFP Act applied of its own force. That meant that s 8 authorised the AFP to use material in its possession even though it had not been lawfully obtained. Whether the AFP would be permitted to use the information in a prosecution would depend on the application of s 138 of the Evidence Act 1995 (Cth) in that prosecution.
Gageler J agreed with the joint reasons on this point. He said:
I also agree with Kiefel CJ, Bell and Keane JJ for the reasons they give that the lack of specific statutory authority for the AFP to do or have done each of those things does not mean that the current retention of the data is outside the statutory authority of the AFP. Retention of the data is within the capacity that the AFP must have to perform its function under s 8(1)(b)(i) of the [AFP Act] of providing ‘police services’ in relation to laws of the Commonwealth. The discretion conferred on a court by s 138 of the Evidence Act 1995 (Cth) to admit evidence obtained ‘in contravention of an Australian law’ in the prosecution of an offence against a law of the Commonwealth would make little sense unless a law enforcement agency such as the AFP has capacity to retain for the purpose of investigating and prosecuting such an offence material that it was not authorised by statute to obtain. Section 8(1)(b)(i) of the [AFP Act] is sufficiently broad to provide the requisite source of that capacity.[74]
[74]Ibid 532 [116].
Flori
In addition to the cases dealing with the Crimes Act (Cth), the applicant relied on Flori, mentioned above, a decision of the Supreme Court of Queensland that the judge distinguished.
In Flori Atkinson J, drawing on Williams v Keelty and Rich, concluded in relation to the relevant Queensland legislation that:
The implied limitation arising from the structure and purposes of search warrant legislation applies to the use of the material seized pursuant to the search warrant in this case. The material may not be used for purposes other than those comprehended by the warrant.[75]
[75][2015] 2 Qd R 497, 507 [40]; [2014] QSC 284 (citations omitted).
Construction of s 465
It follows from the authorities that the general principle is clearly established. A power can only be exercised for the purpose for which it is conferred and, a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which information, once obtained, can be used or disclosed. Those principles have been applied to search warrants. However, as Smethurst makes clear, it is necessary to construe the legislation in order to discern what limitations s 465 imposes on the use of things seized under warrant. Determination of that question is a necessary starting point for the further inquiry as to limitations on information derived or obtained as a result of executing the warrant or seizing the things. It would be surprising if information derived from a seized thing would enjoy a higher level of protection than the thing seized.
There can be little doubt as to the purpose for which a warrant may be issued. It is to facilitate the investigation and prosecution of identified indictable offences. That conclusion follows from the long history of search warrant legislation and from the text of s 465. The more difficult question is how far that purpose carries through to limit the use of the items once seized.
The answer lies in the three critical textual components of s 465: the connection between the search and indictable offence(s); the identity of the repository of the power to apply for, and execute, a search warrant; and the obligation to carry the things to the Magistrates’ Court which has the power to direct that anything seized be dealt with according to law.
Indictable offence
Section 465 operates in respect of ‘anything’ which has a relevant connection to the commission of an indictable offence. The connection is supplied by the three subparagraphs of sub-s (1):
(k) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(l) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(m) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant.
Section s 465 is consistent with other warrant provisions in that, as explained in Smethurst, the investigation, prosecution or prevention of an indictable offence provides the justification for the invasion of privacy authorised by the warrant and enables the limits of the authority to be discerned.
Repository of power
In considering the use to which material obtained under warrant may be put, it is relevant to identify who may apply for and execute a warrant. An application must be made by a police officer of a certain rank, and executed by police officers or other persons authorised by law. The effect of the successful execution of a warrant will be to place the things seized in the hands of police.
In Zierk, Warren CJ considered the duties or functions of sworn police officers, noting:
The ‘duties’ of a police officer are ancient and include: the duty to preserve the peace; the duty to protect life and property; the duty to prevent crime; the duty to detect crimes when they occur; the duty to apprehend offenders; the duty to prevent obstructions of highways; and the duty to uphold the law.[76]
[76](2008) 184 A Crim R 582, 586 [18]; [2008] VSC 184 (citations omitted).
These duties find statutory reflection in s 51 of the Police Act and are similar to those in s 8 of the AFP Act, to which the High Court referred in Smethurst. They are not limited to the investigation and prosecution of crime. The powers and duties extend to the preservation of the peace and the protection and safety of people.
The applicant submits that the common law duties of police are irrelevant. He says that the implied obligation of confidence, based on the Johns line of authority, is a statutory obligation that prevails over common law principles. He says that this is an example of Parliament’s sovereignty over the common law.[77] However, that argument fails to come to grips with the anterior step that, in construing s 465, it is relevant that the section confers powers on officers who have well-established common law and statutory powers. Approached in that way, there is no necessary conflict between the Crimes Act and the common law. Rather, the two, at least in this respect, can be read together. In other words, the common law with respect to police powers forms part of the landscape in which the provision is intended to operate.
[77]Citing R (on the application of Miller) v The Prime Minister [2019] UKSC 41, [41] (Lady Hale and Lord Reed); A v Hayden [No 2] (1984) 156 CLR 532, 540 (Gibbs CJ); [1984] HCA 67.
Victoria Police relied on a number of English authorities that set out various circumstances in which police officers might disclose confidential information that they obtain in the course of their duties. In Woolgar,[78] police conducted a criminal investigation concerning the conduct of a registered nurse employed in a nursing home. As part of that investigation the nurse was interviewed under caution. Subsequently, the police formed the view that there was insufficient evidence to warrant a prosecution but determined to provide a copy of the record of interview to the regulatory body with oversight of nursing. The question was whether police were authorised to pass on the transcript.
[78][2000] 1 WLR 25.
In concluding that the police were authorised to do so, Kennedy LJ referred to what Sir Nicolas Browne-Wilkinson VC had said in Marcel:
In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner … [I]f communication to others is necessary for the purpose of the police investigation and prosecution, it is authorised. It may also be, though I do not decide, that there are other public authorities to which the documents can properly be disclosed, for example to City and other regulatory authorities or to the security services. [79]
[79]Ibid 33, citing [1992] Ch 225, 235.
In determining whether and in what circumstances there might be the power to disclose, Kennedy LJ referred to the public interest in the free flow of information to police that might be impeded if the police were free to use that material for extraneous purposes and the harm that such disclosure might cause. However, he concluded that:
… where a regulatory body such as [the nursing regulator], operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained.[80]
[80]Ibid 36.
Kennedy LJ went on the say that even where there is no request from the regulatory body, the police would be free to pass on information to the relevant regulatory body if, in their reasonable view, in the interests of public health or safety, disclosure should occur.[81]
[81]Ibid.
To similar effect, in Zierk, Warren CJ observed that:
… if a member comes into possession of a document pertaining to the handling of weapons and is not authorised to disclose it, the effect of the disclosure may be relevant to whether the duty arises. If the disclosure would impede the detection, investigation or prosecution of criminal acts, or place members at risk, a duty of non-disclosure would arise. Conversely, if the disclosure would ensure adherence to safety requirements to prevent injury to members in the performance of their police functions, a duty of non-disclosure would not arise.[82]
[82](2008) 184 A Crim R 582, 590 [36]; [2008] VSC 184.
Given the restrictions on the disclosure of personal information that are contained in the Privacy Act, the power of police to disclose personal information is more constrained than under the common law. However, the more general point, that police officers have duties and obligations that extend beyond the investigation and prosecution of criminal offences, remains important to the construction of s 465. Those duties extend to public order and safety.
Role of the Court
The third, and for present purposes most important, aspect of s 465, is the role of the Magistrates’ Court.
The authority conferred by a warrant under s 465 is clear and limited. It is to search, seize, and carry anything seized to the Magistrates’ Court ‘to be dealt with according to law’. Once a thing, falling within the warrant, is seized, the police officer must bring it directly to Court. The warrant provides no authority for the police officer to deal with the thing before it is taken to Court and, once in the control of the Magistrates’ Court, any dealing with the thing is subject to directions which must be in accordance with law. The requirement to take the seized things before the magistrate both limits the power of the executing authority and confers the power on the Magistrates’ Court to direct what should be done with seized items.
Brooking J, in the course of his judgment in Allitt v Sullivan, comprehensively set out the history of search warrant provisions and said of s 465:
The power and the duty of the police officer executing a warrant is to take what he has seized before a justice to be dealt with by him according to law: once he has seized the goods, that is his only power in relation to them. He is not entitled, for example, to retain what he has seized for the purpose of facilitating his investigations instead of taking the seized property before a justice. If the things the subject of the warrant are documents, the warrant gives the officer no power to read them except for the purpose of identifying what he is to seize. Once he has identified and seized the documents, his task is to take them before a justice. How is the justice to deal according to law with what has been seized? I see no difficulty here. If goods have been seized as suspected stolen property, and it appears that they were not stolen, then they will be restored by the justice to the possessor, but if it appears that they were stolen then they will be deposited by the justice in the hands of the police. Where criminal proceedings have been commenced or are in contemplation the justice should give effect to the common law right of the police to retain possession of property required for the prosecution, the right of the police being, of course, not limited to cases of theft. The cases show that it would be proper to allow the police to retain possession of things seized not only for the purpose of using them as evidence but also for the purpose of using them in the course of investigation. If a document was clothed with legal professional privilege then the justice would deal with it according to law if he directed that it be returned to the person from whose premises it was seized.[83]
[83][1988] VR 621, 639 (‘Allitt’) (citations omitted).
A few points may be highlighted from that passage. First, the only use to which seized goods may initially be put is taking them before a magistrate. Second, Brooking J held that it would be open to a magistrate to allow police to retain the goods to give effect to a common law right of the police to retain possession for the prosecution. This approach, at least in a limited respect, accords with the observations made above about the repository of the power. Third, retention of the goods for further investigation was legitimate.
Of course, in considering the scope of the phrase ‘according to law’, it is important to keep in mind the strictness with which the common law has viewed search warrant powers. Equally, the purpose for which the information was gathered must be a powerful factor in the articulation of permitted use. Both of those factors tend to tether the use to the purpose of investigation and prosecution of criminal offences.
As already noted, the applicant did not rely on the Privacy Act as a basis for his proceeding and did not allege that the syringes or the information derived from them were dealt with other than according to law as required by s 465. Rather, his case depended on the existence of an implied duty of confidentiality. However, it is necessary to consider the scope of the expression ‘according to law’ in order to address the applicant’s asserted obligation of confidence. In that regard, we would not confine the permissible subject matter of a direction by a court under s 465 to the investigation and prosecution of an indictable offence (although there is no reason why a magistrate could not make a narrow direction of that kind). That is so for four reasons. First, Parliament has not chosen to expressly circumscribe the power of the Magistrates’ Court to give directions. Textually, the phrase ‘according to law’ is broad and there is no reason to give the words a narrow construction so as to confine permitted use to the investigation and prosecution of crime. The phrase ‘according to law’ means a dealing that is authorised or permitted by law. It is capable of bringing into play a broad range of laws, including the common law, that may be relevant to what should happen to the particular item(s) in question. Those laws include the Privacy Act, which may prevent a dealing with seized items, and in certain cases information derived from them, if the dealing would constitute an unlawful disclosure or use of personal information. Such a dealing would not be ‘according to law’.
Second, in examining the nature of the power to give directions, it is important again to take into account the nature of the body to whom the direction is to be given. In the case of s 465, it is police officers who will bring the seized item(s) before the Court and who have a range of powers and duties that are not limited to the enforcement of the criminal law, but extend to preserving the peace and protecting the safety of people and property. That may in turn involve the disclosure of investigatory material to regulatory authorities.
Third, the outcome of a criminal investigation is necessarily uncertain. There may be any number of reasons why an investigation does not result in a prosecution but nevertheless, an item seized may be relevant to public safety or wrongdoing, short of a criminal offence. In those cases, there will be a strong public interest in the Magistrates’ Court having the power to direct that the item(s) be handed over to a relevant regulatory agency. Unless there is some other specific prohibition that would prevent such a direction, we do not accept that the broad power in s 465 should be interpreted to preclude such a course.
It is also improbable that the power of the Magistrates’ Court to deal with the seized items would come to an end as soon as the police determine that no criminal charges are to be laid. In our view, the Magistrates’ Court would, in that circumstance, retain the power to direct that the items be dealt with in accordance with law, including but not limited to a return of the goods under s 78(6) of the Magistrates’ Court Act. That suggests that the phrase ‘according to law’ is not confined to directions for the use of the seized item in the investigation or prosecution of criminal offences.
Fourth, the power to return items to the owner under s 78(6) is subject to ‘the interests of justice.’ Again, a very broad concept has been employed, which is not tied to the absence of an intention to prosecute. That suggests that the goods may be dealt with in a manner that does not involve the return of the goods to their owner even where there is to be no prosecution.
It follows that, subject to obtaining a direction of the Magistrates’ Court, a police officer can use items that are seized under a warrant and that use may extend beyond the investigation and prosecution of an offence.
As noted earlier, it is not suggested that Victoria Police have dealt with the syringes other than in accordance with the directions of the magistrate. Nor is it said that the transmission of the information to Racing Victoria itself constituted a dealing with the syringes.
A limit on disclosure of information derived from things seized under the warrant?
With that background, we turn to the central case of the applicant, which is that s 465 imposes a separate and concurrent limitation on the use of information derived from the execution of the warrant.
The first thing to note from the textual analysis above is that s 465 does not deal with information — it deals with physical or tangible things — and, on seizure, directs that they be taken into the custody and control of the Magistrates’ Court.
However, in respect of some items, there may be no material distinction between the thing and the information derived from it. A document or electronic data stored on a storage device provide obvious examples. To treat ‘the thing’ as being disconnected from the information it contains, or may yield on examination, would be artificial. To treat a copy of such material as entirely beyond the reach of s 465 would seriously erode the protective purpose underpinning the section. In Rich and Williams v Keelty, the prohibition in relation to the use of seized computer items extended to the information they contained, albeit that this may also be attributed to the wide definition of ‘evidential material’ in the Crimes Act (Cth).
Although the underlying principles exposed in the authorities are designed to protect the privacy and inviolability of the home as much as the proprietary or other interest in the thing, s 465 deals expressly with the thing. Where an officer derives information by dealing with the item, then the terms of s 465 will operate to provide a measure of control over that information. That is because the dealing which enables the information to be obtained must be in accordance with law and after the item has been taken before a magistrate. In this case, the information was obtained by forensic analysis of the syringes which occurred pursuant to a direction of a magistrate. The information could not have been gained lawfully by sending the syringes directly to the laboratory without first taking them before a magistrate.
Further, a direction of a magistrate may limit how the item may be dealt with and therefore how information may be derived from it. At least where it is necessary to do so to preserve the integrity of, or control over, the seized item, those directions may also limit, either expressly or by implication, the use to which information derived from the seized items may be put.
Beyond the express restrictions in s 465 and those that may attach to specific directions given by the Magistrates’ Court, we are unable to find in s 465 any limitation on how the information that is derived from seized items may be used. It would be entirely incongruous to impose an implied duty of confidence on information derived from a warrant that was stricter than, or divorced from, the obligations that a magistrate could impose in relation to seized items. In the course of a criminal investigation, it will also be difficult to disentangle information that is derived from a warrant and that derived from other sources. This difficulty in application also tends against the applicant’s construction of s 465.
In this way, any restriction on the use or disclosure of information derived from a thing seized in execution of a warrant issued under s 465 arises, not from an implied prohibition to be found in that provision but, if at all, from the terms upon which a magistrate makes orders for dealing with the thing according to law or other prohibitions in the general law.
It follows that the applicant has failed to establish the implied duty for which he contended and the judge was correct to reject it. Further, and for the following reasons, we are satisfied that the disclosure of the information to Racing Victoria was not a breach of the direction that was given in relation to the syringes. Indeed, as mentioned above,[84] the contrary was not argued.
[84]See [122] above.
Neither the terms of the direction, nor the surrounding circumstances, permits a conclusion that the information derived from examination of the seized items was only to be used for a criminal investigation or prosecution. First, the direction expressly addressed the seized items, requiring them to be kept in the possession of Victoria Police until required in Court. Although there was no express direction to this effect, we are prepared to assume that it was intended that the syringes themselves only be used in the investigation and prosecution of an offence and that any other dealing would require a further direction of the Court.
However, the control exercised over the syringes did not, in this case, translate into control over the information derived from the forensic examinations. Unlike in Johns and Rich, which concerned transcripts of testimony and electronic data, the information derived from the analysis of the syringes is readily distinguishable from the syringes themselves. Disclosing the information that had been obtained that the syringes contained EPO, equine blood and DNA belonging to a particular horse, as distinct from deriving that information, did not constitute a dealing with or use of the syringes. In this case, it is possible to keep the disclosure of the information and the dealing with the seized goods conceptually and physically separate.
Second, although the direction expressly permitted the analysis to take place, there was no requirement that the product of those investigations be produced to the Court or otherwise dealt with in any particular way. Even the strictness that accompanies the construction and execution of warrants does not require that implication to be drawn.
Third, it was entirely unknown what the analysis would reveal. In the circumstances, and given both the duties and obligations of police, it is reasonable to construe the direction from the magistrate on the premise that any information obtained would form part of the reservoir of information held by investigating police and that it would be used in accordance with the duties and obligations identified above.
We accept that the direction allowing for analysis of the syringes was made on the unstated assumption that any information derived from that analysis would be used for lawful purposes. However, in our view, any such limits arise from the independent obligations imposed on police officers rather than from s 465.
In our opinion, these conclusions are consistent with that reached in the joint reasons in Smethurst. It follows from Smethurst that the purpose for which the items were seized may not necessarily delimit the purposes to which the items, or any information derived from them, may be used. Even where information is received unlawfully, an AFP officer may use that information in the performance of his or her functions. There may be restrictions on the extent to which that information may be used in a legal proceeding but they arise not so much from the use of the information after it has been received but because the initial information was unlawfully obtained. It is possible that the use of information in a proceeding may constitute an abuse of process or impermissible interference with the criminal process, where, for instance, the information has been wrongfully obtained in the exercise of coercive powers.[85] Those circumstances do not arise here.
[85]X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29.
We would also observe that in both Williams v Keelty and in Rich, s 3F(5) of the Crimes Act (Cth) played a critical role. In the former, Hely J held that s 3F(5) was consistent with the general principle enunciated in Johns.[86] In Rich, Austin J noted that although there was no express limitation regarding the use to which seized items could be put after the execution of a warrant, s 3F(5) operated as a negative stipulation that the things could not be used for any other purpose apart from the investigation and prosecution of crimes.[87] To similar effect, in Smethurst, s 3ZQU(1) of the Crimes Act (Cth) was critical to the legal analysis of the scheme, albeit it was inapplicable in that case. There is no counterpart to s 3ZQU in relation to s 465 of the Crimes Act. Rather, as explained, s 465 allows that the things might be dealt with according to law. The phrase ‘according to law’ is much broader than the limited statutory authority found in the Crimes Act (Cth) and it does not carry a limitation of the kind found in Rich. Of course, the general principles in Johns are relevant to the construction of s 465 but, in our view, they do not lead to the conclusion sought by the applicant. Similarly, the outcome in Flori does not assist in the construction of s 465 other than by providing a further example of the general principle being applied to a particular statutory setting.
[86](2001) 111 FCR 175, 235 (Hely J); [2001] FCA 1301.
[87](2005) 188 FLR 416, 463 [243]; [2005] NSWSC 62.
The judge was also right to note that the absence of any limitation or implied duty of confidentiality in s 465 does not mean that members of Victoria Police are at liberty to use the information for any purpose.[88] Indeed, it is the existence of duties on police officers, and concomitant obligations, both common law and statutory, which support the construction of s 465 that we have adopted.
[88]Reasons [44].
To the extent that there was any enforceable restriction on the use to which the information could be put, including disclosure to Racing Victoria, it did not arise from s 465. That conclusion is important because the relevant cause of action on which the applicant claimed relief was a breach of a statutory duty of confidence arising from s 465. Having failed to establish the implied duty of confidence, his cause of action must fail.
The applicant did not rely on a common law or equitable duty on the part of the police to found an alternative claim for relief. It was Victoria Police that relied on the common law, submitting that the ancient common law duties provided a basis for disclosure. As explained above, the common law was relevant to the construction of s 465 and whether a duty of confidence is to be implied. However, once the question of construction was resolved against the applicant, the common law is irrelevant to any cause of action relied on by the applicant.
The Privacy Act
As mentioned, the applicant did not rely on the Privacy Act, either as a source of any right to prevent disclosure, or as informing the scope of the orders a magistrate might make under s 465. Nevertheless, compliance with the Privacy Act having been raised, the judge concluded that the disclosure was authorised under that Act. The grounds of appeal seek to put that conclusion in issue.[89] It is desirable, therefore, to address the issues raised in this context.
[89]See [45] above.
To recap,[90] the absence of an obligation of confidentiality on the police arising from s 465 does not mean that the purposes for which the police can use information derived from a thing seized under a warrant are unrestricted. The judge held that, in order to conclude that the disclosure of the personal information derived from the syringes to Racing Victoria was lawful, it was necessary to establish that the disclosure satisfied the requirements of the Privacy Act.[91] This was so because the disclosure of the personal information derived from the syringes was not for the purposes of a criminal investigation (which would be governed by the common law and the requirements of the statute under which the information was obtained) but to inform the regulator of concern about a licensed person. The judge held that the disclosure to Racing Victoria was permitted under the Privacy Act.
[90]See [110] and [138] above.
[91]Reasons [59].
The applicant did not allege that, by reason of a breach of the Privacy Act, there was a failure to deal with the seized items according to law and therefore a breach of s 465. In that context, it is important to observe that s 7 of the Privacy Act provides that nothing in that Act gives rise to any civil cause of action or operates to create in any person any legal right enforceable in a court or tribunal otherwise than in accordance with the procedures in the Act. Those procedures include the making of a complaint and its determination in the Victorian Civil and Administrative Tribunal,[92] and the serving of compliance notices by the Information Commissioner.[93] It would follow that even if there had been a breach of the Privacy Act by reason of the disclosure to Racing Victoria, it would not support the relief sought in this Court. For the reasons that follow, the judge was correct to find that there was no breach of the Privacy Act and it is not necessary to consider whether, given the terms of s 7, a breach of the Privacy Act would have supported the making of a declaration.
[92]Privacy Act s 73.
[93]Ibid s 78.
Personal information is defined in s 3 of the Privacy Act to mean:
... information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion …
The objects of the Privacy Act include balancing the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector.[94]
[94]Ibid s 5(a).
As part of the balancing exercise contemplated by the Privacy Act’s objectives, s 6 addresses the interplay between the Privacy Act and other legislation by stipulating that in the event of inconsistency, the provision of the other Act prevails. The wording of s 6(1) is somewhat cumbersome and it is necessary to set it out:
If a provision made by or under this Act … relating to an [IPP] or applicable code of practice is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.
Part 3, headed ‘Information privacy’ applies to, amongst other entities, Victoria Police.[95] Section 15 grants law enforcement agencies an exemption from complying with certain IPPs. It provides:
It is not necessary for a law enforcement agency to comply with IPP 1.3 to 1.5, 2.1, 6.1 to 6.8, 7.1 to 7.4, 9.1 or 10.1 if it believes on reasonable grounds that the noncompliance is necessary —
(a)for the purposes of one or more of its, or any other law enforcement agency’s, law enforcement functions or activities; or
(b)for the enforcement of laws relating to the confiscation of the proceeds of crime; or
(c)in connection with the conduct of proceedings commenced, or about to be commenced, in any court or tribunal; or
(d)in the case of Victoria Police, for the purposes of its community policing functions.
[95]Ibid s 13(1)(i).
The IPPs, which are set out in sch 1 to the Privacy Act, apply in relation to all personal information, whether or not collected by the organisation. Section 20(1) provides that an organisation must not do an act, or engage in a practice, that contravenes an IPP in respect of personal information collected, held, managed, used, disclosed or transferred by it.
Principle 1 deals with collection of personal information. Principle 2 addresses use and disclosure of personal information and prohibits the use or disclosure of personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless at least one of the conditions in (a) to (h) is satisfied. The relevant paragraphs on which Victoria Police rely are (e), (f) and (g), which are in the following terms:
(e)the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or
(f)the use or disclosure is required or authorised by or under law; or
(g)the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of a law enforcement agency—
(i)the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction;
(ii)the enforcement of laws relating to the confiscation of the proceeds of crime;
(iii)the protection of the public revenue;
(iv)the prevention, detection, investigation or remedying of seriously improper conduct;
(v)the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal;
…
Applicant’s submissions on the Privacy Act
The applicant submits that, to the extent that there is an inconsistency between the asserted implied obligation of confidence in s 465 of the Crimes Act and the Privacy Act, s 6 of the Privacy Act means that the former prevails.
Alternatively, he submits that non-compliance with the Rules of Racing is not ‘unlawful activity’ within IPP 2.1(e). He accepts that as a licensed trainer, the Rules of Racing are binding on him and enforceable by reason of s 5F of the Racing Act1958 and probably as a matter of contract. However, he submits that the phrase ‘unlawful activity’ is capable of being confined to a crime or breach of a statute and that, given that IPP 2.1(e) authorises disclosure of private information, the principle of legality and s 32 of the Charter of Human Rights and Responsibilities (the ‘Charter’) require it to be read in this restricted way.
He next submits that to the extent that police suspected the applicant of criminal acts, Racing Victoria was not a relevant person or authority to whom the disclosure could be made under IPP 2.1(e).
The applicant submits that IPP 2.1(f) does not impose a positive duty on police to disclose information obtained under a search warrant. Due to the implied statutory duty of confidentiality, the use or disclosure of the information was not required or authorised by law and IPP 2.1(f).
In relation to IPP 2.1(g), he submits that the Rules of Racing are not laws and do not give rise to criminal offences and that Racing Victoria is not a law enforcement agency.
Victoria Police submissions on the Privacy Act
Victoria Police submits that the phrase ‘unlawful activity’ is not ambiguous such as to bring into play the principle of legality; its meaning is straightforward: conduct that infringes a statutory or common law prohibition. Here, the evidence of Detective Superintendent White was that the syringes were seized due to a suspected contravention of the criminal law (possession of a poison) and the Rules of Racing which ‘apply to and may be enforced against’ a person — such as the applicant — who holds a licence issued by Racing Victoria.[96] Those Rules exist for the safety and probity of racing.
[96]Racing Act s 5F(1).
Victoria Police submits that Victoria Racing was a relevant person or authority for the purposes of IPP 2.1(e), even though it does not have jurisdiction to investigate or prosecute crime, because the suspected unlawful conduct formed a proper basis for it to investigate and determine contraventions of the Rules of Racing which, if substantiated, could be enforced by sanction.
By its notice of contention, Victoria Police contends that the information was also disclosable to Racing Victoria under IPP 2.1(f) and (g).
IPP 2.1(f) permits disclosure of information where ‘the use or disclosure is required or authorised by or under law’. Victoria Police submits that the disclosure was authorised by or under the common law powers and duties of police for the protection of safety. There is no reason to confine the reference to ‘law’ to mean statutory authorisation. It also captures the Rules of Racing.
Victoria Police submits that Racing Victoria is a ‘law enforcement agency’ contemplated by IPP 2.1(g) because it falls within the exhaustive definition in s 3, specifically:
(n)an agency responsible for the performance of functions or activities directed to—
(i)the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction for a breach;
…
IPP 2.1(g)(i) permits disclosure where the organisation reasonably believes that the use or disclosure is reasonably necessary for: ‘the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of the law imposing a penalty or sanction’ by or on behalf of a law enforcement agency. Victoria Police submits that there are penalties and sanctions that may be imposed under the Rules of Racing for the possession or use of EPO.
Further, it relies on IPP 2.1(g)(iv), which permits disclosure where the organisation reasonably believes that it is reasonably necessary for ‘the prevention, detection, investigation or remedying of seriously improper conduct’ by or on behalf of a law enforcement agency. It notes that IPP 2.1(g)(iv) is not confined to unlawful conduct but extends to ‘seriously improper conduct’, which comfortably describes possession and use of EPO in a racing context.
Finally, Victoria Police submits that, although the disclosure was permissible on the basis of IPP 2.1(e), (f) and (g), even if it was not, s 15 of the Privacy Act applied with the consequence that Victoria Police was not obliged to comply with IPP 2.1.
Section 15 provides:
It is not necessary for a law enforcement agency to comply with [amongst other provisions, IPP 2.1,] if it believes on reasonable grounds that the noncompliance is necessary —
(a)for the purposes of one or more of its, or any other law enforcement agency’s, law-enforcement functions or activities;
…
Victoria Police submits that the protection of life and property is one of its functions and it was necessary to provide the information to Racing Victoria, the body with responsibility for regulating horse racing, to protect jockeys and horses.
Consideration
Given that the applicant has failed to establish an implied duty of confidentiality in s 465, s 6 of the Privacy Act is not engaged. It remains to consider whether the Privacy Act permitted the disclosure to Racing Victoria.
As noted, the judge found that the disclosure was authorised by IPP 2.1(e).
In order for that provision to apply, two conditions need to be satisfied. First, that Victoria Police suspected ‘unlawful activity’; and second, that Racing Victoria was a relevant person or authority.
Racing Victoria is a public company limited by guarantee and is certified by the Minister for Racing under s 3A of the Racing Act. It does not represent the Crown[97] and is not a public entity or public body.[98] However, it has the control and supervision of thoroughbred horse racing in Victoria.[99] The control of racing, to ensure its safety and probity, is of high public importance. Regulation of racing ‘is necessary both to ensure fair and open competition in racing and to maintain the health and wellbeing of horses and their jockeys.’[100]
[97]Ibid s 3D.
[98]Ibid s 3E.
[99]Reasons [1].
[100]Racing Victoria Ltd v Riley (2016) 51 VR 261, 263 [1] (Maxwell ACJ, Hansen and Osborn JJA); [2016] VSCA 230.
As noted, s 5F(1) of the Racing Act provides that the Rules of Racing[101] ‘apply to and may be enforced against’ persons including trainers licensed by Racing Victoria. The Rules of Racing prescribe various standards and obligations on trainers and provide for the investigation and determination of breaches of those standards either by the Stewards for lower level infractions or the Victorian Racing Tribunal for more serious breaches. The possible sanctions include suspension, disqualification and fines. The Rules of Racing are thus directed at identifying norms, the breach of which is unlawful.
[101]The ‘Rules of Racing’ are defined in s 5E to mean the rules, for the time being in force, of Racing Victoria.
This is reinforced by the observation that the Victorian Racing Tribunal has jurisdiction to hear appeals against a decision made under the Rules of Racing to impose a penalty depending on its severity, and has primary jurisdiction for more serious breaches.[102]
[102]Racing Act s 50K(1).
In our view, the judge was correct to conclude that a contravention of the Rules of Racing was ‘unlawful activity’ for the purpose of IPP 2.1(e). We agree with the judge that, although the principle of legality and s 32 of the Charter would support a restricted reading of ‘unlawful activity’, here there was no constructional choice to be made as it is clear that ‘unlawful activity’ extends beyond criminal conduct.
In any event, possession of EPO is a criminal offence.[103] The affidavit of Detective Superintendent White described a proper basis for a suspicion that the applicant was in possession of EPO and that it had been administered to a horse he trained. This involved a suspicion of possession of a sch 4 poison contrary to the Drugs, Poisons and Controlled Substances Act 1981 as well as breaches of the Rules of Racing.
[103]As noted earlier, erythropoietin is a sch 4 poison for the purposes of the Drugs, Poisons and Controlled Substances Act.
In our view, the judge was also correct to hold that Racing Victoria was a relevant person or authority for the purpose of IPP 2.1(e). Although Racing Victoria was not responsible for the investigation and prosecution of criminal offences arising in the context of racing, serious misconduct, which might be both criminal and a breach of the Rules of Racing, is relevant to Racing Victoria and the maintenance of integrity in racing. The word ‘relevant’ simply requires a sufficient connection between the unlawful activity and the statutory responsibilities of the person or authority.
The judge determined, based on her finding in relation to IPP 2.1(e), that it was not necessary for her to address Victoria Police’s submissions that the disclosure was also authorised by IPP 2.1(f) or (g).[104] In our view, the disclosure also fell within the scope of IPP 2.1(g). We will address these matters briefly.
[104]Reasons [69]–[70].
IPP 2.1(g)(i) permits disclosure where the organisation reasonably believes that the use or disclosure is reasonably necessary for: ‘the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of the law imposing a penalty or sanction’ by or on behalf of a law enforcement agency. We accept Victoria’s Police submission that the broad definition of ‘law enforcement agency’ in s 3 captures Racing Victoria. It regulates the racing industry in Victoria and can impose penalties and sanctions under the Rules of Racing for the possession or use of EPO. The disclosure was thus authorised by IPP 2.1(g)(i).
Finally, we consider that the disclosure was also authorised by IPP 2.1(g)(iv), which permits disclosure where the organisation reasonably believes that use is reasonably necessary for ‘the prevention, detection, investigation or remedying of seriously improper conduct’ by or on behalf of a law enforcement agency. As noted, Victoria Police had a proper basis for believing that the applicant was in possession of EPO and that it had been administered to a horse he trained. It is not unreasonable to classify the possession and use of EPO as ‘seriously improper conduct’ in the context of racing given the importance of protecting the wellbeing of horses and jockeys.
It is unnecessary to determine whether disclosure was also permitted under IPP 2.1(f), which permits disclosure of information where ‘the use or disclosure is required or authorised by or under law’. The phrase ‘authorised by or under law’ is broad. We would prefer to consider its limits in a case in which it matters. That is not this case.
Finally, and for similar reasons, it is unnecessary to determine whether Victoria Police could rely on the general exclusion in s 15.
Relief
The applicant has failed to establish that the disclosure by Victoria Police to Racing Victoria of the information contained in the letter of 20 August 2019 was unlawful. No entitlement to relief arises.
Although not directly relevant because of the conclusion at which we have arrived, the outcome in Smethurst demonstrates the difficulty that arises where police have unlawfully obtained evidence that is relevant to the prosecution of a criminal offence. In that respect, the joint reasons noted:
The general power given by s 8 is not expressed to be subject to a restriction respecting the use of documents or information and the manner in which they were obtained. Any such restrictions are to be found elsewhere. But neither the common law nor statute law presumes that information unlawfully obtained may not be used in the investigation or prosecution of an offence. Bunning v Cross held that evidence is not on that account alone excluded as admissible evidence. The public interest in bringing persons to conviction is to be weighed against any perception that the courts may be seen to approve unlawful conduct. The discretionary process by which this is achieved is now governed by s 138 of the Evidence Act 1995 (Cth). It would be to give decisive weight to the fact that the information was unlawfully obtained, contrary to the rationale of Bunning v Cross and s 138 of the Evidence Act, if the AFP was not able to retain the information for so long as it is required for the purposes of investigating and, if appropriate, prosecuting an offence or offences against Commonwealth law.[105]
[105](2020) 94 ALJR 502, 522–3 [65] (Kiefel CJ, Bell and Keane JJ); [2020] HCA 14 (citations omitted).
Had it been necessary to determine the question of relief, we would not have been persuaded to restrain Racing Victoria from using the information. That is so because the material is now in the public domain. Before the judge in the Trial Division, the applicant was successful in obtaining an interlocutory confidentiality order that prevented the inspection of material contained in the affidavits that were relied on at trial. Once the proceeding was dismissed, those orders were lifted. The applicant was given seven days to apply for further confidentiality orders. He declined to do so. In the result, the reasons for judgment and the affidavits relied on in the proceeding have been in the public domain. To the extent that the material was once confidential, that confidentiality no longer exists.
In Johns, relief was refused because the transcripts had been read in open hearings of the Royal Commission and provided to media outlets. Although in this case there is no evidence that the media or members of the public have inspected the affidavits or court file, nevertheless, they have been available for inspection and the discussion in open court has revealed a significant part of their contents.
Even if it had been established that the disclosure was unlawful, in the absence of being satisfied that the material was in fact confidential, we would not restrain Racing Victoria from using the material for the purposes of disciplinary proceedings concerning the applicant. In the event that the applicant is charged with a breach of the Rules of Racing, the Victorian Racing Tribunal can consider whether the material should be excluded. Although not bound by the rules of evidence, had the disclosure been unlawful, the Tribunal could be expected to apply s 138 of the Evidence Act 2008 in determining whether or not to permit reliance on the information. It is unnecessary here to make any further observations.
Conclusion
The issues in the application for leave to appeal were arguable and of some general importance. In the circumstances, we would grant leave to appeal. However, for the reasons given, the appeal must be dismissed.
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