Sophistry
Individuals should be able to have wrong information held by the New South Wales Police Force (Police) on the Computerised Operational Policing System database (COPS database) amended but they can’t, not because the Police are unable to amend wrong personal information, they are, but because the Police plain don’t want to.
Individuals have tried to tell the Police that the law says it has to correct wrong personal information, which it does – the information protection principle (IPP) in s 15 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) says:
“A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information … is accurate, and … is relevant, up to date, complete and not misleading …”
But the Police claim that the law does not apply to it because of the NSW Civil and Administrative Tribunal’s (Tribunal’s) case law on s 27 of the PPIP Act. (‘Tribunal’ refers also to the NSW Administrative Decisions Tribunal, the Tribunal’s predecessor.)
Section 27 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 … the NSW Police Force … in connection with the exercise of their administrative and educative functions.”
Sophistry in the Tribunal
(The use of a false argument, especially one intended to deceive.[1])
The problem with the Tribunal’s case law is that an early Tribunal’s attempts to compartmentalise police functions into ‘core’ functions to which the IPPs did not apply and non-core functions to which the IPPs did apply, and its consequent reading down the term ‘administrative functions’, has, as the NSW Court of Appeal predicted, generated sophistry.[2]
The justification for alleging sophistry is, firstly, that although an Appeal Panel rejected the use of the core/non-core division as a legal test, Tribunals do apply it as a test, sometimes with the implication that the Appeal Panel endorsed it.
The second justification is the Appeal Panel’s sheer illogicity in retaining the read-down meaning of ‘administrative functions’ after it rejected the propositions on which ‘administrative functions’ was read down.
Genesis of core function non-test
In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 (10 September 2003) (HW v Police) the Tribunal referred to s 6 of the Police Act 1990 (NSW) and said the function “to provide police services for New South Wales” (and anything related to it) was the Police’s core responsibility.
The Tribunal said “the meaning of the word ‘administrative’ is to be read down so as not to embrace those core responsibilities”, and, “corporate services areas performing functions such as personnel, budget and information technology involve the performance of ‘administrative’ functions”, plus maybe background checks on prospective employees and licensing responsibilities for firearms and the security industry.[3]
Applied as a test
GA v Police
In GA v Commissioner of Police, NSW Police [2005] NSWADT 121 (7 June 2005) (GA v Police) the Tribunal cited the Tribunal in HW on compartmentalisation, division, Police Act functions, core responsibilities, and reading down ‘administrative’, and said in its view “it would be unreasonable and unnatural to interpret the term “administrative functions” as covering the process of recording and using information relevant to the detection and prevention of crime in the COPS data base”.
Although there was evidence from the Police that the COPS database had administrative aspects the Tribunal was “not satisfied that those functions are necessarily administrative functions within the meaning of that term in s 27” because they were “indirectly associated with the core activity of the prevention and detection of crime”.
“Even if some aspects of the COPS system involve administrative functions”, the Tribunal said, “that does not mean that the aspect of recording and using information for the purpose of preventing and detecting criminal activity is part of NSW Police’s administrative or educative functions”.[4]
YK v Police
The Tribunal in YK v Commissioner of Police, New South Wales Police [2008] NSWADT 81 (13 March 2008) (YK v Police), cited the Tribunal in HW and applied the core function test to the Police’s conduct. In this case, however, the Tribunal found that the IPPs did apply to the Police’s post-investigation disclosure of information about YK to his employer because the function exercised by the Police was administrative.[5]
The Police, who’d contended in the Tribunal that the disclosure related to the Police’s core s 6 of the Police Act responsibilities,[6] said on appeal to the Tribunal’s Appeal Panel that the Tribunal’s reference to “core responsibilities was unhelpful”.[7]
Test rejected
The Appeal Panel, in Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 (27 November 2008) (Police v YK), said that the Tribunal in YK v Police had made an error. That the Tribunal in HW v Police had used ‘core’ as an aid to understanding the Police’s functions, not to “prescribe a legal test”, and, it was not necessary to refer to the Police Act functions.
After rejecting that the core/non-core division was a test and rejecting the necessity to refer to the Police Act functions, both of which were the bases on which the Tribunal in HW read ‘administrative’ functions down, the Appeal Panel said, “In our view, the way ‘administrative services’ is depicted in … HW … captures the meaning intended for this term …”[8]
Test resurrected
Despite the Appeal Panel in Police v YK’s rejection of it, Tribunals continue to apply the core/non-core division as a legal test. Anything with a conceivable relationship to the Police’s s 6 of the Police Act 1990 (NSW) function “to provide police services for New South Wales” is an ‘exempt’ core function of the Police, according to the Tribunal.
Even illegal or improper conduct is, contrary to the principle – “It is not part of an officer’s duty to engage in unlawful conduct”; Coleman v Power [2004] HCA 39 (1 September 2004), [117] – a core function of the Police to which the IPPs do not apply.
Collecting personal information with a “bogus subpoena” is a core function.[9]
Disclosing an individual’s spent conviction in breach of the Criminal Records Act 1991 (NSW) is a core function.[10]
Defaming a former police officer in a direction to serving police officers is a core function.[11]
And, divulging information about a child in breach of the Young Offenders Act 1997 (NSW) is a core function of the Police, according to the Tribunal’s case law.[12]
Misleading application of test
Tribunals have even applied the core function test with the implication that the Appeal Panel in Police v YK upheld it.
AEZ v Police
In AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91 (29 April 2013) (AEZ v Police), the Tribunal cited HW v Police on compartmentalisation, division, Police Act functions, core responsibilities, and reading down ‘administrative’.[13]
The Tribunal cited GA v Police and paragraph [20] from Police v YK where the Appeal Panel said: that s 27(1) gave a blanket exclusion that only s 27(2) qualified, that it wasn’t necessary to refer to Police Act functions, and that the question is whether the conduct is an administrative ‘service’ within the meaning captured by the Tribunal in HW.[14]
The Tribunal did not cite the Appeal Panel’s paragraph [17] denial that the core/non-core division prescribed a legal test. The Tribunal said the Appeal Panel was correct and it was bound to follow it,[15] but it did not decide AEZ’s matter according to the paragraph of the Appeal Panel’s reasons it cited – it applied the core function test that the Appeal Panel had expressly rejected and said, “As a result AEZ’s application must be dismissed”[16].
EEQ v Police
In EEQ v Commissioner of Police [2020] NSWCATAD 253 (19 October 2020) (EEQ v Police), the Police relied on the Police Act functions and said the decision to not amend a COPS Event record is not an administrative function.[17]
The Tribunal cited the Tribunal in HW v Police on compartmentalisation, division, Police Act functions, core responsibilities, and reading down ‘administrative’ and said the Appeal Panel in Police v YK had endorsed it![18]
The Tribunal cited paragraph [20] from Police v YK, but not, however, paragraph [17]’s express rejection by the Appeal Panel of the core function test. The Tribunal applied the core function test by the means of citing as correct other Tribunals (including the Tribunal in AEZ) that had applied it. The Tribunal said s 27 applied and, “As a result EEQ’s application must be dismissed”.[19]
Police functions
The Police Act says, it is a function of the NSW Police Force “to exercise any other function conferred on it by or under this or any other Act” (s 6(2)(b)).
The State Records Act 1998 (NSW) confers on the Police the function to “make and keep full and accurate records of the activities of the office”.
The Government Information (Public Access) Act 2009 (NSW) confers on the Police the function of deciding access applications for government information (information contained in a record held by an agency).
The PPIP Act confers on the Police the functions of providing individuals with access to their information (s 14), and amending personal information it holds to ensure that the information is accurate, relevant, up to date, complete and not misleading (s 15).
(In each of the above four Acts to ‘exercise a function’ includes to ‘perform a duty’.)
Administrative functions
The functions referred to above are administrative functions according to the natural and ordinary meaning of the word ‘administrative’ when used in the context of the police.
The High Court said, “making entries into police databases, returning the appellant’s property, photographing him and taking DNA samples” were administrative tasks: Carr v The State of Western Australia [2007] HCA 47 (23 October 2007), [23].
The NSW Court of Appeal indicated that administrative tasks are ancillary to investigative and preventative processes: Cran v State of New South Wales [2004] NSWCA 92 (29 March 2004), [71].
The Supreme Court said, bagging and labelling items seized under a warrant are administrative tasks: Regina (C’Wealth) v Baladjam & Ors [No 46] [2008] NSWSC 1465, [23].
Furthermore, frontline Police officers, the Police Minister, the legislature and parliamentarians understand that the term ‘administrative’ tasks includes post-investigation paperwork and red tape.[20]
No authority
Police v YK is not an authority for anything. It doesn’t support that the core/non-core division devised by the Tribunal in HW prescribes a legal test and it cannot be an authority for reading down the meaning of administrative functions when it rejected the propositions on which the reading down was based.
Furthermore, no applicable principle of statutory construction supports that the word ‘administrative’ in s 27(2) – a provision that confers important statutory privacy rights on individuals, should be given anything less than its ordinary meaning.
IPPs intended to apply
It’s clear from s 27 that the Legislature did not intend to require the Police to comply with all of the IPPs all of the time.
It’s equally clear, however, that the Legislature did intend to require the Police to comply with the IPPs “in connection with the exercise of their administrative and educative functions”.
S 15 of the PPIP Act’s requirement to, “make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information … is accurate, and … is relevant, up to date, complete and not misleading …” is an administrative function within the ordinary meaning of the word ‘administrative’ and the IPPs do, therefore, apply to the Police in connection with the exercise of that function.
[1] The Australian Concise Oxford Dictionary (2nd ed) (1992) Oxford University Press, ‘sophistry'(def 1), ‘sophism’.
[2] Cran v State of New South Wales [2004] NSWCA 92 (29 March 2004), [73], “[T]here 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.”
[3] [25]-[30].
[4] [17]-[18].
[5] [23]-[33].
[6] [23].
[7] Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 (27 November 2008), [15].
[8] [17]-[20].
[9] HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 (10 September 2003), [28].
[10] AEC v NSW Police Force [2013] NSWADT 32 (7 February 2013), [28-30].
[11] Cavallaro v Commissioner of Police [2020] NSWCATAD 132 (14 May 2020).
[12] EFR v Commissioner of Police [2020] NSWCATAD 159 (23 June 2020).
[13] [11].
[14] [13]-[14].
[15] [15].
[16] [16]-[20].
[17] [7].
[18] [35]-[36].
[19] [36]-[42].
[20] See, 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).
The Ombudsman reported to Parliament on the Crimes Legislation Amendment (Penalty Notice Offences) Bill, which was partly inspired by the suggestions of front line police officers (p 59). The Bill had a primary objective of achieving administrative savings for police and the courts (p 93) 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” (p 23).
The Report says, “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” (p 59).
NSW Police said legislation provided administrative savings and was an efficient alternative to charging offenders that minimised post-investigation time (p 95).
