McLean v Racing Victoria

[2019] VSC 690

59 VR 422

McLEAN v RACING VICTORIA LTD and Another Supreme Court of VictoriaRichards J 25 September, 18 October 2019[2019] VSC 690Police — Search warrants — Warrant under Crimes Act 1958 — Syringes seized by police from licensed racehorse trainer — Information derived from things seized disclosed by police to Racing Victoria — Whether police owed duty of confidentiality regarding things seized — Whether limitation on use by police of information derived from seized things — Privacy and Data Protection Act 2014 (Vic) — Crimes Act 1958 (Vic), s 465.Police — Common law powers and duties — Confidential information obtained in criminal investigations.Human Rights — Privacy — Search warrant — Whether disclosure of information derived from seized thing lawful — Privacy and Data Protection Act 2014 (Vic), Information Privacy Principle 2.1(e) — Charter of Human Rights and Responsibilities (Vic), ss 13(a), 32.Words and Phrases — ‘Unlawful activity’, ‘dealt with according to law’.

Police executed a search warrant issued under s 465 of the Crimes Act 1958 (Vic) (CrimesAct) at the home of the plaintiff, a horse trainer licensed under the Racing Act 1958 (Vic) (Racing Act). Syringes were among the items seized.

Authorised forensic analysis was undertaken of two of the syringes. Both contained recombinant human erythropoietin (EPO) and one also contained equine deoxyribonucleic acid (DNA) matching that of a horse trained by the plaintiff. EPO was a scheduled substance under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), possession of which (without a prescription) was an offence. It was also a prohibited substance under the Rules of Racing.

In due course, police wrote to the first defendant, Racing Victoria, enclosing information about the syringes and the test results, noting that offences may have been committed against the Rules of Racing. The letter stated that the disclosure of information was made pursuant to the Privacy and Data Protections Act 2014 (Vic) (Privacy Act), Information Privacy Principle (IPP) 2.1. IPP 2.1(e) provided:

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—

• (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

Section 13 of the Charter of Human Rights and Responsibilities (Charter) provided that a person had the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

On the basis of the information provided by police, Racing Victoria’s stewards formed the view that there were reasonable grounds to suspect that the plaintiff had committed breaches of the Rules of Racing. The stewards asked the plaintiff to show cause why his licence should not be suspended pending the hearing and determination of those charges.

doi: 10.25291/VR/59-VR-42259 VR 423

The plaintiff brought an application for judicial review seeking orders restraining Racing Victoria from acting on the information received from the police.

Held, dismissing the application:

• (1)

  As with all coercive statutory powers, there was 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. The Act required police to take things seized under a search warrant issued under that section before the Magistrates’ Court ‘to be dealt with according to law’. This created a duty not to disclose seized things other than in accordance with a direction of the Magistrates’ Court. [10], [29]–[34], [39].

  By Richards J. The duty of confidentiality of material seized under a search warrant was not absolute. Rather, disclosure might be permitted by the relevant statute for some purposes and in some circumstances. [35].

• (2)

  In respect of information about, or derived from, things seized under a warrant during the execution of a search warrant under s 465 of the Crimes Act, or information derived from things seized under the warrant:

  • (a)

    No duty of confidentiality about derivative information was to be implied from s 465 of the Crimes Act. [10], [40]–[44].

    Johns v Australian Securities Commission (1993) 178 CLR 408, 423–5, 436, 458; Williams v Keelty (2001) 111 FCR 175; Australian Securities and Investments Commission v Rich (2005) 220 ALR 324; Pratten v Director of Public Prosecutions (Cth) (2013) 302 ALR 329 considered.Flori v Commissioner of Police (2014) 2 Qd R 497 distinguished.
  • (b)

    Both the common law and the Privacy Act limited the purposes for which the information could be used and disclosed. The information in question was ‘personal information’ for the purposes of the Privacy Act, and the police were obliged to handle the information in accordance with that Act. [10], [45]–[48].

    Marcel v Commissioner of Police of the Metropolis [1992] Ch 225, 235, 255; Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25, 29 considered.Director of Public Prosecutions v Zierk(2008) 184 A Crim R 582, 590[34], [36] explained.
• (3)

  The disclosure of the information by Victoria Police to Racing Victoria was lawful under the Privacy Act, as authorised by Information Privacy Principle 2.1(e).

  • (a)

    IPP 2.1(e) permitted disclosure by the police of the plaintiff’s personal information for the secondary purpose of informing a relevant regulator of evidence of concern about a licensed person where the police had reason to suspect that unlawful activity had been engaged in. [10], [59], [68]–[69].

  • (b)

    ‘Unlawful activity’ under IPP 2.1(e) was not confined to criminal activity. Even if it were confined, police had reasons to suspect criminal activity in this case. [63]–[67].

  By Richards J. While both the principle of legality and s 32 of the Charter would support a construction of ‘unlawful activity’ in IPP 2.1(e) that least interfered with personal privacy, such a choice was not open in this case. The right to privacy was not paramount: it might be limited by law, in a way

59 VR 424

• (3)

  that was proportionate to a legitimate aim. The Privacy Act expressed such a limit. [63]–[66].

  PJB v Melbourne Health (Patrick's Case)(2011) 39 VR 373, 395[85]; Victoria Police Toll Enforcement v Taha(2013) 49 VR 1, 66[198]–[199] referred to.

Application for judicial review

This was an application for judicial review seeking relief against the first and second defendants.

A T Broadfoot QC with P J Wheelahan for the plaintiff. J J Gleeson QC with A M Dinelli for the first defendant. O P Holdenson QC with E A Bennett for the second defendant. Reserved judgment.RICHARDS J 1Jarrod McLean is a licensed racehorse trainer with stables at Yangery, near Warrnambool, in Victoria. He is licensed by Racing Victoria Ltd, the authority that controls and supervises thoroughbred horse racing in Victoria. As the holder of a trainer’s licence, Mr McLean is subject to the Rules of Racing of Racing Victoria.12On 30 January 2019, police executed a search warrant at Mr McLean’s home in Yangery. The warrant was issued by a Magistrate under s 465 of the Crimes Act 1958 (Vic) (Crimes Act). Among the items seized by police during the search were six pre-set syringes labelled ‘Eprex 10000’. On the return of the warrant on 1 February 2019, another Magistrate authorised forensic analysis of the syringes by Victoria Police.3Victoria Police arranged for two of the syringes to be analysed, as part of its investigation of criminal offences of which Mr McLean was suspected.2 Recombinant human erythropoietin (known as EPO) was detected in both samples. One of the syringes was also found to contain equine DNA, which matched the DNA of a horse that was trained by Mr McLean.4EPO is a sch 4 poison under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), and it is an offence to possess it without a prescription.3 It is also a prohibited substance under the Rules of Racing.45On 20 August 2019, Victoria Police wrote to Racing Victoria, enclosing information about the syringes and their contents. The letter said that Victoria 1

Racing Act 1958 (Vic) s 5F(1(a).

2

The offences identified in the search warrant were obtaining financial advantage by deception, under s 82 of the Crimes Act, engaging in conduct that corrupts or would corrupt a betting outcome of event or event contingency, under s 195C of the Crimes Act, and use of corrupt conduct information for betting purposes, under s 195F of the Crimes Act.

3

Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 36B(2).

4

Rules of Racing of Racing Victoria, sch 1 – Prohibited Substance Lists & Exemptions/Thresholds, pt 1 – Substances Prohibited at All Times, div 1 – Prohibited List A, item 1.

59 VR 425Police was referring the information to Racing Victoria ‘as offences may have been committed against the Rules of Racing (Vic) involving licensed trainer Mr McLean’. The letter concluded:

The attached information is provided to Racing Victoria Stewards for assessment. The information provided is Law Enforcement Data and is disclosed under Information Privacy Principle (IPP) 2.1(1) under the Privacy and Data Protection Act 2014 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.

6Following receipt of this information, Racing Victoria’s Stewards notified Mr McLean that they had opened an inquiry and directed him to attend a hearing on 28 August 2019. The hearing commenced that morning, but was adjourned at Mr McLean’s request and is yet to be completed.7The Stewards formed the view, on the basis of the available evidence, that there were reasonable grounds to suspect that Mr McLean 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 Mr McLean 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, Mr McLean commenced this proceeding, in which he seeks orders restraining Racing Victoria from acting on the information received from Victoria Police.8Mr McLean’s application for interlocutory injunctions came before me in the Practice Court on 3 September 2019. On that day, Racing Victoria undertook not to lay the charges or rely on this information until the hearing and determination of the proceeding. The parties agreed to an expedited hearing, which took place on 25 September 2019.9The issues for determination in the proceeding were:

• (a)

  Was the material seized during the execution of the search warrants subject to a duty of confidentiality?

• (b)

  What were the permitted uses of the seized material?

• (c)

  Did the duty of confidentiality extend to information about or derived from the seized material?

• (d)

  Was the provision of information to Racing Victoria by Victoria Police unlawful?

• (e)

  What relief should be granted? In particular, should Racing Victoria be restrained from using the information?

10For the reasons that follow, I have concluded that:

• (a)

  There are limits on the use that may be made of material obtained as

59 VR 426

• (a)

  the result of the exercise of a coercive statutory power. Determining the permitted uses of the material, and the scope of the corresponding duty of confidentiality, requires close attention to the statute in question.

• (b)

  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. Those things must be taken before the Magistrates’ Court, ‘to be dealt with according to law’. Police may then deal with the things as directed by the Magistrate, and not otherwise. There is a corresponding duty not to disclose seized things other than in accordance with a direction of the Magistrates’ Court.

• (c)

  No duty of confidentiality is to be implied from s 465 of the Crimes Act 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 and Data Protection Act 2014 (Vic) (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.

• (d)

  The disclosure of the information by Victoria Police to Racing Victoria was lawful under the Privacy Act. It was authorised by Information Privacy Principle 2.1(e).

• (e)

  There is therefore no basis to grant any relief against Victoria Police or Racing Victoria.

11I will make orders dismissing the proceeding, and vacating the confidentiality orders I made at the commencement of the trial.

A duty of confidentiality?

12Mr McLean’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 was conferred, and not otherwise. He argued that an aspect of this limitation was a positive duty of confidentiality on the part of Victoria Police, in relation to both the items seized during the execution of the search warrant, and any information derived from them. His position was that the only use that could lawfully be made of information obtained as a result of a search warrant issued under s 465 of the Crimes Act was for the investigation and prosecution of indictable offences.13This argument was based on principles derived from the High Court’s decision in Johns v Australian Securities Commission.5 That case concerned transcripts of compulsory examinations of Mr Johns, conducted by the 5

(1993) 178 CLR 408 (Johns).

59 VR 427Australian Securities Commission (ASC) under pt 3 of the Australian Securities Commission Act 1989 (Cth) (ASC Act). The ASC provided the transcripts to the Tricontinental Royal Commission, and copies of the transcripts were tendered into evidence during public hearings of the Royal Commission. Information obtained from those transcripts was published in the media. Mr Johns challenged the lawfulness of the ASC’s decision to provide the transcripts to the Royal Commission, and sought orders restraining further publication by various media organisations.14The High Court, by majority,6 held that the ASC’s decision to release the transcripts to the Royal Commission was invalid, because Mr Johns had not been given an opportunity to be heard before the decision was made. Also by majority,7 the Court declined to restrain further publication by the media, because the information in the transcripts had already been published and was no longer confidential. In reaching these conclusions, the Court considered whether and on what basis the information in the transcripts was confidential, and in what circumstances it could be disclosed by the ASC.15Brennan J referred to English authority to the effect that ‘the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used’.8 His Honour continued:

A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence.9

This statutory duty of confidence means that it is ‘important to ascertain the purposes for which such information can legitimately be used or disclosed’.10 In the context of the ASC Act, those purposes were the performance of any of the functions of the ASC and any of the purposes specified in s 127 — ‘But for no other purpose’.11

16Dawson J and Gaudron J both agreed with Brennan J that the ASC was 6

Brennan, Dawson, Gaudron and McHugh JJ, Toohey J dissenting.

7

Brennan, Dawson and Toohey JJ. Gaudron and McHugh JJ would have remitted the question of whether the information had ceased to be confidential.

8

Johns(1993) 178 CLR 408, 423–4 (Brennan J), citing Marcel v Commission of Police of the Metropolis[1992] Ch 225, 234 and Morris v Director of the Serious Fraud Office [1993] Ch 372, 381.

9

Ibid 424.

10

Ibid.

11

Ibid 425.

59 VR 428obliged to treat information obtained by the use of its coercive powers as confidential information. They also agreed that this obligation, or duty, was not absolute, but was subject to the statutory power of disclosure in s 127 of the ASC Act.12 Because the purposes for which disclosure could be made were specified in s 127, it was not necessary to apply the ‘general rule that where a body has statutory powers to compel the provision of information to it, it should not disclose the information except for the purposes for which the powers were conferred’.1317Mr McLean also relied on a series of decisions involving search warrants issued under s 3E of the Crimes Act 1914 (Cth): Williams v Keelty,14 Australian Securities and Investments Commission v Rich,15 and Pratten v Director of Public Prosecutions (Commonwealth).1618In Williams v Keelty, the Australian Securities and Investments Commission (ASIC) had obtained search warrants authorising members of the Australian Federal Police (AFP) to search premises. The validity of the search warrants was challenged on numerous grounds, one of which was that the warrants were sought for the improper purpose of use in a related civil proceeding, other than the criminal proceedings contemplated by the application for the warrant. Hely J was not satisfied that ASIC sought the warrants for this ulterior purpose.17 In any event, neither ASIC nor the AFP could lawfully use documents seized under the warrants for a purpose foreign to which the seizure was authorised.18 There was no question in that case of unlawful use of confidential information. Indeed, ASIC proffered an undertaking not to use the documents or information in them for the purposes of the civil proceeding.19In ASIC v Rich, the AFP had executed several search warrants obtained by ASIC for the purposes of a criminal investigation into the collapse of One.Tel. Certain directors of One.Tel sought a ruling on the admissibility in civil proceedings of evidence acquired pursuant to the warrants. Austin J held that the evidence was admissible.20In relation to the alleged illegality of ASIC using the seized material in its civil investigation, his Honour accepted that the search warrant power was conferred for the purpose of obtaining evidential material relevant to the criminal offence specified in the warrant, and that investigating and facilitating proof of a civil contravention was no part of that purpose.19 However, it was consistent with the purpose of search and seizure provisions to allow the seized materials to be used in a single investigation of suspected criminal 12

Ibid 436 (Dawson J), 458 (Gaudron J). See also Toohey J at 455, 457 and McHugh J at 467–8.

13

Ibid 436 (Dawson J).

14

(2001) 111 FCR 175 (Hely J) (Williams v Keelty).

15

(2005) 220 ALR 324 (Austin J) (ASIC v Rich).

16

(2013) 302 ALR 329 (Rothman J) (Pratten).

17

Williams v Keelty(2001) 111 FCR 175, 229–30[253].

18

Ibid 224[233], 227[244].

19

ASIC v Rich(2005) 220 ALR 324, 373[248]–[249].

59 VR 429and civil contraventions arising from the same set of facts.2021There was a constraint on the use of the seized materials as evidence in civil proceedings, which was ‘an implied limitation emerging out of the structure and purposes of the search warrant legislation’, combined with the general proposition that a power is limited by the particular purpose for which it is conferred.21 The constraint was not absolute,22 and was overcome in that case by the consent of One.Tel’s liquidators to the use of documents owned by that company.22Pratten was a judicial review proceeding brought by Mr Pratten following his convictions for tax fraud, contrary to s 134.2 of the Criminal Code Act 1995 (Cth). At trial, the prosecution had relied on tax assessments that had been amended following provision by the AFP to the Australian Taxation Office (ATO) of documents obtained pursuant to a search warrant issued under s 3E of the Crimes Act 1914 (Cth). The documents were provided by the AFP to the ATO in response to a notice issued by the ATO under s 264 of the Income Tax Assessment Act 1936 (Cth). In the judicial review proceeding, Mr Pratten sought various remedies, including a declaration that the provision of these documents by the AFP to the ATO was unlawful.23Rothman J dismissed the proceeding. His Honour accepted that, on its face, the effect of s 3F(5) of the Crimes Act 1914 (Cth) was to limit the purpose for which things seized under a search warrant could be made available to another Commonwealth agency. It would be improper for documents to be provided for purposes other than those comprehended by the warrant, unless that conduct was otherwise authorised or required.23 In this case, the AFP was required to produce the documents in answer to the ATO’s s 264 notice. The two provisions had to be read together:

There are some tensions between the provisions of s 264 and the provisions of s 3F(5) of the Crimes Act. That tension may be overcome by construing the provisions of s 3F(5) of the Crimes Act in a manner which treated the provisions as one (and in the absence of any other the only one) basis upon which copies of documents can be provided by the executing officer. The provisions of s 264 of the Income Tax Assessment Act, and compliance with a notice under s 264, give an additional and supplementary power or requirement.24

24The next authority relied upon by Mr McLean was Flori v Commissioner of Police,25 an application to restrain the Commissioner from relying, in disciplinary proceedings against the applicant, on information derived from property seized pursuant to a warrant to search the applicant’s home. The search warrant had been issued under s 150(1)(a) of the Police Powers and 20

Ibid 378[270].

21

Ibid 386–7[305].

22

Ibid 387[306].

23

Pratten(2013) 302 ALR 329, 343[80]–[82].

24

Ibid 344[86]. See also Bond v Tuohy(1995) 56 FCR 92, discussed at Pratten(2013) 302 ALR 329, 345[88]–[90].

25

(2014) 2 Qd R 497 (Flori).

59 VR 430Responsibilities Act 2000 (Qld), for the purpose of investigating certain criminal offences. After referring to Johns, Grollo v McAuley,26 Williams v Keelty, and ASIC v Rich, Atkinson J concluded:

The material obtained pursuant to the compulsion of a search warrant may only be used for the statutory purpose for which the warrant was granted, that is to obtain evidence of the commission of an offence. The evidence seized pursuant to the warrant may be used in the investigation and prosecution of criminal offences to which the seized things relate but cannot be used as evidence in disciplinary proceedings against Sergeant Flori.27

Her Honour made a declaration to the effect that the Commissioner was not entitled to use the seized property, or information derived from it, in the disciplinary proceedings.28

25Neither Victoria Police nor Racing Victoria really disputed the general proposition that there are limits on the use that may be made of things or documents obtained as the result of the exercise of a coercive statutory power. Determining the permitted uses of that material, and the scope of the corresponding duty of confidentiality, requires close attention to the statute in question. Some statutes make express provision for the uses that may, and may not, be made of compulsorily acquired material. In each case, the uses that are permitted must be determined by reference to the text, context and purpose of the statutory provision that confers the power.

Permitted uses of the seized material

26In this case, the syringes were seized during the execution of a search warrant issued by a magistrate under s 465 of the Crimes Act. That section provides:

Issue of search warrant by magistrate

• (1)

  Any magistrate who is satisfied by the evidence on oath or by 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

26

(1995) 56 FCR 533, in which the Full Court of the Federal Court upheld the validity of search warrants directed to the appellants. In passing, Northrop and Ryan JJ observed that it was `extremely unlikely' that things seized under the warrants would be used in other proceedings `since they were obtained for a particular purpose and could not be used for any other purpose': at 550.

27

Flori(2014) 2 Qd R 497, 507[41].

28

The outcome in Flori is unlikely to be replicated in Victoria, where s 274 of the Victoria Police Act 2013 (Vic) expressly permits the use of things seized in relation to certain offences ‘in connection with an investigation into the conduct of a police officer under pt 7, 9 or 10’.

59 VR 431

• • (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.

• ...

• (2)

  Subject to this section the rules to be observed with regard to search warrants mentioned in the Magistrates’ Court Act 1989 shall extend and apply to warrants under this section.

  ...

27The rules referred to in s 465(2) are those in s 78 of the Magistrates’ Court Act 1989 (Vic). Section 78(1) provides that a search warrant authorises the person to whom it is directed:

• (b)

  if the warrant is to search for any thing—

  • (i)

    to break, enter and search any place or vehicle named or described in the warrant for any article, thing or material of any kind named or described in the warrant; and

  • (ii)

    to bring the article, thing or material before the Court so that the matter may be dealt with according to law; and

  • (iii)

    to arrest any person apparently having possession, custody or control of the article, thing or material.

This is reflected in the form prescribed for a search warrant by r 33 of the Magistrates’ Court (Criminal Procedure) Rules 2009 (Vic).

28Unlike the ASC Act considered in Johns, or the Crimes Act 1914 (Cth) as it applied in Williams v Keelty, ASIC v Rich and Pratten,29 the Crimes Act does not make express provision for the use or disclosure of things seized under a search warrant. Rather, it requires that the things seized will be brought before the Magistrates’ Court ‘to be dealt with according to law’.To be dealt with according to law 29Mr McLean submitted that ‘to be dealt with according to law’ meant no more than to be used only for the purpose of investigating and prosecuting the criminal offence in respect of which the search warrant was issued, and not otherwise. Victoria Police submitted that the phrase referred also to the common law powers and duties of police constables and to the Privacy Act.30In my view, neither submission was correct. The effect of the phrase is simply to require a police officer who executes a search warrant to take any thing seized under the warrant to the Magistrates’ Court. It is for the Magistrates’ Court, not the executing officer or Victoria Police generally, to determine what is to be done with the seized things. The things ‘are not as a 29

Section 3F(5) has since been repealed.

59 VR 432matter of law automatically on seizure available to the constable executing the warrant — nor to the prosecuting authorities’.3031Within the Crimes Act, s 465 appears in pt III, div 1, sub-div 31 – Search warrants for and seizure of things. Other sections in that sub-division make provision for what may be done with seized things — for example, accessing and copying data held on a computer seized under a warrant,31 or retaining a thing believed to be tainted property for the purposes of the Confiscation Act 1997 (Vic),32 or destroying documents containing libel.33 In each case, the provision requires a court order about how the seized thing is to be dealt with.32In contrast with the search and seizure provisions in pt 14, div 3 of the Victoria Police Act 2013 (Vic), the Crimes Act makes no provision for the retention and return of seized things. It is left to the Magistrates’ Court to make directions as to how things seized under a warrant are to be dealt with.3433In this case, directions were made on 1 February 2019 that all of the items seized be retained in the possession of police pending production at court if required, and directions were made for the analysis of some items, including the syringes. No complaint is made about these directions, and there is no suggestion that Victoria Police has not complied with them in relation to the syringes seized under the warrant.34I conclude that 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.Permitted disclosure 35For completeness, I have considered the submission made for Mr McLean that there was no equivalent of the ‘iniquity’ principle35 that would permit disclosure by police of material obtained under a search warrant. This broad submission was not supported by the authorities referred to above. Those authorities do not establish that the duty of confidentiality is absolute. Rather, they demonstrate that disclosure may be permitted by the relevant 30

Allitt v Sullivan[1988] VR 621, 626–7 (Murphy J); see also 638–9 (Brooking J).

31

Crimes Act (Vic) ss 465AA.

32

Crimes Act (Vic) ss 465A–465E.

33

Crimes Act (Vic) ss 469AA.

34

Magistrates’ Court Act 1989 (Vic) s 78(6).

35

A reference to the principle of equity that ‘there is no confidence as to the disclosure of an iniquity’: Gartside v Outram (1856) 26 LJ Ch (NS) 113, 114; Corrs Pavey Whiting & Byrne v Director of Customs(1987) 14 FCR 434, 453 (Gummow J).

59 VR 433statute for some purposes and in some circumstances.36In Johns, disclosure was permitted for any of the purposes specified in s 127 of the ASC Act. Those purposes included, in s 127(4)(b), where it would ‘enable or assist the government or an agency of a State or Territory to perform a function or exercise a power’. There was no difficulty in Johns with the purpose for which the transcripts had been disclosed.36 The problem was that the ASC had not given Mr Johns an opportunity to be heard before deciding to give the transcripts to the Royal Commission.37In each of Williams v Keelty, ASIC v Rich and Pratten, disclosure was permitted by s 3F(5) of the Crimes Act 1914 (Cth), which authorised the officer executing the search warrant 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’. In Pratten, disclosure was also required under s 264 of the Income Tax Assessment Act.38There was no consideration in Flori of whether there were circumstances in which the Commissioner was permitted to disclose material obtained pursuant to a search warrant. The issue did not arise in that case, which concerned the use to which the material could be put within the Queensland Police Service, rather than its disclosure to another person. Had there been a question of disclosure, reference might have been made to the common law powers of police, which are preserved by s 9 of the Police Powers and Responsibilities Act 2000 (Qld), and to the transfer of seized things that is permitted by ss 722 and 723 of that Act.39In the case of things seized under a search warrant issued under s 465 of the Crimes Act, disclosure to another person might be authorised by a magistrate if the magistrate considered that the disclosure would be ‘according to law’. While no such application was made in this case, there is no dispute here about the retention or analysis of the things seized under the warrant. What is in dispute is the disclosure by police of information about or derived from the seized things.

Did the duty extend to derived information?

40Victoria Police did not provide the syringes that were seized under the search warrant to Racing Victoria. Rather, it provided information about the syringes and their contents. The information provided included the statement of the police officer who found them in a bedside drawer in the main bedroom, together with a photograph of the syringes. It also included the reports of the analysis of their contents, and information published by the Therapeutic Goods Administration about Eprex 10000.41Mr McLean argued that the implied duty of confidentiality applied not only to things seized under a search warrant, but also to information about or 36

Johns(1993) 178 CLR 408, 426 (Brennan J), 435 (Dawson J), 455 (Toohey J), 459 (Gaudron J) and 469 (McHugh J).

59 VR 434derived from those things. He submitted that, in enacting s 465 of the Crimes Act, ‘the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property’.37 It followed, he argued, that information derived from the execution of a search warrant could not be disclosed by police for other purposes — in this case, to the racing industry regulator. For the prohibition to apply to what was seized but not to further information derived from it ‘would make no sense’ and would be ‘an absurd outcome’.42The difficulty with this proposition is that it was not supported by authority. Most of the authorities that support the implication of a duty of confidentiality concerned the use or disclosure of the thing acquired or seized by the exercise of a coercive power. Johns was concerned with the disclosure of transcripts of a compulsory examination conducted under the ASC Act. Each of Williams v Keelty, ASIC v Rich and Pratten was about the use or disclosure of documents seized under a search warrant.43Flori alone involved derived information — namely, data extracted by forensic analysis from computers seized pursuant to the search warrant. The fact that the declaration made in that case extended to derived information is not a solid basis for the proposition Mr McLean seeks to advance here. As noted, Flori concerned the use that could be made of that information within the Queensland Police Service, and not whether the Commissioner was permitted to disclose the information to anyone else. The reasoning in Flori is therefore not directly applicable in this case. Further, there is no discussion in the judgment as to whether or why the implied limitation extended to derived information. Finally, it appears that no submissions were made in Flori about whether disclosure of the information was permitted by the common law or by the Information Privacy Act 2009 (Qld).44I therefore do not accept that evidence of observations made during the execution of a search warrant under s 465 of the Crimes Act, or information derived from things seized under the warrant, is subject to any limitation or duty of confidentiality to be implied from s 465. That is not to say that Victoria Police is free to use that information for any purpose at all, or to disclose it to the world at large. Both the common law and legislation limit the purposes for which the information can be used and disclosed.Common law 45Victoria Police argued that the common law recognises that there are circumstances in which police can lawfully disclose information that is otherwise confidential. In Marcel v Commissioner of Police of the Metropolis,38 one of the English authorities referred to in Johns,39 the police had allowed 37

George v Rockett (1990) 170 CLR 104, 110.

38

[1992] Ch 225 (Marcel).

39

Johns(1993) 178 CLR 408, 423 (Brennan J), 436 (Dawson J).

59 VR 435solicitors for a private party in civil litigation to inspect documents seized by them during a criminal investigation. Browne-Wilkinson VC held that the police were authorised to use the seized documents ‘only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner’. The Vice-Chancellor went on to observe:

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. But in my judgment the powers to seize and retain are conferred for the better performance of public functions by public bodies and cannot be used to make information available to private individuals for their private purposes.40

46Disclosure of confidential information to a regulator was directly in issue in Woolgar v Chief Constable of Sussex Police.41 In that case, the regulatory body for nurses sought from police the record of a voluntary interview given by the plaintiff under caution. The Court of Appeal accepted that ‘when someone is arrested and interviewed by the police what he or she says, is confidential’.42 This obligation of confidentiality arose, not by implication from statute, but because a person who volunteers information to police ‘is entitled to expect that it will be used only for the purpose of the investigation and subsequent criminal proceedings’.43 However, in the judgment of the Court of Appeal:

where a regulatory body ..., 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.

...

Putting the matter in convention terms Lord Lester submitted, and I would accept, that disclosure is ‘necessary in a democratic society in the interests of ... public safety or ... for the protection of health or morals, or for the protection of the rights and freedoms of others’.

Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration.44

40

Marcel[1992] Ch 225, 235 (Browne-Wilkinson VC) (emphasis in original). This passage was approved on appeal at Marcel v Commissioner of Police of the Metropolis [1992] Ch 225, 255 (Dillon LJ).

41

[2000] 1 WLR 25 (Woolgar).

42

Ibid, 29 (Kennedy LJ).

43

Taylor v Director of the Serious Fraud Office[1999] 2 AC 177, 198, cited in Woolgar[2000] 1 WLR 25, 29.

44

Woolgar[2000] 1 WLR 25, 36–7 (Kennedy LJ, Otton and Waller LJJ agreeing).

59 VR 43647Woolgar has not been considered or applied in Australia.45 However, the approach taken in Woolgar is consistent with the analysis of Warren CJ, in Director of Public Prosecutions v Zierk,46 of the circumstances in which an individual police officer has a ‘duty not to disclose’ information.47 The Chief Justice held that whether a duty not to disclose information exists must be determined by reference to the context.48 There were circumstances in which there was a clear duty of non-disclosure; for example, if disclosure would impede the detection, investigation or prosecution of criminal acts. On the other hand, ‘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’.4948Absent legislation, Woolgar and Zierk provide a basis for concluding that confidential information held by police can be disclosed to a relevant regulator in the public interest. However, in Victoria, there is a detailed and nuanced statutory framework for the handling of personal information held by public sector organisations, in the form of the Privacy Act.50Privacy Act 49The Privacy Act was enacted in 2014 for purposes that include providing for ‘responsible collection and handling of personal information in the Victorian public sector’.5150Central to the Act’s operation is the concept of ‘personal information’, which is defined broadly 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’.52 All parties accepted that the information provided by Victoria Police to Racing Victoria fell within the definition of ‘personal information’ in the Privacy Act.5351An organisation to which the Privacy Act applies must comply with the Information Privacy Principles, or IPPs, ‘in respect of personal information collected, held, managed, used, disclosed or transferred by it’.54 The IPPs are 45

It has been considered and applied in England on several occasions: see Frankson v Home Office [2003] 1 WLR 1952; Akaracy, R (on the application of) v West Yorkshire Police [2017] EWHC 159; Saab v Angate Consulting Ltd [2019] EWHC 1558.

46

(2008) 184 A Crim R 582 (Zierk).

47

Zierk concerned a prosecution for an offence against s 127A of the Police Regulation Act 1958 (Vic), which prohibited disclosure by a member of the police force of information obtained ‘by virtue of his office and which it is his duty not to disclose’. The equivalent offence under the Victoria Police Act 2013 (Vic) is s 227.

48

Zierk(2008) 184 A Crim R 582, 590[34].

49

Ibid 590[36].

50

And previously in the Information Privacy Act 2000 (Vic).

51

Privacy and Data Protection Act 2014 (Vic) (Privacy Act) s 1(a).

52

Privacy Act s 3 — definition of ‘personal information’. The definition excludes information of a kind to which the Health Records Act 2001 (Vic) applies.

53

Subject to the submission made by Mr McLean discussed at [59] below.

54

Privacy Act s 20(1).

59 VR 437set out in sch 1 to the Privacy Act.52The Privacy Act binds the Crown in right of Victoria, and applies to public sector organisations, including Victoria Police.5553Victoria Police is a ‘law enforcement agency’ for the purposes of the Privacy Act, and is not required to comply with certain IPPs in the circumstances specified in s 15. The most relevant of those circumstances is where Victoria Police believes on reasonable grounds that the noncompliance was necessary ‘for the purposes of one or more of its law enforcement functions or activities’ — for example, for the purposes of a criminal investigation. In this case, there was no suggestion that Victoria Police was obliged to comply with IPPs 1.3 to 1.5 — which concern the collection of personal information — when executing the search warrant at Mr McLean’s home on 30 January 2019.54IPP 2 concerns use and disclosure of personal information. IPP 2.1 provides, relevantly:

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—

...

• (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;

    ...

  • (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; or

55The primary purpose of collection of the personal information here was, clearly, the criminal investigation being undertaken by Victoria Police. IPP 2.1 authorises disclosure of personal information for the secondary purposes specified. Victoria Police contended that its disclosure to Racing Victoria was authorised under each of IPP 2.1(e), (f) and (g). Before dealing with that contention, it is necessary to consider two arguments put by Mr McLean concerning the application of the Privacy Act and IPP 2.1.55

Privacy Act ss 8 and 13(1)(i).

59 VR 43856First, Mr McLean relied on s 6 of the Privacy Act, which provides that, if a provision made by or under the Privacy Act relating to an IPP is ‘inconsistent with a provision made by or under any Act’, the other provision prevails and the provision of the Privacy Act is (to the extent of the inconsistency) of no force and effect. He argued that IPP 2.1 was inconsistent with s 465 of the Crimes Act and the duty of confidentiality to be implied from it.57I cannot accept this submission. The Crimes Act and the Privacy Act are both Acts of the Parliament of Victoria. There is a strong presumption that Parliament does not intend to contradict itself, and intended that both Acts should operate.56 That intention is evident from the Explanatory Memorandum for the Privacy and Data Protection Bill 2014, which explained that clause 6 would ‘allow relevant aspects of the IPPs to overlay the operation of other Acts where requirements can be observed concurrently’. The two Acts should therefore be read harmoniously if possible.5758Here, there is no conflict between the relevant provisions, because s 465 of the Crimes Act and the Privacy Act deal with different things. Section 465 governs how things seized under a search warrant are to be handled, by being taken before the Magistrates’ Court ‘to be dealt with according to law’. The Privacy Act is concerned with the much broader notion of ‘personal information’. In this case, the seized things have been dealt with in accordance with s 465. They are not one and the same as the personal information that has been disclosed to Racing Victoria. As I have found, s 465 does not limit the use and disclosure of information about or derived from things seized under a warrant. Where, as here, that information is ‘personal information’, its use and disclosure is subject to the Privacy Act.59Second, Mr McLean submitted that it would make no sense for Victoria Police to be exempt from compliance with IPPs 1.3 to 1.5 in respect of collecting the information, but to be subject to IPP 2.1 in respect of its use and disclosure. I think that this submission misunderstood the effect of s 15 of the Privacy Act. The effect of that section is that Victoria Police need not comply with IPPs 1.3 to 1.5 and 2.1 where noncompliance is necessary for the purposes of its law enforcement functions or activities. So, the Privacy Act may not apply to the collection, use or disclosure of information by Victoria Police for the purposes of a criminal investigation. In those circumstances, the use and disclosure of information would be governed by the common law58 and any statutory provision under which the information was obtained. But where Victoria Police wishes to disclose information for another purpose — here, to inform the relevant regulator of evidence of concern about a licensed 56

Butler v Attorney-General (Victoria)(1961) 106 CLR 268, 276 (Fullagar J); Saraswati v The Queen(1991) 172 CLR 1, 17 (Gaudron J); Masson v Parsons(2019) 93 ALJR 848, 860–1[42] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

57

For example, in Pratten, Rothman J read s 3F(5) of the Crimes Act 1914 (Cth) and s 264 of the Income Tax Assessment Act 1936 (Cth) ‘as one’, and concluded that both provisions authorised the disclosure of seized documents to the ATO: Pratten(2013) 302 ALR 329, 344[86].

58

As discussed at [45]–[48] above.

59 VR 439person — it can only do so if the disclosure is authorised by IPP 2.1.

Was the disclosure by Victoria Police unlawful?

60The letter with which the information was provided by Victoria Police to Racing Victoria said that the information was disclosed under IPP 2.1(e) ‘in relation to any unlawful activity relating to breaches of the Rules of Racing’. Victoria Police submitted that its disclosure to Racing Victoria was authorised under IPP 2.1(e), because it had reason to suspect that unlawful activity had been engaged in, and disclosed the personal information ‘in reporting its concerns to relevant persons or authorities’.61Mr McLean did not dispute that Racing Victoria is a relevant person or authority for the purposes of IPP 2.1(e). He did, however, dispute that Victoria Police had reason to suspect that ‘unlawful activity’ had been engaged in. He argued that ‘unlawful activity’ in IPP 2.1(e) meant criminal activity, and did not extend to breaches of the Rules of Racing.62The phrase ‘unlawful activity’ is not defined in the Privacy Act. It was submitted for Mr McLean that it should be construed narrowly, ‘bearing in mind that the provision is intended to be an exclusion to the otherwise paramount right to privacy’. He relied on both the principle of legality and ss 13(a) and 32 of the Charter of Human Rights and Responsibilities 2006 (Vic) (the Charter). Section 13 of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.63I accept that both the principle of legality and s 32 of the Charter would support the construction of ‘unlawful activity’ in IPP 2.1(e) that least interferes with personal privacy, if there was a constructional choice to be made. However, I am not persuaded that it is possible to interpret ‘unlawful activity’ as limited to criminal activity, consistent with the purpose of IPP 2.1 and the Privacy Act as a whole. There are several reasons for that conclusion.64Beginning with the text of the provision, the ordinary meaning of ‘unlawful’ is ‘not lawful; contrary to law; illegal; not sanctioned by law’59 and ‘contrary to or not obeying the law or rules’.60 This meaning embraces all law and rules, whether criminal or civil. There is no textual basis for reading ‘unlawful activity’ as confined to criminal activity.65Second, IPP 2.1(e) contemplates that any organisation to which the Privacy Act applies may either investigate the suspected unlawful activity itself, or refer its concerns to a relevant person or authority. Although a criminal investigation is the preserve of a law enforcement agency, IPP 2.1(e) is not confined in its application to law enforcement agencies, and nor does the relevant person or authority have to be a law enforcement agency. IPP 2.1(g) makes specific provision for use or disclosure to a law enforcement agency 59

Macquarie Australian Dictionary (online) ‘unlawful’.

60

Shorter Oxford English Dictionary (online), ‘unlawful’.

59 VR 440for the purpose, among other things, of investigating criminal offences. This indicates that IPP 2.1(e) is concerned with any kind of activity that is contrary to law, not only criminal activity.66Third, an object of the Privacy Act is ‘to balance the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector’.61 The right to privacy in s 13 of the Charter is not, as was suggested for Mr McLean, ‘paramount’. Parliament has provided that the right may be limited by law, in a way that is proportionate to a legitimate aim.62 It has done this in enacting the Privacy Act, which represents a careful balancing of competing public interests, as did the Information Privacy Act 2000 (Vic) before it.63 It is apparent from the context of the Privacy Act as a whole that the public interest in the free flow of information that it supports is much broader than the availability of information to law enforcement agencies for the purpose of investigating and prosecuting criminal activity.67In any event, even if ‘unlawful activity’ is limited to criminal activity, Victoria Police had reason to suspect criminal activity. Syringes were found in a bedside drawer in Mr McLean’s home, containing EPO for which he said he did not need a prescription, one of which had been used to inject a horse trained by Mr McLean. As Victoria Police submitted, there was reason to suspect that the following crimes had been committed:

• (a)

  unauthorised possession of a sch 4 poison, contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic);

• (b)

  obtaining financial advantage by deception, contrary to s 82 of the Crimes Act; and

• (c)

  engaging in conduct that corrupts or would corrupt a betting outcome of event or event contingency, contrary to s 195C of the Crimes Act.

68Having reason to suspect that criminal activity had been engaged in, IPP 2.1(e) authorised Victoria Police to disclose personal information about Mr McLean ‘in reporting its concerns to relevant persons or authorities’. I do not accept the submission by Mr McLean that IPP 2.1(e) requires the concerns reported to correspond exactly with the crimes suspected. It is sufficient, in my view, if the reason to suspect the unlawful activity gives rise to concerns that may be dealt with by the relevant authority. That is 61

Privacy Act s 5(a).

62

Applying the ‘human rights’ meaning of ‘arbitrary’ in s 13(a): see, eg, PJB v Melbourne Health (Patrick's Case)(2011) 39 VR 373, 395[85]; Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, 66[198]–[199] (Tate JA).

63

The Explanatory Memorandum for the Charter of Human Rights and Responsibilities Bill expressed an intention that the right to privacy in s 13 of the Charter ‘be interpreted consistently with the existing information privacy and health records framework in Victoria to the extent that it protects against arbitrary interferences’, 13.

59 VR 441plainly what occurred here.69I am satisfied that the disclosure of personal information by Victoria Police to Racing Victoria, by the letter dated 20 August 2019, was authorised by IPP 2.1(e). The disclosure was therefore lawful.70In view of the conclusions I have reached, it is not necessary to deal with the alternative submissions put by Victoria Police, that the disclosure was authorised by IPP 2.1(f) or IPP 2.1(g). Nor is it necessary to decide whether Racing Victoria is a ‘law enforcement agency’ for the purposes of the Privacy Act.

Disposition

71The disclosure by Victoria Police to Racing Victoria was lawful. There is therefore no basis for granting relief against either Victoria Police or Racing Victoria.72I will make an order dismissing the proceeding. I will hear from the parties on the question of costs.

Confidentiality orders

73By summons dated 18 September 2019, Mr McLean sought orders restricting access to some of the evidence filed in the proceeding, and to the written submissions filed for Victoria Police. He also sought orders that the material seized under the search warrant be referred to during the trial as the ‘seized material’ and the information provided by Victoria Police to Racing Victoria as the ‘further information’. In a proceeding in which he sought to enforce a duty of confidentiality, Mr McLean was concerned that further publication of the information would undermine the strength of his claim for an injunction to restrain further use of the information.6474I was satisfied that this was a legitimate concern, and was persuaded that I should make orders to the effect sought to preserve the subject matter of the proceeding. I made those orders at the commencement of the trial on 25 September 2019. The orders did not include any suppression order under the Open Courts Act 2013 (Vic).75Since I have concluded that the proceeding should be dismissed, there is no reason to continue the confidentiality orders indefinitely.76I will make an order vacating the confidentiality orders. I will hear from the parties as to when that order should take effect, and as to any other orders that Mr McLean may seek to preserve the subject matter of any appeal.Orders accordingly. 64

As occurred in, for example, Johns(1993) 178 CLR 408, 432 (Brennan J), 437–8 (Dawson J), 458 (Toohey J). See also Glencore International AG v Federal Commissioner of Taxation(2019) 93 ALJR 967, 969[2], [7].

59 VR 442Solicitors for the plaintiff: Tony Hannebery Lawyers. Solicitors for the first defendant: Minter Ellison. Solicitors for the second defendant: Marlo Baragwanath, Victorian Government Solicitor. A T HOELBARRISTER-AT-LAW

[The plaintiff applied to the Court of Appeal for leave to appeal. Ed, VR]