Administrative functions
This blog post concerns the meaning of the words ‘administrative functions’ in s 27 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) which says:
(1) Despite any other provision of this Act, the … 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 Force … in connection with the exercise of their administrative and educative functions.
(In the PPIP Act “exercise a function includes perform a duty”[1].)
Legislature’s intention
It appears from s 27’s words that the legislature had two discrete intentions in enacting s 27. The first being to not require the NSW Police Force (Police) to comply with the information protection principles (IPPs) and the second being to require the Police to comply with the IPPs in connection with exercise of their administrative and educative functions.
It does not appear from any words or context provided by the PPIP Act that the legislature intended s 27’s words to have anything but their ordinary meaning.
Therefore the general rule “that legislative provisions are to be construed according to their natural and ordinary meaning” is applicable and “it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights.[2]”
Meaning of ‘administrative’
The word ‘administrative’ has a variety of dictionary meanings that include “concerning or relating to the management of affairs”[3].
Courts have identified the following police duties as ‘administrative’: bagging and labelling items seized under a warrant[4], “making entries into police databases, returning the appellant’s property, photographing him and taking DNA samples”[5], and, tasks that are ancillary to investigative and preventative processes[6].
Ordinary meaning rejected
The New South Wales Civil and Administrative Tribunal, in EJW v Commissioner of Police [2020] NSWCATAD 326 (23 December 2020), apparently thought:
- that to read the term ‘administrative functions’ according to its ordinary meaning would be to disregard the words of s 27 and the context in which they appear, and,
- to assume it was the law that ‘administrative functions’ had its ordinary meaning (simply because it promoted the PPIP Act’s purpose) would be to frustrate, rather than effectuate, the legislature’s intention.[7]
The Tribunal did not, however, point to any PPIP Act words or context that would be disregarded, or any legislative intention that would not be given effect to, if the words ‘administrative functions’ were read as having their ordinary meaning.
What the Tribunal did point to, however, was a web of Tribunal cases, at the centre of which is the peculiarly reasoned and unaccountably followed HW v Commissioner of Police, NSW Police [2003] NSWADT 214.[8]
Peculiarly reasoned
In HW v Police the Tribunal read the words ‘administrative functions’ down without even considering whether they should be read as having their ordinary meaning. The Tribunal read ‘administrative functions’ down because (apparently) it thought that the broad meaning given to ‘administrative functions’ in the Freedom of Information Act 1989 (NSW) would be inappropriate.[9]
The Tribunal surmised that s 27 identified a spectrum of operational areas. That the legislature intended to take a compartmentalised approach to the Police’s functions – dividing them into core s 6 of the Police Act 1990 responsibilities and those “which are not part of their core responsibilities”.[10]
It was on the basis of its surmises, which are not founded in PPIP Act’s words, that the Tribunal read ‘administrative functions’ down.[11]
Unaccountably followed
The Tribunal in HW’s surmises did not get the approval of the Appeal Panel in Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 (27 November 2008) . The Appeal Panel said the core/non-core division was not a legal test and it “is not necessary to refer to the Police Act list of functions”. [12]
Sheer illogicity
But, whether it was to save the face of the Tribunal in HW or to keep in good with the big boys- and-girls-in-blue, the Appeal Panel retained the read-down meaning of ‘administrative functions’. (See Sophistry.)
If only
I just hope that sooner rather than later a Tribunal constituted by a critically thinking member with a backbone (who can recall their law school lessons on statutory interpretation and who recognises and values privacy as a human right) will take a fresh look at s 27 and give ‘administrative functions’ its ordinary meaning; the mindless and sycophantic following of HW v Police is frustrating the legislature’s intention to require the Police to comply with the IPPs in connection with the exercise of their administrative functions.
[1] PPIP Act, s 3.
[2] Marshall v Director General Department of Transport [2001] HCA 37 (21 June 2001), [38].
[3] The Australian Concise Oxford Dictionary (2nd edition) (1992), Oxford University Press.
[4] Regina (C’Wealth) v Baladjam & Ors [No 46] [2008] NSWSC 1465, [23].
[5] Carr v The State of Western Australia [2007] HCA 47 (23 October 2007), [23].
[6] Cran v State of New South Wales [2004] NSWCA 92 (29 March 2004), [71].
[7] EJW v Commissioner of Police [2020] NSWCATAD 326 (23 December 2020), [23-24].
[8] Ibid. [14-18].
[9] HW v Commissioner of Police, NSW Police [2003] NSWADT 214, [27].
[10] Ibid. [25-27].
[11] Ibid. [25-27].
[12] [17] and [20].
