Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EJW v Commissioner of Police [2020] NSWCATAD 326 Hearing dates: On the papers Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: 1. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken on the matter. Catchwords: HUMAN RIGHTS — Legislation — Privacy and Personal Information Protection Act 1998 (NSW) – exemption – whether service of a brief of evidence is an administrative function of the NSW Police Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Criminal Procedure Act 1986 (NSW) Police Act 1990 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: AEC v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 30 Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 Cran v State of NSW [2004] NSWCA 92 EFR v Commissioner of Police [2020] NSWCATAD 159 HW v Commissioner of Police, NSW Police [2003] NSWADT 214. Texts Cited: None cited Category: Principal judgment Parties: EJW (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: EJW (Self Represented) Crown Solicitor (Respondent) File Number(s): 2020/00215847 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited. REASONS FOR DECISION Background 1. On or around 23 April 2019 the applicant EJW made a complaint about the conduct of a police officer to the Chief Inspector of the Traffic and Highway Patrol Command. On 23 May 2019 the complaint was declined for further investigation under s 132 of the Police Act 1990. 2. Subsequently EJW lodged an application for review about the same conduct to the Information and Privacy Commission. 3. The application was forwarded to the NSW Police Force (NSWPF) which apparently received it on 13 September 2019. On 23 April 2020 the NSWPF informed EJW that it would be conducting an internal review. The review was finalised on 24 June 2020. 4. The substance of the complaint was that: 1. On 12 March 2019, an office of the Traffic and Highway Patrol Command disclosed EJW's personal information being a NSWPF brief of evidence in relation to a criminal charge, to a law firm which was not instructed to represent EJW. 2. On 29 March 2019 the brief was served on the correct law firm by the officer with apologies. 3. The late service of the brief prejudiced EJW's solicitor's ability to prepare for the hearing of the criminal charge. As a result, the court imposed the maximum sentence. EJW subsequently appealed the sentence. 1. EJW sought the following remedies: 1. A written apology from the officer to her and her lawyer. 2. $5000 monetary compensation to cover the costs of her appeal. 3. Disciplinary action against the officer. Relevant legislation 1. Section 12 provides: "12 Retention and security of personal information A public sector agency that holds personal information must ensure— (a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and (b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and (c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and (d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information." 1. Section 18 provides: "18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless— (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it." 1. Section 27 provides: "27 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, NSW Police Force, LECC, Inspector of LECC and Inspector's staff and NSW Crime Commission) (1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission and the New South Wales Crime Commission are not required to comply with the information protection principles. (2) However, the information protection principles do apply to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions." 1. Section 47 provides that the Privacy Commissioner may refer a complaint for investigation or other action to any person or body considered by the Privacy Commissioner to be appropriate in the circumstances. 2. Sections 53 and 55 provide: "53 Internal review by public sector agencies (1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information). Note— Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A). (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must— (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. (4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person— (a) who was not substantially involved in any matter relating to the conduct the subject of the application, and (b) who is an employee or officer of the agency, and (c) who is otherwise suitably qualified to deal with the matters raised by the application. (5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by— (a) the applicant, and (b) the Privacy Commissioner. (6) The review must be completed as soon as is reasonably practicable In the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned. (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following— (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. (7A) A public sector agency may not pay monetary compensation under subsection (7) if— (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of— (a) the findings of the review (and the reasons for those findings), and (b) the action proposed to be taken by the agency (and the reasons for taking that action), and (c) the right of the person to have those findings, and the agency's proposed action, administratively reviewed by the Tribunal. 55 Administrative review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with— (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53. (1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct. (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders— (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. (3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (4) The Tribunal may make an order under subsection (2) (a) only if— (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. (4A) The Tribunal may not make an order under subsection (2) (a) if— (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (5) If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency. (6) The Privacy Commissioner is to be notified by the Tribunal of any application for an administrative review. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to an administrative review. (7) The Information Commissioner is to be notified by the Tribunal of any application for a review under this section that concerns the provision of government information by an agency (within the meaning of the Government Information (Public Access) Act 2009). The Information Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to such a review." 1. Section 63 of the Administrative Decisions Review Act 1997 provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." Issues for decision 1. The issues before the Tribunal in this administrative review are: 1. Whether the exemption in s 27 of the PPIPA applies to the conduct complained about – that is, whether the conduct was the exercise of an administrative function. 2. If the exemption does not apply, whether the conduct breached any of the Information Protection Principles (IPPs) in the PPIPA claimed by the applicant. 3. If any breach is found, what order if any the Tribunal should make. Whether exemption under s 27 applies 1. Both the respondent and the applicant referred to the decision of the former Administrative Decisions Tribunal in HW v Commissioner of Police, NSW Police [2003] NSWADT 214 in their submissions. 2. In HW the Tribunal distinguished between core police functions and administrative and educative functions with regard to s27: "The section seeks, I consider, to draw a distinction between the core responsibility of the Police Service and its 'administrative' and 'educative' functions. 26 The provision of 'police services' could perhaps be described as the core responsibility. Another way it was put in submissions was that its core responsibility was 'law enforcement'. The Police Act 1990 s 6 provides that the Police Service has three functions, the first of which is 'to provide police services for New South Wales'. 'Police services' are defined as follows: "police services" includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. 27 A broad interpretation of 'administrative functions' may be appropriate in a legislative scheme which does not otherwise compartmentalise the functions of a public sector agency (as I considered to be the case in relation to the way that expression applies to the Police Service in the setting of the amendment of personal record provisions in the Freedom of Information Act 1989: see N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (subject to appeal)). However in s 27 the Parliament has taken a compartmentalised approach to the functions of the law enforcement agencies mentioned. The division, as I see it, is as between their core responsibilities and those responsibilities which are not part of their core responsibilities. In particular the meaning of the word 'administrative' is to be read down so as not to embrace those core responsibilities. Similarly 'educative' responsibilities, which might on one view simply be a component of 'administrative' activity are to seen as separate from administrative responsibilities and again not forming part of the core responsibilities. 28 In my view the activities of a police officer in supporting a prosecution, at least where he or she is asked to exercise independent discretion and judgment in performing a task, are activities that form part of the core responsibilities of the Police Service. The fundamental responsibility of the Police Service is the investigation of crime." 1. EJW submits that that this is an outdated interpretation of what constitutes administrative functions in the modern technological workplace and that administrative functions are the tasks and activities which are part of the daily operations of a business such as answering calls, preparing documents, and managing correspondence. Every employee in an organisation will at some point undertake administrative tasks. Delivery of a brief of evidence is an exercise in handling correspondence. 2. The respondent submits that this does not apply to the current case where the brief was delivered by hand in hard copy. It seeks to rely on the fact that the service of the brief was part of the process of charging and prosecuting a criminal offence and subsequently cannot be seen as an administrative function. 3. In a later case, Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78, the distinction between "core" and "non-core" functions was not followed. The Appeal Panel said: "In our opinion, section 27(1) gives a blanket exclusion from the application of the Act to the named agencies in respect of all of their activities, subject only to the qualification set out in s 27(2). Therefore the starting point is that all functions of the Police Force have the benefit of the s 27(1) exclusion. It is not necessary to refer to the Police Act list of functions. The question is simply whether the activity is brought back under the regulation of the Act because it belongs to the 'administrative' or 'educative' services of the Police Force". (at [20]) 1. The distinction was discussed in EFR v Commissioner of Police [2020] NSWCATAD 159: "As noted in HW at [29], the term "administrative" cannot refer to the entirety of the administrative activity of the NSW Police, which would include investigation of crime, and it is intended to have a narrower compass. As discussed in HW at [30], in determining what that is, the context that has given rise to the conduct in issue is relevant. Section 27(1) of the PPIP Act excludes all of the functions of the NSW Police Force from compliance with the IPPs. The question then is under s 27(2) whether the particular activity or conduct the subject of the complaint is, to use the language of YK at [20], "brought back under the regulation of the Act because it belongs to the 'administrative' or 'educative' services of the Police Force". In CTU v NSW Police Force [2017] NSWCATAD 204 at [18], the Tribunal held that the word "administrative" in s 27(2) is to be given its ordinary meaning, or commonly understood meaning, unless the context indicates some other meaning is intended. That meaning, according to the Macquarie Dictionary, is "relating to administration; executive; administrative ability; administrative functions". Administrative functions would include, as held in HW at [30], "corporate services areas performing functions such as personnel, budget and information technology". As discussed in AEC, however, the term "administrative" is not limited to functions relating to corporate services." 1. The conduct in question is the service of a brief of evidence on the wrong solicitor and then reservice on the correct solicitor. As noted by the parties in their submissions, the service of a brief of evidence is required by s 183 of the Criminal Procedure Act 1986. This provides: "183 Brief of evidence to be served on accused person where not guilty plea (1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence. (2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include-- (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit. (3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. (4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it." 1. It is clear from the section quoted that a brief of evidence is served in the context of the prosecution of crime. While delivery of documents in another context might come within the concept of administrative functions as described in EFR, delivery of a brief of evidence does not. The timing and contents of the brief are determined by the legislation, which deals with the prosecution of indictable offences, committal proceedings and proceedings for summary offences and other matters relating to criminal prosecutions. 2. The applicant submits that the service of the brief on the wrong solicitor is not authorised by s 183 and should not be protected by the exemption. The NSWPF are exempt from the operation of the Information Privacy Principles in all their functions, however, except administrative and educative functions. Although the brief was served in error, that in itself does not make the act of serving it on the wrong solicitor an administrative function. There is nothing in the PPIPA which suggests that a police function affected by error in some way was not intended to be covered by the exemption. 3. The applicant relies on Cran v State of NSW [2004] NSWCA 92 as authority that administrative tasks are those which are ancillary to investigative processes. That case did not consider the PPIPA and merely referred to "administrative tasks" in a general sense (at [71]). It is not authority for the proposition that all tasks ancillary to investigation are therefore administrative tasks under the PPIPA. 4. She also submits that while preparing the brief may be a prosecutorial function, delivery of it is not. The fact that the service of the brief is part of the criminal process and specifically provided for in the Criminal Procedure Act, however, does not support that view. I do not consider that it is permissible to disregard the criminal prosecution context and treat the service of the brief as merely a basic administrative task in order to achieve a different outcome. In AEC v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 30 at [28] the Appeal Panel held: "28 While laws designed to furnish citizens with new protections should be interpreted in a beneficial way, that cannot be done at the price of disregarding the words of the statute and the context in which they appear. As noted by the Commissioner, the Court of Appeal reinforced this point in its decision in Director-General, Department of Education and Training v MT (2006) 67 NSWLR 237 at [49]-[50]. The Court cited with approval the observation of the US Supreme Court in Rodriguez v United States (1987) 480 US 522 at 525-526: '... [N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the every essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be law.'" 1. I therefore conclude that the exemption applies to the conduct in question. The delay on review 1. The applicant has complained that the respondent did not complete the review within the 60 day timeframe required by the legislation. Section 53(6) provides that the review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application to the Tribunal for an administrative review of the conduct concerned. 2. If not satisfied with the action taken by the public sector agency in relation to the application, an applicant may apply to this Tribunal for administrative review of the conduct that was the subject of the application under section 53. The Tribunal does not have jurisdiction to review the delay in dealing with the application. Delay only gives the applicant the right to come to the Tribunal without waiting further for a decision. Conclusion 1. I am satisfied that the conduct which was the subject of the internal review came within the exemption provided by s 27(1) of the PPIPA. It was not in connection with the exercise of administrative functions of the NSW Police Force and did not fall within s 27(2) of the PPIPA. This means that the conduct could not be a contravention of the PPIPA. 2. Section 55(2) of the PPIPA sets out the orders the Tribunal can make on reviewing conduct of an agency, including deciding to take no further action on the matter. In circumstances where the conduct was exempt under s 27(1), the appropriate order is to decide to take no further action. Orders 1. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken on the matter. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020