CTU v NSW Police Force

Background

1. The applicant was convicted and sentenced to imprisonment for nine months in April 2005. The sentence was suspended upon the applicant entering into a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The bond period expired without the applicant reoffending.
2. In February and July 2015, the applicant was issued with a National Criminal History Check and a National Police Certificate respectively, each showing the conviction. It was not in dispute that the NSW Police Force provided information about the applicant's conviction to third parties for the purposes of the National Criminal History Check and National Police Certificate.
3. The applicant applied to the NSW Police Force for internal review, under the Privacy and Personal Information Protection Act 1998 (NSW) ("PPIP Act"), in August 2016. He alleged in his internal review application that the NSW Police Force released irrelevant or excessive personal information to CrimTrac and/or the Australian Federal Police. He referred to the release of information about his conviction to agencies conducting national criminal history checks. He said his conviction was a spent conviction so that the records produced, showing that conviction, were incorrect or irrelevant.
4. It is not entirely clear from the internal review application which information protection principles are alleged to have been engaged. The application for internal review may have been, on its proper construction, an application for review of a decision to refuse the applicant's request to make appropriate amendments to his personal information to ensure that the information is relevant, up to date, complete and not misleading (PPIP Act, s 15(1)). It may also have been an application for review of an alleged failure to check that the applicant's personal information was relevant, accurate, up to date, complete and not misleading before using it (PPIP Act, s 16). Given the conclusion I have reached, it is not necessary to decide this.
5. In its internal review, the NSW Police Force found that the applicant's conviction was not spent and that the NSW Police Force was therefore complying with the information protection principles.
6. The applicant applied to this Tribunal, within 28 days of being notified of the result of the internal review, for a review of the conduct of the NSW Police Force (see PPIP Act, s 55(1); Administrative Decisions Review Act 1997 (NSW), s 55; Civil and Administrative Tribunal Rules 2014 (NSW), r 24(4)(a1)).

Is the NSW Police Force bound by the information protection principles?

1. The NSW Police Force submitted that it was not required to comply with the information protection principles, relying upon s 27 of the PPIP Act.
2. Section 27 provides, relevantly: 27 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, NSW Police Force, PIC, Inspector of PIC and Inspector's staff and NSW Crime Commission) (1) Despite any other provision of this Act, … the NSW Police Force, … [is] 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 [its] administrative and educative functions.
3. The applicant submitted that the provision of criminal records to members of the public was an administrative function. He said that when the NSW Police Force's community policing and protection role was not engaged, as it was not engaged in this case, the function of conducting criminal record checks was administrative. He submitted as follows: "It is a criminal record check event, which has a different character entirely that might be described as ossified administrative work. Typically, a job applicant with reason to believe they have a clear record authorises an NCHC through an Accredited Organisation of the National Police Checking Service ("NPCS") such as First Advantage. A database manager, such as CrimTrac (now the Australian Criminal Intelligence Commission) or the AFP performs a National Names Index ("NNI") search, and if there is a positive indication it results in a second stage manual records check by the relevant police force administration, in this case agents or employees within the Criminal Records Section of the NSWPF. Manual check of criminal records regarding ten-year old convictions, so could only be reasonably characterised using the predominant purpose test as relating to, or having a nexus with its administrative and educative functions, not to the exercise of its criminal law enforcement functions."
4. The NSW Police Force did not challenge this account of the process of criminal record checks; however, it submitted that the provision of a criminal record check to members of the public was not in connection with its administrative functions, so that s 27(2) of the PPIP Act did not apply. It said that the starting point was to determine the functions of the NSW Police Force, by reference to s 6 of the Police Act 1990 (NSW). It said that its functions of providing a criminal record check to a member of the public belonged to one or more of its community protection functions under s 6(3)(b) of the Police Act (relying upon cases including Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 at [21]). It submitted further that, when corporate services areas performed functions such as personnel, budget and information technology, these were administrative functions, but when the NSW Police Force shared information with members of the public, this was a public function which was not administrative.
5. I do not accept the NSW Police Force's submission that the starting point is whether or not providing a criminal record check falls within its community protection functions under the Police Act. The question is simply whether the function of providing a criminal record check is properly described as "administrative." As the Appeal Panel of the former Administrative Decisions Tribunal ("the ADT Appeal Panel") observed in Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 at [20], the starting point is that all of the functions of the NSW Police Force are excluded and the question is "whether the activity is brought back under the regulation of the [PPIP] Act because it belongs to the 'administrative' or 'educative' services of the Police Force." The ADT Appeal Panel has acknowledged in a later decision that functions vested in the NSW Police Force under s 6(2)(b) of the Police Act may fall outside the immunity conferred by s 27 of the Privacy Act, such as functions connected with security and firearms licensing (AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 at [25]).
6. The distinction the NSW Police Force sought to draw between the functions of its "corporate services areas" and its information-sharing functions, being "public functions," is unhelpful. This is because that distinction does not address the question of whether a function is administrative. There is nothing in the text of the Act which indicates that an administrative function is one limited to the corporate services area, or that it could not include a "public function." Whilst the Administrative Decisions Tribunal referred to corporate services areas performing certain functions as an example of administrative functions (see HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214 at [30] and Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 at [20]), the respondent has sought to create a dichotomy between those functions and "public functions" or information-sharing functions which is not warranted by the text of the legislation.
7. In accordance with the principles of statutory interpretation, the word "administrative" in s 27(2) of the PPIP Act is to be given its ordinary meaning, or its "commonly understood meaning," unless the context indicates that some other meaning was intended (see, for example, Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7, (2017) 91 ALJR 369 at 398 [91]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, (2016) 91 ALJR 177 at 186 [34]). The word "administrative" is defined in the Macquarie Dictionary as follows: "relating to administration; executive: administrative ability; administrative problems." The word "administration" has many meanings but its primary meaning, according to the Macquarie Dictionary, is "the management or direction of any office or employment."
8. In my view, the provision of criminal history information to a third party for the purposes of a National Criminal History Check or a National Police Certificate, where this is done as part of a routine application, is an administrative function according to the ordinary meaning of the term. On the factual information before me, which I accept, persons may apply to the NSW Police Force for a National Police Check online and may generally receive one upon paying a fee. The processing of such an application is an administrative function, applying the ordinary meaning of "administrative" referred to above. The processing of an application for a criminal records check is also of an administrative nature. In both cases, the administrative functions of the NSW Police Force are exercised. To use the terms of s 27(2) of the PPIP Act, the processing of both is "in connection with" the administrative functions of the NSW Police Force, noting the breadth of the phrase "in connection with".
9. The NSW Police Force relied upon the ADT Appeal Panel case of AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 for its contention that the function of handling criminal records information was not administrative. In that case, the police had disclosed information about a spent conviction of AEC to his ex-partner in the course of Local Court proceedings in which AEC's ex-partner sought an Apprehended Violence Order and AEC was charged with assault. At first instance, the ADT had made the following comment (AEC v NSW Police Force [2013] NSWADT 32 at [29]): The Appeal Panel approved paragraph [30] of HW v Commissioner of Police, New South Wales Police Service and anor [2003] NSWADT 214('HW') where the Tribunal considered an activity may be characterised as administrative, depending on its context: "The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime [and is not considered an administrative function], while in other instances they are done administratively, for example for background checks on prospective employees."
10. The Tribunal found (at [30]) that "dealings with the applicant's criminal records in this matter could not be characterised as administrative". The ADT Appeal Panel rejected AEC's argument that the Tribunal erred in this respect, referring to the facts of the case and then finding that the Tribunal "properly applied the provision to the facts before it" (AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 at [29]).
11. The facts of AEC are clearly distinguishable from those of the present case. AEC involved a situation where the Police disclosed information about a person's criminal history in the course of proceedings for an apprehended violence order (or perhaps for the purposes of the assault proceedings). The disclosure was not done as part of any routine processing of a criminal history application or similar; rather it was in the context of court proceedings involving an alleged crime. The provision of criminal history information in a routine way when an individual completes a form is of a more administrative nature. Consistently with what was said in AEC, the context in this case requires a different result.
12. The Privacy Commissioner appeared and was heard in the proceedings pursuant to s 55(6) of the PPIP Act. Whilst not advocating that the Tribunal come to a particular conclusion in this case, Mr Yetzotis, for the Privacy Commissioner, referred to the ADT decision in HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214 at [30], where the Tribunal said: "The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime, while in other instances they are done administratively, for example for background checks on prospective employees." As Mr Yetzotis submitted, this passage has been referred to with approval in Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 at [14] and [20] and AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91 at [14]. It supports my conclusion that the NSW Police Force was exercising administrative functions when dealing with the applicant's National Criminal History Check and National Police Certificate.
13. For these reasons, I find that s 27(2) of the PPIP Act applies in the circumstances of this case and the NSW Police Force is bound to comply with the information protection principles.

Is the applicant's conviction spent?

1. The substantive issue in these proceedings is whether the applicant's conviction is spent. If it is not spent, the applicant's claim that his personal information is incorrect or out-of-date is without substance.
2. Pursuant to s 7(1) of the Criminal Records Act 1991 (NSW), all convictions are capable of becoming spent except, relevantly, convictions for which a prison sentence of more than 6 months has been imposed (s 7(1)(a)).
3. The applicant claims that s 7(1)(a) of the Criminal Records Act does not apply, because his sentence was suspended subject to a good behaviour bond. He submitted that a "prison sentence" had not been imposed because the sentence was not custodial; he noted that the definition of "prison sentence" in s 7(4) did not include a sentence the subject of an intensive correction order or the detaining of a person under a control order. Accordingly, it was submitted for the applicant, a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act did not impose a custodial term, but suspended it.
4. In the alternative, the applicant argued that the sentence was a good behaviour bond with conditions which had become spent pursuant to s 8(4) of the Criminal Records Act.
5. I accept the respondent's submissions that the conviction is not capable of becoming spent, as it is a conviction to which s 7(1)(a) of the Criminal Records Act applies. Section 7(1)(a) exempts from convictions which may become spent "convictions for which a prison sentence of more than 6 months has been imposed." The word "imposed" may be contrasted with the word "execute", a variant of which is found in s 12 of the Crimes (Sentencing Procedure) Act. That provision gives a court power to suspend "execution of the whole of the sentence" for a period (s 12(1)(a)).
6. In Amado v R [2011] NSWCCA 197 at [4], Basten JA made the following comment about s 12 of the Crimes (Sentencing Procedure) Act: Two features of this provision are immediately apparent: first, what is suspended is not the sentence, but the "execution" of the sentence and, consequentially, s 12 cannot operate unless the Court imposes a sentence of imprisonment. Logically, suspension is therefore seen as dependent upon an earlier step in the process, namely the imposition of a sentence of imprisonment.
7. Consistently with his Honour's comments, I find that the Local Court "imposed" a sentence of nine months upon the applicant, then suspended the execution of that sentence. It follows that the applicant's conviction is one which is not capable of becoming spent, pursuant to s 7(1)(a) of the Criminal Records Act.
8. I do not accept the applicant's submission that the definition of "prison sentence" excludes non-custodial sentences generally; rather, it excludes from the definition only "a sentence the subject of an intensive correction order" and "the detaining of a person under a control order." As the sentence in this case was a sentence of imprisonment (albeit suspended), it is a "prison sentence" according to the ordinary meaning of those words.
9. Section 8 of the Criminal Records Act does not affect the operation of s 7(1)(a); rather it provides for the circumstances in which a conviction, which is capable of becoming spent, becomes spent. I am not satisfied that s 8(4) applies on its terms, even if I am wrong about the application of s 7(1)(a). I accept the respondent's submission that s 8(4) applies only where a person is guilty but the court does not proceed to conviction under s 10(1) of the Crimes (Sentencing Procedure) Act. There is no reference in s 8(4) to a person being sentenced to imprisonment and the better construction is that it applies when, instead of imposing a custodial sentence, the court makes an order discharging or releasing an offender subject to a good behaviour bond (or another order referred to in that provision). In any event, as indicated already, the purpose of s 8 is to determine when a conviction is spent, not whether a conviction may become spent.
10. The applicant relied upon a number of cases to support his argument that his conviction was spent. First, he relied upon Waterman and Minister for Immigration and Border Protection [2014] AATA 939, a federal case. In that case, the Administrative Appeals Tribunal remarked that the conviction of a person who was sentenced to a twelve-month good behaviour bond over ten years ago was "spent" for the purposes of the Australian Citizenship Instructions (at [16] to [18]). That case has nothing to say about whether the conviction would be spent under the Criminal Records Act 1991 and I note that there was no indication that the person the subject of that case was sentenced to a prison term which was suspended.
11. Secondly, the applicant relied upon Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431. That case was another federal case concerning the spent convictions regime under the Crimes Act 1914 (Cth). Again, it has nothing to say about the regime under the Criminal Records Act 1991 and the facts were relevantly different; the applicant was not subject to a suspended sentence of imprisonment.
12. Finally, the applicant relied upon Re Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424. This also involved the spent convictions regime under the Crimes Act 1914 (Cth) and does not have direct relevance to these proceedings.
13. My conclusion that the applicant's conviction is not spent means that the respondent has not contravened any of the information protection principles as claimed by the applicant. The information about his conviction, which is held and was disclosed by the NSW Police Force, is not incorrect, irrelevant, misleading or out of date.
14. The correct and preferable decision is not to take any action on the matter (Administrative Decisions Review Act, s 63(1); PPIP Act, s 55(2)).

Orders

1. For the reasons given above, I make the following order: 1. The Tribunal decides not to take any action 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 June 2017