Ko v Commissioner of Police, New South Wales Police (GD)

[2004] NSWADTAP 21

Appeal Panel - Internal

CITATION:	KO & anor -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21 revised - 9/05/2005
PARTIES:	APPELLANTS KO & KP RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	049006
HEARING DATES:	16/04/2004
SUBMISSIONS CLOSED:	04/16/2004
DATE OF DECISION:	06/03/2004
DECISION UNDER APPEAL:	KO & anor -v- Commissioner of Police, New South Wales Police [2004] NSWADT 3
BEFORE:	O'Connor K - DCJ (President); Needham J - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	evidence - exclusion of - procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033108 & 033109
DATE OF DECISION UNDER APPEAL:	01/12/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Police Regulation 2000 Police Service Act 1990 Privacy and Personal Information Protection Act 1998
CASES CITED:	Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 GA and ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18 KO & Anor v Commissioner of Police, NSW Police Service [2004] NSWADT 3 Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18
REPRESENTATION:	APPELLANTS KP, agent RESPONDENT M Buchanan, solicitor Office of the Privacy Commissioner: L Blamey, legal officer
ORDERS:	1. Appeal allowed; 2. Decision under appeal set aside; 3. Application remitted to the Tribunal as originally constituted.

1 This appeal arises under the Privacy and Personal Information Protection Act 1998 (the Privacy Act). KO and his father KP, the appellants, applied to the Tribunal pursuant to s 55 for external review of the conduct of the respondent agency, the NSW Police Service. (Two applications for review were joined and dealt with in the one proceedings.)

2 The Tribunal dismissed the applications on the basis that the disclosure of personal information in issue fell outside the scope of the Privacy Act as the information was not ‘personal information’ within the meaning of the Privacy Act by virtue of an exclusion found at s 4(3)(h): see KO & Anor v Commissioner of Police, NSW Police Service [2004] NSWADT 3.

3 The Information Protection Principle (IPP) relating to disclosure of personal information is found in s 18 of the Privacy Act. It provides in essence that personal information may only be disclosed with the express consent of the individual to whom it relates in certain circumstances. The agency position is that compliance with this IPP does not need to be considered as the information disclosed does not fall within the statutory meaning of ‘personal information’. ‘Personal information’ (see s 4(1)) does not include (see s 4(3)):

‘(h) information about an individual arising out of a complaint made under Part 8A of the Police Service Act 1990 .’

4 This case concerns a police officer’s disclosure of personal information about KO which occurred in the course of the investigation of a complaint of police misconduct made by KO. When the disclosure came to his attention, KP applied on his son’s behalf to the agency pursuant to s 53 of the Privacy Act for internal review of the conduct. In the letter of application dated 7 February 2003), asserting:

‘The investigating officer in charge of the above complaint, Inspector Stephen Oswald, breached the Act in or about August 2002 by unlawful disclosure of personal information about [KO] to his employer [named]. I did not become aware of the breaches until 4 September 2002. As a result of Inspector Oswald’s breaches, [KO] lost his job and now seeks accountability and compensation.’

5 There was no direct evidence before the Tribunal as to what Inspector Oswald said to the employer. The Tribunal would appear to have proceeded on the basis of the account given as to that matter in the report of the internal review of the conduct made following KP’s application, which had attached to it a statement from the employer. That report was prepared by the Co-ordinator, Privacy, NSW Police, Marilyn Hamilton. The report refers to KO as the applicant.

‘On 18 August 2002 Inspector Oswald interviewed [the father, KP]. In a signed 8 page statement, [KP] stated that at the time of the applicant’s arrest, the applicant [i.e. KO] was employed as a ‘supervising electrical mechanic and site supervisor for [name of employer company], who are responsible for electrical installations. He further stated that on the 30 May 2002 applicant was working for [the employer company] at the [site named] where he was supervising the daily activities of about 6 to 10 employees. He further stated that his son was employed full time by this company.

As a result of this information, Inspector Oswald made contact with Mr [XY], Managing Director of [employer company], to confirm the details concerning the applicant’s whereabouts and employment status on the day of his arrest. Mr [XY] informed Inspector Oswald that the applicant was not employed by [the company] as an electrical mechanic and in fact was a casual trades assistant. He indicated that the applicant was not employed in any form of supervisory role.

Mr [XY] indicated to Inspector Oswald that to the best of his knowledge the applicant, according to the applicant’s completed time sheet for the 30 May 2002, the applicant was on site at [site named] between the hours of 8am and 4pm. The applicant was responsible for the maintenance and submission of his own time sheets. On the 21st August Mr [XY] made a signed statement in relation to these matters.

Inspector Oswald’s enquiries with Mr [XY] were limited to the applicant’s work hours and type of employment. Due to the conflict between the information already known to police, Inspector Oswald informed the applicant’s employer of the fact that the time sheets recording his hours of work were in conflict with the actions of the applicant on the day.’

6 KP, the father, conducted the appeal. He provided detailed written submissions, and made detailed oral submissions at hearing. Some of his submissions sought to traverse findings as to facts. The right of appeal is restricted to questions of law unless the Appeal Panel gives leave to extend the appeal to the merits: see Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 113. Appeal Panels have usually followed the course of requiring appellants to show an error of law sufficient to warrant interfering with the decision below before allowing any extension to the facts.

7 KP’s objections to the Tribunal’s decision raised three possible errors of law: (i) that the Tribunal had erred in finding that the investigation was conducted pursuant to Part 8A of the Police Service Act 1990 (the Police Act); (ii) alternatively, if the investigation was conducted pursuant to Part 8A, the Tribunal erred in failing to restrict the meaning of the words ‘information about an individual arising out of a complaint’ to information contained in the complaint itself; and (iii) that the Tribunal had failed to accord procedural fairness by not having ensured that Inspector Oswald and the employer gave evidence in the proceedings as to the disclosure, and were available to be cross-examined. Our conclusion is that the first two points fail, but the third succeeds. We will begin by dealing with the first two points.

Was this a Part 8A Investigation?

8 KP’s contention essentially is that the Tribunal failed to consider the whole of the legislative scheme under which there are systems for complaint handling other than by way of Part 8A. His contention is that had the Tribunal considered the whole of the scheme it would have found that this was not a Part 8A investigation.

9 Part 8A of the Police Act begins with s 122 which provides:

‘ 122 Application of Part to certain complaints

(1) This Part applies to and in respect of a complaint that alleges or indicates one or more of the following:

(a) conduct of a police officer that constitutes an offence,

(b) conduct of a police officer that constitutes corrupt conduct (including, but not limited to, corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988),

(c) conduct of a police officer that constitutes unlawful conduct (not being an offence or corrupt conduct),

(d) conduct of a police officer that, although not unlawful:

(i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or

(ii) arises, wholly or in part, from improper motives, or

(iii) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or

(iv) arises, wholly or in part, from a mistake of law or fact, or

(v) is conduct of a kind for which reasons should have (but have not) been given,

(e) conduct of a police officer that is engaged in in accordance with a law or established practice, being a law or practice that is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its effect.

(2) This Part does not apply to or in respect of a complaint of a kind that (in accordance with guidelines agreed between the Police Integrity Commission and the Ombudsman after consultation with the Commissioner) need not be dealt with in accordance with this Part.’

10 The right to make a complaint is conferred by s 126 in these terms:

‘ 126 Right to make complaint

(1) Any person may make a complaint about the conduct of a police officer.

(2) This Part does not affect any other right of a person to complain about the conduct of a police officer.’

11 The procedure for making a complaint is found in s 127:

‘ 127 Making of complaints

(1) How made

A complaint must be made in writing to an investigating authority.

(2) It is made to the Commissioner if:

(a) it is delivered to a police officer personally, or

(b) it is received by a member of NSW Police by post, facsimile or electronic mail, or

(c) it is addressed to the Commissioner and lodged at a Local Court, or

(d) it is referred to the Commissioner by the Minister, by the Independent Commission Against Corruption or by the New South Wales Crime Commission.

(3) It is made to the Police Integrity Commission if:

(a) it is lodged or received at the office of the Commission, or

(b) it is received at the office of the Commission by post, facsimile or electronic mail, or

(c) it is addressed to the Commission and lodged at a Local Court, or

(d) it is referred to the Commission by the Minister, by the Independent Commission Against Corruption or by the New South Wales Crime Commission.

(4) It is made to the Ombudsman if:

(a) it is lodged or received at the office of the Ombudsman, or

(b) it is received at the office of the Ombudsman by post, facsimile or electronic mail, or

(c) it is addressed to the Ombudsman and lodged at a Local Court, or

(d) it is referred to the Ombudsman by the Minister, by the Independent Commission Against Corruption or by the New South Wales Crime Commission.

(5) Exception circumstances where unwritten complaint acceptable

The Police Integrity Commission or the Ombudsman:

(a) may, in exceptional circumstances, accept a complaint that is not in writing, and

(b) in that event, must reduce the complaint to writing as soon as practicable.

(6) Anonymous complaints

It is not necessary for the complainant to be identified in a complaint.

(7) MP may act for complainant

A complaint may, with the written consent of the complainant, be made on the complainant’s behalf by a member of Parliament.

(8) Complaints by prisoners

If a prisoner informs a prison officer that the prisoner wishes to make a complaint, the prison officer:

(a) must take all steps necessary to facilitate the making of the complaint, and

(b) must send immediately to the addressee, unopened, any written matter addressed to a police officer (whether by name or by reference to an office held by the officer), to the Police Integrity Commission or to the Ombudsman.

In this subsection, prisoner means any person in lawful detention or custody, and prison officer means any person by whom the prisoner is detained, or in whose custody the prisoner is, or who is in charge of the prisoner.’

12 On the face of it, it would appear that the complaint made by KO on 30 May 2002 to the officer at the Penrith Police Station, and recorded in writing by the officer, was a complaint to the Commissioner in writing covered by s 127(2)(a). The Commissioner is an investigating authority (see s 121, definitions). The Act contemplates the establishment of a Complaints Information System (see Division 3 of Part 8A), ss 128-129. The Commissioner is required to register all complaints in the complaints information system. It is clear from the material filed that procedures of this kind were followed in relation to KO’s complaint. The Police Act deals at ss 139 and following (Division 5 of Part 8A) with investigations by the Commissioner.

13 KP submitted that the complaint was of the kind referred to in cl 20 of the Police Regulation 2000, and fell outside Part 8A. Clause 20 provides:

‘ 20 Police officer to report misconduct

(1) If:

(a) an allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or

(b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind,

the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report).

(2) This clause does not apply to conduct or alleged conduct:

(a) that has been made the subject of a complaint under Part 8A of the Act, or

(b) that has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings, or

(c) that has already been reported under this clause to a senior police officer.

(3) A senior police officer to whom conduct (or alleged conduct) by a police officer is reported is required to report it promptly to the Commissioner or a police officer nominated by the Commissioner if the senior police officer believes that the conduct (or alleged conduct):

(a) constitutes (or would constitute) a criminal offence, or

(b) could provide sufficient grounds:

(i) for taking section 73 dismissal action, or

(ii) for making a reviewable section 173 order or a section 181D order.’

14 KP’s contention is that here there was a complaint of the type that is referred to in cl 20(1)(a). The first words of para (a) are met: there is here an ‘allegation’ that has been ‘made to a police officer that another police officer has engaged in conduct’.

15 But the requirement which follows was not, on the evidence before the primary Tribunal, met.

16 There is no evidence that the receiving officer formed any ‘opinion’ that the allegation ‘constitutes a criminal offence or other misconduct’. The evidence indicates that the officer and the local area command simply dealt with the matter in accordance with normal procedures.

17 The Commissioner oversees two complaints systems - the Part 8A system which ordinarily is activated by a complaint from outside the Police Force, and the system now being discussed, ordinarily activated by a complaint from within the Police where the referring officer has formed an opinion that an offence or misconduct is revealed.

18 This case clearly involved a complaint of the kind to which the Part 8A mechanism is addressed.

‘Arising out of’

19 As to the meaning of the expression ‘arising out of’, KP argued at the appeal that it bore a narrower meaning than that given to it by the Tribunal.

20 The Tribunal said:

‘15 By the operation of section 4(3)(h) of the Privacy Act, "personal information" within the meaning of the definition in section 4 of that Act does not include any information about an individual arising out of a complaint made under Part 8A of the Police Act 1990.

16 This is a very wide exemption from the Act in favour of the respondent. When it applies, it removes the information concerned from the operation of the entire Act. It was plainly intended by the New South Wales Parliament to accord great flexibility to the NSW police when dealing with what is known as “Part 8A investigations”. The Privacy Commissioner submitted that the correct meaning of section 4(3)(h) of the Act was the exemption related to information that was created or revealed as a result of a lawful investigative process. It was said that it did not apply to information that was linked in some indeterminate way with the investigation. I agree. Information that bears a tenuous relationship to an investigation is unlikely to fall within the exemption. In the present case, I consider that the personal information concerning the applicant son and his relationship with the police and his employer on the relevant day was all plainly information arising out of the police misconduct complaint made by the applicant and his father on 30 May 2003. I see no reason why the Part 8A investigation and exemption cannot cover information revealed by an officer conducting an investigation and communicated in the course of the investigation.’

21 The exclusion in issue, (h), is one of several. It is useful to set out the complete list of exclusions from the meaning of ‘personal information’.

‘(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual that is contained in a publicly available publication,

(c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act,

(d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,

(e) information about an individual that is contained in a protected disclosure within the meaning of the Protected Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a protected disclosure,

(f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997,

(g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry,

(h) information about an individual arising out of a complaint made under Part 8A of the Police Service Act 1990,

(i) information about an individual that is contained in a document of a kind referred to in clause 1 or 2 of Schedule 1 (restricted documents) to the Freedom of Information Act 1989 (ie Cabinet documents or Executive Council documents),

(j) information or an opinion about an individual’s suitability for appointment or employment as a public sector official,

(ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000,

(k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.’

22 The question that the Tribunal is required to ask is whether the information is ‘information arising out of a complaint made under Part 8A’. A strict approach to those words might confine them to the contents of the complaint itself. The point is important because the evidence that we do have indicates that Inspector Oswald’s enquiries of the employer originated from what the father said to him about his son’s employment. They did not originate from the contents of the complaint made by the son, though quite similar information is to be found in that complaint (in the section where the son complains about the police preventing him from using his mobile phone, and where he states that he needed to make calls in connection with his employment).

23 A wider approach would incorporate information going beyond the contents of the complaint to other material gathered in the course of the investigation.

24 The Tribunal’s reasoning process did not involve any process of construction of the words of the provision. The Tribunal simply stated that is was a ‘wide’ exemption. It noted that the Privacy Commissioner in his submissions had given the words a broad meaning – the exemption related to information that was created or revealed as a result of a lawful investigative process. As noted, the Tribunal stated that the expression was subject to some limitation. The Tribunal then referred to the regulatory scheme affecting Part 8A complaints. It accepted the Police submission that the Parliamentary intent was to leave Part 8A free of the Privacy Act, concluding: ‘The scheme of the Part 8A exemption is plainly to free up the respondent to conduct police misconduct inquires [sic: inquiries] under the scheme of the Police Act and to do so without any of the strictures of the Privacy Act applying.’ (at [17])

25 It will be seen that across the exclusions different formulations are used. The formulation ‘information about an individual arising out of’ [our emphasis] is used in (d), (f), (g) and (h). On the other hand the formulation ‘information about an individual that is contained in’ [a document or the like] is used in (b), (e) and (i). It can be seen that the expression ‘arising out of’ is looser than ‘contained in’.

26 KP made the point that the Privacy Act could have used the expression ‘arising out of a complaint or the investigation of a complaint’. He noted in particular exclusion (f) which speaks of information ‘arising out of, or in connection with, an authorised operation’. In this instance a process is directly referred to and not an underlying document. On the other hand, he noted, exclusion (d) was an example, like exclusion (f), of an underlying document being the subject matter, there referring to information ‘arising out of a warrant’.

27 While we regard KP’s arguments as having some force, our conclusion, ultimately, is the same as that of the Tribunal.

28 The phrase ‘arising out of’ is an ordinary expression. It does not have any special meaning. The Macquarie Dictionary (3rd ed 1997) defines the verb ‘arise’ as: ‘1. to come into being; to originate; appear …’. At point 4 the Dictionary refers to the expression ‘arise from’: ‘4…. to result or proceed from.’

29 As these are words with an ordinary meaning (and there is no indication in the statute that they should be given a strained meaning, either to narrow their ambit or to widen it), they should be given their ordinary meaning.

30 As we see it, what is required to be shown is that the information in issue has ‘resulted’, ‘proceeded’ or ‘originated’ from a complaint made under Part 8A.

31 While care must be shown in having regard to cases interpreting the words ‘arising out of’ in other and quite remote statutory contexts, the courts have given a wide meaning to the phrase ‘arising out of a contract’ or ‘arising out of an agreement’. They did not limit the matters caught by the phrase to, for example, the contents of the agreement, but saw the expression ‘arising out of’ as catching events that occurred in execution of the contract or agreement: see cases cited at Stroud’s Judicial Dictionary of Words and Phrases (6th ed 2000).

32 In our view there must be some boundary to what can be said to be information ‘arising out of’ a Part 8A investigation. It is difficult precisely to describe it. We agree in general terms that these words can not protect a Part 8A investigation from all collections, uses or disclosures of personal information that might occur during its course. So we agree with the Tribunal that the exclusion would not protect information that had an ‘indeterminate’ or ‘tenuous’ relationship - and, a fortiori, no relationship at all - with the investigation.

33 We note that this issue has been considered, and resolved in similar terms, by a differently constituted Appeal Panel (the presiding member being Hennessy DP, and the other members being the same two members who make up this Panel) in the case of GA and ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [45]-[49].

34 The following passages from the decision in GA are relevant:

‘50. … It follows that an investigation carried out under Part 8A results or proceeds from the complaint at least in a general sense. Accordingly, information collected, used or disclosed during an investigation into a complaint may, depending on its nature, arise out of that complaint. In coming to that conclusion we have rejected the appellants’ submission that the legislature did not intend to exempt the PPIP Act from the investigation process because exemptions relating to law enforcement and investigative agencies are provided for in s 23 and s 24 respectively. Legislative provisions are to be interpreted in accordance with the purpose or object of the legislation as a whole, not in accordance with, or by reference to, particular provisions. …

52 The appellants’ alternative submission, as we understand it, was that information arising out of the complaint does not include information that is unrelated to the subject matter of the complaint. …

53 … The crux of their submission was that the extra information was, at best, gratuitous. After answering each of the questions posed in Chief Inspector Donovan’s letter, the letter went on to say: …

55 … However, given the purpose of the legislation and the exception in s 4(3)(h), we consider that the phrase should be interpreted narrowly, but still in accordance with its ordinary meaning. Consequently, the exception will only apply to information which results or proceeds from a complaint and is relevant to that complaint. A broader interpretation would enable gratuitous information, such as some of the background information provided by the Principal, to be exempt from the provisions of the PPIP Act.’

35 The evidence before the Tribunal clearly had shortcomings.

36 What is clear is that on 30 May 2002 KO made a complaint alleging police misconduct. The complaint related to his arrest that day at Richmond Railway Station and his subsequent detention in custody and questioning at Penrith Police Station. After being held for about 2 hours, he was charged with two railway offences and released. At around mid-day the police were on duty at the railway station checking tickets. KO and a friend had alighted from a train. KO did not immediately produce his ticket (he had one), but instead questioned the police’s right to ask to see it, and questioned their right to ask for his name and address. Ultimately the charge as to refusing to give name and address was dismissed. He was convicted of an offence relating to smoking on railway premises, and fined $100. KO made a complaint before he left the police station over his treatment. Subsequently it was allocated for investigation to Inspector Oswald of the Hawkesbury LAC. In the course of his investigation he obtained a statement from KO’s father, KP. That occurred on 18 August 2002. As noted earlier, that statement caused Inspector Oswald to approach KO’s employer. The employer was made aware of the events of 30 May 2002. KP and KO have complained that the disclosure of personal information about KO that occurred on that occasion contravened the Privacy Act. Further, as noted earlier, they claim that the disclosure led to KO losing his job, and that KO should be compensated by way of damages.

37 The Tribunal has a duty to satisfy itself as to the ‘conduct’ which is the subject of the application for review.

38 At appeal KP said that he had raised at the Tribunal hearing his expectation that Inspector Oswald would give evidence and that the employer would give evidence. He said that he thought there had been a direction to that effect given at the planning meeting that had been convened soon after his application for review by the Tribunal had been filed. The CD recording of the hearing confirms that he did raise the matter – Track 3 at the point 8:30.

39 At hearing the Tribunal said in reply that it could not recall whether the matter had been raised at the planning meeting, as he asserted. The Tribunal did not, it would appear, recognise the substantial point of the objection, which was that he wished to hear and test the evidence of Inspector Oswald and the employer as to what precisely occurred.

40 This kind of request will often be made in Privacy Act cases where there is a disclosure issue. The aggrieved applicant will commonly have imperfect knowledge of the precise content of the alleged unlawful disclosure. The occurrence of the alleged disclosure will have come to their attention, normally, by reason of some action that has resulted from the alleged disclosure.

41 In this case it was suspected, reasonably, that KO’s sacking was connected with what Inspector Oswald had told the employer. When they raised the matter with the agency pursuant to s 53 of the Privacy Act, KO and KP were not in a position to do any more than identify what the conduct is that they believe occurred; and give some credible basis for their belief, were it doubted. It was up to the agency then to investigate. Unless there is no dispute with the findings of the internal review, an agency acting responsibly would, we consider, produce to the Tribunal, at least by the time of a hearing, direct evidence on the conduct in issue from relevant officers. The agency did not do this in this case. Its position was that it was up to the applicant to subpoena the evidence.

42 While the Tribunal did not substantively consider KP’s objection, it did, in the course of the closing submissions, acknowledge the difficulty which faced it as a result of not having direct evidence from Inspector Oswald. The Tribunal alluded to its limited ability to make findings as to what occurred in the absence of direct evidence.

43 That circumstance, we consider, was not the fault of the applicant. An applicant should not, in this class of proceeding, be called on to repair the omission of the agency in not disclosing precisely the nature of the conduct.

44 The agency and ultimately the Tribunal had to ensure, we consider, that the relevant evidence was provided.

45 The unsatisfactoriness of the situation that developed is reflected in the Tribunal’s statement in the course of closing submissions that all it could infer from the material before it (the statement of the employer, and the contents of the internal review report) was that ‘something’ was disclosed but its exact contents could not be inferred.

46 The matters recounted provide the background to the following elliptical statements that appear in the reasons for decision [the emphasis is ours]:

‘9 As a result of this information, the Detective Inspector then went to the applicant son's employer and spoke to Mr Andrew Nichols about the applicant son. Precisely why this was necessary is not clear to me. Evidence was not given from Inspector Oswald and Mr Nichols was not called to give evidence or be cross-examined. The internal review document asserts that the reason for the visit to the employer was to confirm the details concerning the applicant's whereabouts and his employment status on the day of his arrest. The former issue I would consider to be wholly irrelevant to any investigation of a complaint. However, investigation of the employment status of the applicant son on a day of his arrest would plainly be relevant in the circumstances of the police misconduct complaint.

10 The respondent’s legal representative at the hearing also submitted that the applicants’ complaints could have led to a civil or criminal suit for unlawful imprisonment and to a claim for damages and these issues should have been investigated. Further, it was submitted that the “veracity” of the applicants’ statements should have been checked by the investigators.

11 Whatever the reason for it occurring, and whatever was said between the Inspector and the employer on 21 August 2002 when that interview occurred, I consider it was lawful and not inappropriate in the circumstances for the police to at least attend and make some inquiries of the employer in the course of their investigation especially given the statements of the applicants noted above.’

47 The statements ‘noted above’ were these:

‘7. …. In that statement [the statement of 18 August 2002] the applicant father set out in very great detail the events of 30 May 2002. At one point in the interview, the applicant father said that he intended to seek compensation for loss of wages and for expenses for the day. Also at the interview, he stated that he drove his son to work after the arrest incident and all the workers have gone home as it was 3.50 pm. He said that his son was employed by a building company working at the Hawkesbury University site as a "supervising electrical mechanic" where he was the on-site supervisor, supervising the daily activities of about 6 to 10 employees and that he is employed on a full-time basis.

8 In the statement by the applicant son to the respondent resulting from the complaint, he said to his arresting officers at one point while in the police station on 30 May 2002 that he needed his mobile phone in his cell as he was the supervisor of a $7 million contract and he must keep in contact with people on-site.’

48 Later in its reasons the Tribunal said (as previously noted) at [16]:

‘The Privacy Commissioner submitted that the correct meaning of section 4(3)(h) of the Act was the exemption related to information that was created or revealed as a result of a lawful investigative process. It was said that it did not apply to information that was linked in some indeterminate way with the investigation. I agree. Information that bears a tenuous relationship to an investigation is unlikely to fall within the exemption. ’

49 KP was a self-represented person. The Tribunal has the following responsibilities, relevant to this case, under s 73 of the Tribunal Act:

‘(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

….

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings…’.

50 At the appeal, the agency again contended that had KP had concerns about the non-appearance of Inspector Oswald and Mr [XY] at the hearing, he could on the day have applied for an adjournment and sought to have issued subpoenas requiring their attendance.

51 We do not agree that this is where the matter ends. Ultimately the Tribunal must ensure that ‘all relevant material’ was disclosed to it to determine all of the relevant facts in issue in any proceedings.

52 How the Tribunal carries out that responsibility will vary as between cases and categories of business in the Tribunal. In civil claims (as occur in the Equal Opportunity Division and the Retail Leases Division) the Tribunal would ordinarily leave it substantially to the applicant to define the scope of the claim and to produce relevant evidence. Even in this class of case, there may be circumstances where it might become appropriate for the Tribunal to exercise its powers to summons evidence.

53 In the passages quoted above, the Tribunal in effect acknowledged that it did not have all the relevant facts. Applicants, and in particular self-represented applicants, in a case of this kind are in a very disadvantaged position when it comes to producing the relevant facts for the reasons we have already given (they will often have an imperfect awareness of what has happened in relation to the handling of their personal information within the walls of government administration).

54 The Tribunal’s position appears to have been that provided there was a justification for the contact with the employer that could be linked reasonably to the complaint and its proper investigation then any further justification that was ill-founded became irrelevant, as did the question of the lawfulness of the disclosure of any information that depended on an ill-founded justification. We have difficulty with this approach.

55 These uncertainties would have been avoided, had the Tribunal ensured that the evidence before it was in a better state. The file reveals: directions 20 May 2003, requiring applicants to give Tribunal and agency primary contentions with arguments in support on jurisdiction and liability and affidavits by 17 June 2003; agency to do likewise by no time specified. The applicant filed close to time, 19 June 2003. The agency filed nothing prior to date listed for hearing. This was unsatisfactory. The reference to ‘affidavits’ in the directions provides some indication that the Tribunal had expected evidence to be put on.

56 The hearing proceeded on 1 August 2003. On that day the exhibits comprised: authorisation from KO to have KP represent him; the statement of complaint made by KO on 30 May 2002; statement by Constable McClifty made on 31 May 2002 as to his conduct as an arresting officer in respect of KO; the NSW Police Service internal review report responding to the complaint under the Privacy Act dated 1 May 2003 given to the Tribunal on 9 May 2003, and therefore, it can reasonably be assumed, before the Tribunal at its original planning meeting. That report attached KP’s letter of 7 February 2003 applying to the agency for review; the statement made by KP on 18 August 2002; a written statement made by the employer on 21 August 2002 and witnessed by Inspector Oswald. The file records that at the conclusion of hearing on 1 August 2002, the Tribunal gave directions that the agency file and serve s 41 Privacy Act Direction within 7 days, Privacy Commissioner to file and serve submissions within 7 days, applicants to file and serve any further submissions within 21 days. There was no filing of any material by the agency. The Privacy Commissioner filed submissions on 19 August 2003, and the applicants did so on 28 August 2003. The decision was delivered in January 2004.

57 There is no indication in the reasons or the notes on the Tribunal file that KP or KO consented to a form of proceeding in which the only evidence of what Inspector Oswald said on the day was that recounted by Ms Hamilton, the agency privacy officer, in her internal review determination.

58 It is clear from the submissions made by KP on 28 August 2003 that he challenged key submissions made by the Privacy Commissioner (ones that were adopted by the Tribunal), and that his point was that Inspector Oswald basically exceeded his brief in deciding to contact the employer. This is consistent with the position put by KP in his submissions filed on 19 June 2003 prior to the hearing.

59 The present jurisdiction relates to the conduct of public sector agencies. As noted earlier, the applicant may have a general awareness of the occurrence of conduct that is, on its face, governed by the Privacy Act; and the applicant may not be in a position to identify precisely the details of the conduct. In these circumstances, the Tribunal should play a more active role to ensure that all the relevant facts are before it. In a case of the present kind, relating to suspected disclosure of personal information about an individual as between an agency officer and a third person, if the agency does not willingly supply a statement or affidavit from the officer, the Tribunal should give a direction to that effect.

60 In our view the proceedings miscarried. There was a denial of procedural fairness to the applicants. In the absence of a firm agreement by the applicants to the course of the proceeding only by reference to the contents of the internal review, the Tribunal should have ascertained precisely what was the conduct that occurred on the relevant occasion, i.e. the phone call that Inspector Oswald made to the employer on 21 August, and whether and what further interchanges may have occurred between Inspector Oswald and the employer.

Does this Matter?

61 Not every denial of procedural fairness requires that there be a fresh hearing. In Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 Ipp JA observed:

‘111 The headnote to Stead v State Government Insurance Commission (1986) 161 CLR 141 accurately states the propositions laid down by the High Court in that case. It states:
Not every departure from the rules of natural justice at a trial will entitled the aggrieved party to a new trial. But where there has been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference to the outcome than where the denial related to the opportunity of making submissions on a question of law. All that an appellant needs to show is that the denial of natural justice deprived him of the possibility of a successful outcome. To negate that possibility it is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result.’

62 The only possible basis upon which, in our view, it could be argued that this is a case where a ‘properly conducted’ hearing could not possibly have produced a different result is if the exclusion conferred by s 4(3)(h) is a blanket exclusion, i.e. once a Part 8A investigation has been commenced, anything that occurs in the context of that investigation by way of the collection, use or disclosure of personal information is completely unaffected by the Privacy Act. In our reasons above, like the Tribunal we have adopted a construction of s 4(3)(h) more flexible than was suggested by KP but not going so far as to confer a blanket exclusion. Moreover, there was no cross-appeal by the agency in relation to this aspect of the Tribunal’s reasoning.

63 In the present case, it is true that KO made references in the statement to his employment (one of his complaints was that as a result of being dispossessed of his mobile phone before being placed in a cell he had been prevented from keeping in touch with his workers). It is also true that KP made references to his son’s employment – and that both statements clearly exaggerated the importance of KO’s work, as compared to what the employer later said. But there remained a question as to what precisely the matter of his employment had to do with the allegations of misconduct made against the police, in relation to their conduct especially at the Police Station.

64 As we have already noted the Tribunal at para [9] found, on the limited evidence before it, that there was no justification for contacting the employer to check whether KO had been at work on the day of the arrest. The Tribunal made the (guarded) statement in para [11] that some of the contact with the employer was lawful. This statement infers that it considered some of the contact to be unlawful.

65 In these circumstances procedural fairness requires that the conduct be properly identified, and findings as to contravention be entered on the basis of the conduct identified. The Tribunal’s decision should be set aside, and the application remitted for a fresh determination.

66 The Section 27 Exemption: KP also raised in his appeal the question of the proper construction of s 27. The Tribunal did not deliver a final opinion on this issue, as that was not necessary for its decision. Section 27 is relevant because, arguably, it provides an immunity to conduct which is not protected by the s 4(3)(h) exclusion. If that view is correct then it does not really matter whether or not s 4(3)(h) applies to a case of this kind.

67 By s 27 various criminal justice agencies including the present agency are exempted from compliance with the Information Protection Principles except in relation to its ‘administrative’ and ‘educative’ functions.

68 The Tribunal made provisional observations supportive of this view. Although this issue was not fully argued before us, we should indicate our doubts as to the Tribunal’s provisional view.

69 On the face of it, the examination by an employer of complaints of misconduct against staff is connected with the ‘administrative’ functions of an employer qua employer. An internal investigation may convert at some stage to a criminal investigation, thereby bringing the investigation within the protection afforded by s 27; but the present case never became a criminal investigation. Little turns, in our view, on a matter to which the Tribunal gave some emphasis – the presence of oversight mechanisms in relation to the agency’s conduct of investigations into complaints of misconduct by officers from members of the public. While these oversight mechanisms are elaborate, they are not unique. All public sector agencies are subject to oversight by bodies such as the Ombudsman and the Independent Commission Against Corruption in relation to the probity and adequacy of internal investigations into public complaints against staff.

Remittal to Differently Constituted Tribunal

70 The applicants’ application for leave to extend to the merits is refused.

71 In cases where a Tribunal decision is set aside or varied, the normal course is to remit the matter to the Tribunal as originally constituted. Where the successful appellant is a self-represented party, that circumstance may itself suggest that it would be better for the case to go back to a differently constituted Tribunal. The relevant principles were addressed in Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18. Here the problem lies with the lack of direct evidence from Inspector Oswald. The Tribunal was not, as we read the reasons, ill-disposed to the view that some boundary applies to the exclusion from the meaning of ‘personal information’ found in exception (h) in s 4(3). This is not a course where adverse findings or observations were made as to the reputation or credit of the appellant. On balance, our view it that it is appropriate for the application to be dealt with by the originally constituted Tribunal.

ORDER

1. Appeal allowed.

2. Decision under appeal set aside.

3. Application remitted to the Tribunal as originally constituted.

Amendments

9 May 2005 - word amended from 'without' to 'with' - paragraph 3