Privacy rights and law enforcement functions
(Amended on 19 July 2020. See post script.)
Mr Cavallaro, a former member of the New South Wales Police Force (the Police), sent an open letter to his former colleagues who were serving police officers. The open letter came to the attention of an inspector and a detective inspector who both sent directions to the police officers about Mr Cavallaro’s letter.[1]
When Mr Cavallaro found out that the detective inspector’s direction (Direction) said there would be an investigation into whether Mr Cavallaro had committed any criminal offences[2] he felt defamed and he applied to the Police for an internal review under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).[3]
The Police’s internal review finding – that a statutory exemption applied and the information protection principles (IPPs) did not apply to the Direction[4], did not satisfy Mr Cavillaro so he applied to the NSW Civil and Administrative Tribunal (Tribunal) for an administrative review of the Police’s conduct.
In the tribunal
The Police said they were not required to comply with the IPPs because of s 27(1) of the PPIP Act which says:
“Despite any other provision of this Act, the … NSW Police Force … are not required to comply with the information protection principles”.
Mr Cavallaro said that the IPPs did apply to the Police because of s 27(2) of the PPIP Act which says:
“However, the information protection principles do apply to the … NSW Police Force … in connection with the exercise of their administrative and educative functions”.
Tribunal’s approach
Not wanting s 27(2)’s ‘administrative functions’ to impinge on the s 27(1) exemption, the Tribunal had a look at s 6 of the Police Act 1990 (NSW) and tried to work out what the s 27(1) and s 27(2) functions were. That was a mistaken approach because, as the NSW Court of Appeal said, “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”[5].
The Tribunal said the Police’s s 27(1) functions were to detect and prevent crime. That the Direction referred to a criminal investigation and was “inextricably linked with one of the main functions of the NSWPF, being the prevention and detection of crime”.[6]
It didn’t give the words “in connection with” any work to do and rejected out of hand Mr Cavallaro’s submission that the Direction was an administrative function.[7]
It cited some case law where other Tribunals had taken a similar approach[8] to the construction of the term ‘administrative functions’ by giving it a narrow scope that excludes administrative functions that relate to s 27(1)’s law enforcement functions.
The Tribunal agreed with the Police that s 27(1) applied because the Direction related to the Police’s s 27(1) functions.[9]
All of which I think wrong.
Preferred approach
“Each operative provision of a statute is itself a law”[10] and what the Tribunal should have done is recognise that s 27(2) is a beneficial provision of a human rights Act. It should have construed s 27(2) in light of the PPIP Act’s purpose, and given its words their ordinary meaning.
Construction of s 27(2)
(“Statutory construction is the process by which meaning is attributed to statutory text”.[11])
Right to protection of personal information and privacy
In providing that the IPPs apply to the Police (and other specified law enforcement and investigative agencies) in connection with the exercise of their administrative functions, s 27(2) confers on individuals the correlative right to have their personal information handled in compliance with the IPPs by the Police (and the other specified law enforcement and investigative agencies) in connection with the exercise of their administrative functions.
(A correlative right arises when a duty is imposed for the benefit of particular persons who may be injured by its contravention.[12])
Give effect to Act’s purpose
The PPIP Act was developed “… to provide for the protection of personal information, and for the protection of the privacy of individuals generally …”[13]
“In construing legislation designed to protect basic human rights and dignity, the courts “have a special responsibility to take account of and give effect to [its] purpose”[14]
Construe beneficially
“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”.[15]
“The Parliament has conferred on all members of the public protections in relation to their personal information held by public sector agencies, apparently defined in expansive terms. To give such legislation a purposive or “beneficial” interpretation is to refuse to imply limitations not expressed in clear terms …”[16]
Context
“It is … [a] basic proposition that any provision of any Act must always be construed in the context of the whole Act.”[17]
First rule of 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.”[19]
Key terms
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”[20]. 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”[21]. An expression “of wide and general import” should not be read down in the absence of some compelling reason for so doing”[22].
Administrative
‘Administrative’ is defined as: “concerning or relating to the management of affairs.”[23]
The NSW Supreme Court said, “the words “administrative functions” [in s 39(b) of the Freedom of Information Act 1989 (NSW)] were not intended to be a description of one set of functions among many … they were used in a generic sense to refer to all those functions performed by the Agency which relate to the management and execution of its responsibilities as derived from common law, statute or government arrangement”.[24]
The NSW Court of Appeal indicated that administrative tasks are ancillary to investigative and preventative processes.[25]
And the High Court said, “making entries into police databases, returning the appellant’s property, photographing him and taking DNA samples” were administrative tasks.[26]
‘Administrative functions’ is a generic term that has, it seems, a wide meaning.
Exercise and functions
In the PPIP Act exercise a function includes perform a duty, and function includes a power, authority or duty.[27]
Context of exemptions
When 27(2) is read in the context of exemptions other than s 27(1) it can be seen that their is no necessity to depart from the natural and ordinary sense of s 27(2)’s words or to do anything but give the words their full meaning. An amplitude of exemptions from the obligation to comply with the IPPs are provided in the Act. For example, s 23 provides exemptions from the obligations to comply with the IPPs in s 9, 10, 17, 18 and 19 in certain circumstances that relate to law enforcement, and s 25 ensures that the PPIP Act “does not override other statutory provisions with which it is inconsistent”:Turnbull v Strange [2018] NSWCA 157 (20 July 2018), [19].
Conclusion
By applying the principle that beneficial legislation should not be construed narrowly, and the rule that says to give the words of a statute their ordinary meaning, and reading s 27(2) in the context of the PPIP Acts purpose and other exemptions provided then the term “administrative … functions” in s 27(2) has a wide scope that encompasses administrative functions that relate to the Police’s s 27(1) powers and functions.
S 27(2) applied
The IPPs did apply to the Police because the conduct of writing and sending the Direction occurred in connection with the administrative function of managing the affair of the open letter.
Post script
References in blog post to s 23 of the PPIP Act were removed on 19 July 2020.
[1] Cavallaro v Commissioner of Police [2020] NSWCATAD 132 (14 May 2020), [63].
[2] Ibid.
[3] Ibid. [57].
[4] Ibid. [65].
[5] Cran v State of New South Wales [2004] NSWCA 92 (29 March 2004), [73].
[6] Cavallaro v Commissioner of Police [2020] NSWCATAD 132 (14 May 2020), [110].
[7] Ibid.
[8] Ibid. [111, 112, 113 and 116].
[9] Ibid. [117].
[10] Attorney-General (Vict); Ex rel Black v The Commonwealth [1981] HCA 2 (02 February 1981), [7].
[11] SAS Trustee Corporation v Miles [2018] HCA 55 (14 November 2018), [41].
[12] Leask Timber and Hardware PTY. LTD. v. Thorne [1961] HCA 73 (16 November 1961), Kitto J., [7].
[13] PPIP Act, Long title.
[14] IW v City of Perth [1997] HCA 30 (31 July 1997), Dawson and Gaudron JJ.
[15] IW v City of Perth [1997] HCA 30 (31 July 1997), Kirby J.
[16] AQO v Minister for Finance and Services [2016] NSWCA 248 (5 September 2016), [134].
[17] Plaintiff M47-2012 v Director General of Security [2012] HCA 46 (5 October 2012), [211].
[18] Carr v The State of Western Australia [2007] HCA 47 (23 October 2007), [15].
[19] Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31 (27 June 1911).
[20] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322 (9 July 1993), [28].
[21] Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133 (17 February 2020), [114].
[22] Fountain v Alexander [1982] HCA 16 (23 April 1982), [3].
[23] The Australian Concise Oxford Dictionary (2nd edition) (1992), Oxford University Press.
[24] Commissioner of Police New South Wales v “N” [2003] NSWSC 943 (23 October 2003), [17].
[25] Cran v State of New South Wales [2004] NSWCA 92 (29 March 2004), [71].
[26] Carr v The State of Western Australia [2007] HCA 47 (23 October 2007), [23].
[27] PPIP Act, s 3.
[28] Project Blue Sky v ABA [1998] HCA 28 (28 April 1998), [71].
