Rights and wrongs
Two wrongs
EFR, a child, went to the shops with some other young people and took items valued at $8.20 without paying for them.
She was issued with a caution by an officer of the New South Wales Police Force (the Police) under the Young Offenders Act 1997 (NSW).[1]
The Police phoned the Acting Principal of EFR’s school and told them EFR’s name and the details of the incident she was cautioned for[2].
That was wrong; it was an offence under s 66(1) of the Young Offenders Act, which says:
“A person who acquires information or prepares a record in the exercise of functions under this Act must not, directly or indirectly, divulge the information to another person except in the exercise of functions under this Act”.
The maximum penalty for the above is 500 penalty units or imprisonment for 12 months, or both.
(A penalty unit is $110.[3])
Up in Arms
EFR’s mother must have thought (as I do) that that was very wrong because she took immediate action. She wrote to the Law Enforcement Conduct Commission and the Department of Education then applied to the Police for an internal review under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).[4]
Police’s response
The Police, whose values include to uphold the rule of law (an aspect of which is, “laws must be obeyed by all persons, including the government itself”[5]), and preserve the rights of individuals,[6] relied on s 27 of the PPIP Act,[7] which says:
(1) Despite any other provision of this Act, the … NSW Police Force … are not required to comply with the information protection principles.
(2) However, the information protection principles do apply to … the NSW Police … in connection with the exercise of their administrative and educative functions.
Not satisfied with the Police’s response, EFR’s mum applied to the New South Wales Civil and Administrative Tribunal (Tribunal) for an administrative review of the Police’s conduct.
In the Tribunal
The Tribunal gave EFR’s mum the pseudonym, ECI, and permission to be EFR’s agent in the proceedings.[8]
Police’s position
The Police, who were represented by the Crown Solicitor, said s 27(1) applied. They also relied on a memorandum of understanding that contained an agreement that the Police would, subject to legislation that included privacy legislation, provide the Department of Education with information “for law enforcement and public safety purposes in the context of the need to maintain a safe and secure school environment”.[9]
EFR’s position
EFR said the Young Offenders Act prohibited the disclosure, therefore s 22 of the PPIP Act, which says, “Nothing in this Division authorises a public sector agency to do any thing that it is otherwise prohibited from doing”, applied and s 27(1) exemption was not available.[10]
Police’s reply
The Police said, among other things, that: s 22 of the PIPP Act did not apply, the term ‘administrative functions’ should be given the limited scope that other Tribunals had given it, and the disclosure to EFR’s school was a law enforcement, rather than an administrative, function.[11]
Case law consulted
The Tribunal discussed its case law on s 27, including:
HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 (10 September 2003) (HW v Police),
AEC v NSW Police Force [2013] NSWADT 32 (7 February 2013) (AEC v Police), and,
AEC v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 30 (9 July 2013)
HW
The Tribunal in HW v Police said that the Parliament had compartmentalised the Police’s functions in s 27. It gave s 27(2) a narrow construction so ‘administrative functions’ did not include administrative functions that related to the Police’s s 27(1) law enforcement functions.[12]
Then, sadly, the Tribunal decided that it was a core function of the Police, for the purpose of s 27(1), for the Police to go around collecting personal information by means of a bogus subpoena.[13]
AEC
The Tribunal in AEC v Police followed the narrow meaning that the Tribunal in HW v Police had given to ‘administrative functions’ and which the Appeal Panel in Commissioner of Police, New South Wales Police Force v YK[14] (Police v YK) had approved of. Consequently, the Tribunal decided that the Police’s conduct in disclosing AEC’s spent conviction, which was an offence under s 13 of the Criminal Records Act 1991 (NSW), “could not be characterised as administrative”.[15]
AEC appealed but the Appeal Panel (whose constitution included the Tribunal member who’d decided HW and who’d been on the Police v YK Appeal Panel said, “the Tribunal correctly interpreted the authorities binding on it”[16] and beneficial legislation can’t be interpreted “at the price of disregarding the words of the statute and the context in which they appear”.[17]
Yet, that’s precisely what the Tribunal in HW did when it read s 27 in isolation from the rest of the PPIP Act, disregarded the ordinary meaning of its words, and made assumptions about its purpose.
(Making assumptions about the purpose of a statute is “a danger that must be avoided”, the High Court said. “The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions … it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”[18] )
Tribunal in EFR’s conclusions
S 27(1)
Seeing an analogy between the Police’s conduct in HW (the collection of personal information by means of a bogus subpoena) and the Police’s conduct in EFR (the divulgement of personal information in the commission of an offence under the Young Offenders Act), the Tribunal said the conduct “fell within the exemption for NSW Police provided by s 27(1) of the PPIP Act … [and the] NSW Police Force was not required to comply with the IPPs”[19]
The Tribunal decided, in effect, that it was a function of the Police, for the purpose of s 27(1), for the Police to divulge personal information in the commission of an offence under the Young Offenders Act.
S 27(2)
Seeing an analogy between the Police’s conduct in AEC (the disclosure of personal information in the commission of an offence under the Criminal Records Act) and the Police’s conduct in EFR (the disclosure of personal information in the commission of an offence under the Young Offenders Act) the Tribunal followed the reasoning of the Tribunal in HW v Police and AEC v Police and said the conduct “was not “in connection with the exercise of… administrative … functions” of the NSW Police Force so as to fall within s 27(2) of the PPIP Act”.[20]
However …
An offence is not a function
It is an aspect of the rule of law that the Police are bound by the common law (unless “non-compliance with the common law is specifically authorised or excused by statute”).[21] And, under the common law, “It is not part of an officer’s duty to engage in unlawful conduct”[22].
The Tribunals in HW, AEC and EFR should, therefore, have rejected that it is a function of the NSW Police Force, for the purpose of s 27(1), for the Police to collect personal information by means of a bogus subpoena or commit offences under the Criminal Records Act and Young Offenders Act, then directed themselves to the real issue in the proceedings, which was whether the conduct occurred in connection with the exercise of the Police’s administrative or educative functions.
Re ‘in connection with’: The words ‘in connection with’ “are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote”[23]. They, and expressions such as ‘relating to’ and ‘in relation to’ … “may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear”.[24] However, an expression “of wide and general import” should not be read down in the absence of some compelling reason for so doing”.[25]
Competing constructions of s 27(2)
The Tribunal in HW v Police, to the extent that it construed s 27(2), broke all the rules. It attempted to compartmentalise the functions of the Police when “there is no bright line between … administrative and investigative tasks. Attempts to classify and compartmentalise police functions into one or other of these categories would be likely to generate uncertainty, sophistry and sterile litigation”.[26]
It read s 27(2) solely in the context of s 27(1) and rejected the meaning given to ‘administrative functions’ in a different context, in a different Act, with a different purpose,[27] but failed to determine what ‘administrative’ meant in the context of the PPIP Act, including the context if its purpose.
That purpose, as provided in the long title of the PPIP Act, is “to provide for the protection of personal information, and for the protection of the privacy of individuals generally …”
Correct approach
What the Tribunal in HW, and its adherents, should have done was recognise that s 27(2) was itself a law, that it conferred on individuals the right to have their personal information handled in compliance with the IPPs “in connection with the exercise of their [the Police’s] administrative and educative functions”, which made s 27(2) a beneficial provision of an Act developed to protect the human right of privacy.
Then the Tribunals should have applied the first rule of statutory construction (read words in their ordinary sense and in context), and given s 27(2) a beneficial construction that refused to read in limits, and applied s 33 of the Interpretation Act 1987 (NSW), and preferred a construction of s 27(2) that promoted the purpose of the PPIP Act over one that did not.
Above mention principles
“Each operative provision of a statute is itself a law”[28].
Rights conferred: When a duty is “imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention”.[29]
Beneficial construction: “Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation.[30]
First rule of statutory construction: “The first rule of all to be applied in construing a Statute is to ascertain the intention of the legislature from the words it has used, reading them in their ordinary natural sense in the context in which they stand, and giving to every word as far as possible its full meaning.” [31]
Section 33, Interpretation Act: “In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
Administrative, its ordinary sense
Administrative tasks are ancillary to investigative and preventative processes, the Court of Appeal indicated.[32] And, “making entries into police databases, returning the appellant’s property, photographing him and taking DNA samples” are, the High Court said, administrative tasks.[33]
Paperwork and red tape
To front line Police officers the word ‘administrative’ means post-investigation paperwork and red tape, and Parliament shares that understanding.
The Crimes Legislation Amendment (Penalty Notice Offences) Bill, which was partly inspired by the suggestions of front line police officers,[34] had a primary objective of achieving administrative savings for police and the courts[35] by “reducing the administrative demands on police in relation to relatively minor offences by providing a quick alternative to arrest for police officers in dealing with minor matters”.[36]
“The Attorney General told the Legislative Assembly: I am told by my colleague the Minister for Police that he has visited dozens of police stations during his time in office, and he has been told on dozens of occasions not only that officers would like to be less involved with paperwork and red tape but also that officers have consistently supported a scheme of this nature is a way of cutting down on paperwork.”[37]
NSW Police said legislation provided administrative savings and was an efficient alternative to charging offenders that minimised post-investigation time.[38]
Neither HW nor AEC nor EFR were seeking to have the IPPs apply to the Police in, for example, the course of an active investigation. They read the word ‘administrative’ in s 27(2) in its ordinary natural sense and asserted that the IPPs applied to the Police because the conduct that aggrieved them (the post-investigation collection of personal information by an unlawful means in HW, and the post-investigation unauthorised disclosure of personal information in AEC and EFR) occurred in connection with the performance of administrative duties[39] such as the paperwork involved in filling out and serving a subpoena (HW), and, the entering of information on a computer data base (AEC and EFR).
(In the PPIP Act, “exercise a function includes perform a duty”, and, “function includes a power, authority or duty,” s 3.)
Context and sense
The Health Records and Information Privacy Bill 2002 (HRIP Bill) was before Parliament at the same time as the Crimes Legislation Amendment (Penalty Notice Offences) Bill (and the conduct in HW v Police occurred at around the same time.)[40]
Clause 17 of the HRIP Bill referred to the Police’s administrative and educative functions in the same context as s 27(2) of the PPIP Act. Clause 17 said: “This Act does not apply to … the Police Service … except in connection with the exercise of their administrative and educative functions”.
(S 17 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) says: “This Act does not apply to the … NSW Police Force … except in connection with the exercise of their administrative and educative functions”.)
Parliament assented to the HRIP Act after the Crimes Legislation Amendment (Penalty Notice Offences) Bill 2002 was passed by both Houses of Parliament. The Members were fully aware, therefore, that the Police’s ‘administrative’ functions included post-investigation duties.
Parliament understood that entering information on databases and writing up charges etc. were administrative demands that took up administrative time and cost administrative money. And it was quite happy, apparently, for the Health Privacy Principles of the HRIP Act to apply to the Police when they undertook those duties, in recognition, no doubt, of the importance of protecting the privacy of individuals.
The Court of Appeal held that the PPIP and HRIP Acts “are in pari materia insofar as each applies to the public sector” and “In the absence of any context indicating a contrary intention, it is to be presumed that Parliament intended to give the same meaning to the same words when used in a subsequent statute in a similar connection”.[41]
It is to be presumed, therefore, that in the absence of any context indicating a contrary intention, ‘administrative and educative functions’ has the same meaning in s 27(2) of the PPIP Act as it does in s 17 of the HRIP Act. A meaning that Parliament was aware of and which includes, but is not limited to, administrative duties that arise post- investigation.
S 33 applied
A construction of s 27(2) that gives ‘administrative’ its full meaning, so as to encompass administrative duties that relate to the Police’s s 27(1) functions, promotes the purpose of the PPIP Act. A construction that gives ‘administrative’ a limited scope that excludes administrative duties that relate to s 27(1) functions does not promote the PPIP Act’s purpose.
“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule … shall be preferred to a construction that would not promote that purpose or object.”[42]
Therefore the first of the above-mentioned constructions shall be preferred.
Sophistry indeed
It can’t be denied that the Police had administrative duties to perform in connection with the issuing of the caution to EFR under the Young Offenders Act. And it can’t be denied that the IPPs applied to the Police in connection with the performance of those duties. Neither can it be denied that the conduct that aggrieved EFR and her mum occurred in connection with the performance of those duties.
Except that the Police, who know very well what ‘administrative’ functions means, and whose values include to uphold the rule of law, and preserve the rights of individuals,[43] do deny it, even to the face of the child whose rights they interfered with.
[1] EFR v Commissioner of Police [2020] NSWCATAD 159 (23 June 2020, [5].
[2] Ibid. [5].
[3] Crimes (Sentencing Procedure) Act 1999 (NSW), s 17.
[4] EFR v Commissioner of Police [2020] NSWCATAD 159 (23 June 2020), [2].
[5] Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622 (6 September 2016), [60].
[6] Police Act 1990 (NSW), s 7(b) and s 7(c).
[7] EFR v Commissioner of Police [2020] NSWCATAD 159 (23 June 2020), [7].
[8] Ibid. [4].
[9] Ibid. [11].
[10] Ibid. [15].
[11] Ibid. [20-22].
[12] HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 (10 September 2003), [27].
[13] Ibid. [15-16], [28-29] and [33].
[14] (GD) [2008] NSWADTAP 78 (27 November 2008), [20].
[15] AEC v NSW Police Force [2013] NSWADT 32 (7 February 2013), [28-30].
[16] AEC v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 30 (9 July 2013), [27].
[17] Ibid. [28].
[18] Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 (12 December 2012), [26].
[19] EFR v Commissioner of Police [2020] NSWCATAD 159 (23 June 2020), [41].
[20] Ibid.
[21] Smethurst v Commissioner of Police [2020] HCA 14 (15 April 2020), [111].
[22] Coleman v Power [2004] HCA 39 (1 September 2004), [117].
[23] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322 (9 July 1993), [28].
[24] Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133 (17 February 2020), [114].
[25] Fountain v Alexander [1982] HCA 16 (23 April 1982), [3].
[26] Cran v State of New South Wales [2004] NSWCA 92(29 March 2004), [73].
[27] HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 (10 September 2003,) [27].
[28] Attorney-General (Vict); Ex rel Black v The Commonwealth [1981] HCA 2 (02 February 1981), [7].
[29] Leask Timber & Hardware Pty Ltd v Thorne [1961] HCA 73 (16 November 1961), Kitto J, [7].
[30] IW v City of Perth [1997] HCA 30 (31 July 1997), Kirby J.
[31] Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd
[1911] HCA 31 (27 June 1911), O’Connor J.
[32] Cran v State of New South Wales [2004] NSWCA 92 (29 March 2004), [71].
[33] Carr v The State of Western Australia [2007] HCA 47 (23 October 2007), [23].
[34] NSW Ombudsman, On the Spot Justice? The Trial of Criminal Infringement Notices by NSW Police (Report to Parliament pursuant to section 344 of the Criminal Procedure Act 1986, April 2005), [59].
[35] Ibid. [93].
[36]Ibid. [23].
[37] Ibid. [59].
[38] Ibid. [95].
[39] In the PPIP Act, exercise a function includes perform a duty, and, function includes a power, authority or duty, s 3.
[40] Health Records and Information Privacy Bill 2002: introduced June 2002 and assented September 2002, <www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3140>.
Crimes Legislation Amendment (Penalty Notice Offences) Bill: introduced June 2002 and assented 4 July 2002, <www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=726>.
Conduct in HW: May 2002.
[41] AQO v Minister for Finance and Services [2016] NSWCA 248 (5 September 2016), [76].
[42] Interpretation Act 1987 (NSW), s 33.
[43] Police Act 1990 (NSW), s 7(b) and s 7(c).
