Rothfield v Office of the Australian Information Commissioner

Relevant legislative provisions 5 Part VIIC of the Crimes Act deals with "pardons, quashed convictions and spent convictions". Division 3 of pt VIIC contains what the parties referred to in their respective submissions (and at the hearing of the application) as "the spent convictions scheme". That division relevantly reads as follows: Division 3 - Spent convictions 85ZV Spent convictions (1) Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, if a person's conviction of a Commonwealth offence or a Territory offence is spent, the person is not required: (a) in any State or Territory - to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or (b) in a foreign country - to disclose to any Commonwealth authority or State authority in that country, for any purpose, the fact that the person has been charged with, or convicted of, the offence. (2) Subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person's conviction of a State offence or a foreign offence is spent, the person is not required: (a) in any Territory - to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or (b) in any State or foreign country - to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence. (3) Subject to Division 6, but despite any other Commonwealth law or any Territory law, where: (a) a person was convicted of a State offence; (b) subsection (2) does not apply to the person in relation to the offence; and (c) under a law in force in that State, being a law dealing with the disclosure or taking into account of spent convictions (however described in that law) it is lawful for the person, in particular circumstances or for a particular purpose, not to disclose the fact that the person was charged with, or convicted of, the offence; the person is not required, in corresponding circumstances or for a corresponding purpose: (d) in a Territory - to disclose the fact that the person was charged with, or convicted of, the offence; or (e) in a State or foreign country - to disclose that fact to any Commonwealth authority in that State or country. 85ZW Effect of right of non‑disclosure Subject to Division 6, but despite any other Commonwealth law, or any State law or Territory law, where, under section 85ZV, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence: … (b) anyone else who knows, or could reasonably be expected to know, that section 85ZV applies to the person in relation to the offence shall not: (i) without the person's consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or (ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence. 6 Mr Rothfield's complaint centres upon s 85ZW(b), which prohibits certain disclosures of a person's spent conviction without that person's consent. Section 85ZM addresses when a conviction is to be regarded as "spent". It provides as follows: 85ZM Meaning of conviction and spent conviction (1) For the purposes of this Part, a person shall be taken to have been convicted of an offence if: (a) the person has been convicted, whether summarily or on indictment, of the offence; (b) the person has been charged with, and found guilty of, the offence but discharged without conviction; or (c) the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence. (2) For the purposes of this Part, a person's conviction of an offence is spent if: (a) the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or (b) the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended. 7 Subdivision B of div 6 of pt VIIC of the Crimes Act sets out various exclusions to the operation of div 3 (including s 85ZW(b)). Of present relevance is s 85ZZH(c), which reads as follows: 85ZZH Exclusions Division 3 does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body: … (c) a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing; … 8 Division 5 of pt VIIC confers upon the OAIC functions in relation to the investigation and attempted settlement of complaints about acts in contravention of divs 2 or 3 of that part. The relevant sections of div 5 are set out below: 85ZZA Complaints to the Information Commissioner (1) A person may complain to the Information Commissioner about an act or practice of another person or of a Commonwealth authority or State authority that may be a breach of Division 2 or 3. (2) A complaint shall be in writing. (3) It is the duty of members of the Information Commissioner's staff to give appropriate help to a person who wishes to make a complaint and wants help to formulate the complaint. (4) The complaint shall specify the respondent to the complaint. … 85ZZC Investigation of complaints (1) The Information Commissioner shall consider a complaint, and shall investigate the act or practice complained of, if the act or practice may be a breach of Division 2 or 3. (2) The Information Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made if satisfied that: (a) the act or practice is not a breach of Division 2 or 3; … 9 For present purposes, it is not in contest that Mr Rothfield's complaint concerning the VCA Reasons was validly made under s 85ZZA of the Crimes Act.

decision under review 10 Mr Rothfield's complaint concerning the VCA Reasons was made by email on 17 February 2018. That email attached a letter that set out Mr Rothfield's allegations against the Victorian Court of Appeal, as well as copies of correspondence between Mr Rothfield and various of that court's staff in relation to his allegations. 11 On 31 May 2018, an investigations officer in the employ of the OAIC wrote to Mr Rothfield to advise him of her view that the Victorian Court of Appeal had not breached Part VIIC of the Crimes Act, and to provide Mr Rothfield an opportunity to comment before a final decision was made in respect of his complaint. On 25 June 2018, Mr Rothfield provided further submissions to the investigations officer. 12 The investigations officer then made the OAIC Decision (being the decision presently under review) on or around 9 July 2018, which was conveyed to Mr Rothfield by correspondence bearing that date. The OAIC Decision commenced by stating that "…the information provided has not changed our view that the [Victorian] Court [of Appeal] has not breached Division 3 of Part VIIC of the Crimes Act". It then summarised Mr Rothfield's allegations, namely that the Supreme Court of Victoria had breached pt VIIC of the Crimes Act by publishing the VCA Reasons. 13 The OAIC Decision conveyed the view that, by reason of s 85ZZH(c) of the Crimes Act, div 3 of pt VIIC did not apply to courts and tribunals in relation to the making of decisions, including decisions about sentencing. That exclusion, it was said, was not restricted to decisions about a particular individual (as Mr Rothfield had argued), but was of general application. 14 Given that Mr Rothfield had, in his submissions to the OAIC, referred to and relied upon a report by the Australian Law Reform Commission (the "ALRC") into spent convictions, the OAIC Decision highlighted that the ALRC recommendations differed from the legislation that was ultimately introduced into the Crimes Act. That being so - and given that there was no ambiguity in the terms of s 85ZZH(c) - the OAIC Decision stated that Mr Rothfield was not assisted by the fact that the ALRC report had considered and, indeed, proposed more restrictive provisions, including a narrower exclusion. 15 The Decision also set out the OAIC's view that the meaning of "conviction" in s 85ZM of the Crimes Act did not extend to the range of circumstances outlined by Mr Rothfield. In that regard, the OAIC Decision remarked "[a] statement of the existence of conduct that may be an offence does not equate to there being a charge or conviction in relation to that conduct, or to the offence having been taken into account in sentencing where there is no finding of guilt". In other words, the OAIC Decision set out the OAIC's view that, even if the Victorian Court of Appeal were not excluded from div 3 of pt VIIC by reason of s 85ZZH(c), nothing in the VCA Reasons offended against s 85ZW of the Crimes Act in any event. 16 Accordingly, the Decision concluded by informing Mr Rothfield that the OAIC had decided in accordance with s 85ZZC(2)(a) of the Crimes Act not to investigate his complaint further.

hearing 17 Several years passed between the filing of Mr Rothfield's originating application and the hearing of the matter. Mr Rothfield has been overseas and was unable to return to Australia due to border closures or other limitations imposed in response to the COVID-19 pandemic. There were also considerable delays in complying with standard procedural directions. Notwithstanding those difficulties, the hearing ultimately took place via remote means on 13 September 2021. 18 At the hearing, the respondent read an affidavit sworn on 12 April 2019 by its solicitor, Kyriaki Katie Amanatidis, to which was exhibited the relevant correspondence between the OAIC and Mr Rothfield in relation to his complaint, including the OAIC Decision. There was no evidential conflict and Mr Rothfield did not lead any evidence of his own. 19 At the conclusion of the hearing, the applicant requested that a suppression order be made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act") to prevent his identification as the applicant from being published. The court resolved to grant orders on an interim basis under ss 37AI of the Federal Court Act and to consider the broader issue of suppression in the context of these reasons. That topic will be returned to at the conclusion of these reasons.

the application 20 The originating application filed by Mr Rothfield sets out a single ground of review: namely, that "[t]he OAIC failed to properly exercise its functions under sections 85ZZ, 85ZZC, and, potentially, other sections of the Crimes Act 1914". By his written and oral submissions, however, Mr Rothfield advanced five grounds of review of the OAIC Decision, the particulars of each of which are explored below.

Ground 1: disclosure of conviction 21 In the interests of Mr Rothfield, it is unnecessary to set out the observations of the Court of Appeal with which he took issue. It suffices to note that the Court of Appeal did not attribute to him any criminality, did not suggest that he had been convicted of any offence, and did not suggest that he had been arrested or charged with an offence. 22 Mr Rothfield says that it is enough to refer - as the VCA Reasons did - to conduct that might be associated with criminal wrongdoing. As has been rehearsed, s 85ZM(1) of the Crimes Act sets out the circumstances in which a person is taken to have been convicted of an offence for the purposes of pt VIIC. They include that: (a) the person has been convicted, whether summarily or on indictment, of the offence; (b) the person has been charged with, and found guilty of, the offence but discharged without conviction; or (c) the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence. 23 If none of those circumstances applies, it follows that there can be no "conviction" in respect of which the spent convictions scheme might apply. Mr Rothfield argues that the VCA Reasons, fairly read, imply that he played some part in a criminal enterprise, such that they should be read as a reference to his having been convicted of an offence. That submission cannot be sustained. On any reading (and as just recited), the Reasons do not refer to Mr Rothfield having been convicted of or charged with an offence; and there was no suggestion that the circumstances set out at (c) above were satisfied. The references to Mr Rothfield in the VCA Reasons are simply not captured by any of the circumstances set out in s 85ZM(1) of the Crimes Act. There being no reference in the VCA Reasons to a relevant "conviction" in relation to Mr Rothfield, this ground must fail.

grounds 2 and 3: failure to assist and failure to conciliate 24 The second and third grounds of Mr Rothfield's application are, to an extent, interlinked. By the second ground of his application, Mr Rothfield alleges that the OAIC failed to provide him with reasonable assistance in formulating his complaint; and, by the third ground, Mr Rothfield alleges that the OAIC failed to conciliate the dispute between him and the Victorian Court of Appeal. 25 As to the reasonable assistance that the OAIC failed to provide, Mr Rothfield asserts that the OAIC should have advised him to make his complaint under the Privacy Act 1988 (Cth) (hereafter, the "Privacy Act") as well as the Crimes Act. Mr Rothfield asserts that he would have heeded that advice and would have thereby been availed of s 40A of Privacy Act, which provides for the conciliation of complaints in circumstances where "the Commissioner considers it is reasonably possible that the complaint may be conciliated successfully": s 40A(1)(b). Had that occurred, Mr Rothfield argues that there could have been no doubt that the OAIC would have been obliged to conciliate his complaint. 26 Properly understood, the substance of these grounds of challenge is that the OAIC failed to identify for Mr Rothfield the fact that the Privacy Act provided an alternative avenue for the making of his complaint, thereby potentially depriving him of an avenue to have that complaint conciliated (in particular, under s 40A of the Privacy Act). By that failure to assist Mr Rothfield and by its decision not to make any attempt to conciliate his dispute with the Victorian Court of Appeal, Mr Rothfield alleges that the OAIC failed to carry out its statutory duty. 27 Mr Rothfield's submissions on these grounds read as follows: 2. …the argument by the AGS that the OAIC was not obliged to conciliate the complaint cannot be sustained. The Privacy Act, 1988 (Cth) (Privacy Act) stipulates that the OAIC must make reasonable and legitimate attempts to conciliate complaints. 3. The Privacy Act was relevant to my complaint because it is invoked under section 85ZZG of the Crimes Act. In fact, section 85ZZG of the Crimes Act stipulates that a spent convictions complaint that is made under the Crimes Act should be treated as though the complaint had been made under subsection 36(1) of the Privacy Act. This is the plain English interpretation of section 85ZZG (1). 4. When I was preparing my complaint, I sought assistance from the OAIC, but such assistance was not forthcoming. The OAIC did not help me to formulate my complaint. 5. Section 85ZZA of the Crimes Act stipulates that it is the duty of members of the Information Commissioner's staff to give appropriate help to a person who wishes to make a complaint, and wants help to formulate the complaint. Thus, the OAIC neglected to perform its duties under the Crimes Act. The OAIC ought to have rendered me assistance. 6. The OAIC should have helped me to identify that the Privacy Act would be relevant to my complaint, and that my complaint should have been made under the Privacy Act as well as the Crimes Act. 7. A complaint made under both statutes would have helped to ensure that there would be no reasonable doubt about the applicability of section 40A, the conciliation of complaints, under the Privacy Act. 8. In conclusion, the OAIC ought to have made a legitimate and genuine attempt to conciliate my complaint by facilitating conciliation sessions that would have taken place between the Supreme Court and myself. However, the OAIC singularly failed to make any attempt, and therefore completely failed to carry out its duties and responsibilities under the relevant legislation. 28 When asked during the hearing what assistance he required, Mr Rothfield said that "the Commissioner could have helped me to identify that the Privacy Act would be relevant to my complaint and that my complaint should have been made under the Privacy Act as well as the Crimes Act." 29 True it is that certain provisions of the Privacy Act apply to the spent convictions scheme by reason of s 85ZZG(1) of the Crimes Act. That section provides that "sections 42 to 48 (inclusive) of the Privacy Act, and sections 50, 64 to 68 (inclusive) and 98 of that Act apply…in relation to a complaint as if the complaint had been made under subsection 36(1) of that Act". That is, s 85ZZG(1) of the Crimes Act appropriates certain processes under the Privacy Act to the service of the spent convictions scheme. 30 Mr Rothfield refers to and relies upon s 40A of the Privacy Act. Plainly enough, that section is not invoked by s 85ZZG(1) of the Crimes Act. To the extent Mr Rothfield submits to the contrary, that submission must fail. Rather and as outlined above, Mr Rothfield's argument appears to be that the OAIC should have advised him to make a complaint under s 36 of the Privacy Act (as well as under s 85ZZA of the Crimes Act) with the consequence that he would have then been afforded the possible benefit for which s 40A of the Privacy Act provides. 31 That argument cannot be sustained. 32 Section 85ZZA of the Crimes Act imposes a duty on the OAIC to "give appropriate help to a person who wishes to make a complaint and wants help to formulate that complaint". It is not apparent why the OAIC ought to have formed the view that Mr Rothfield required assistance to formulate his complaint. There is no evidence that he requested help formulating his complaint, and it is unclear what "appropriate help" might have been provided to him. Indeed, Mr Rothfield's complaint, as made to the OAIC on 18 February 2018, was clear. It was well understood by the OAIC and it was handled accordingly. The OAIC did not fail to carry out its statutory duty on that front. 33 Further, Mr Rothfield's claim that he was deprived of an avenue to have his complaint conciliated by reason of the OAIC's failure to advise him to make the complaint under the Privacy Act must be rejected. First, a similar avenue for conciliation exists in connection with the spent convictions scheme: s 85ZZ(1)(a) of the Crimes Act provides the Commissioner with the function, "where the Commissioner considers it appropriate, to try, by conciliation, to effect a settlement of the matters that gave rise to the investigation". However, the Commissioner was permitted to not conciliate the dispute if she did not consider that conciliation was appropriate. Plainly enough, that was the view that the OAIC formed. 34 Additionally, even if Mr Rothfield were able to avail himself of s 40A of the Privacy Act, it is difficult to see how that section would have provided him with the benefit for which he contended. Section 40A of the Privacy Act is in similar terms to s 85ZZ(1)(a) of the Crimes Act and the obligation to which it gives voice is subject to similar exclusions: Privacy Act, s 41. It is not clear why it should be thought that the OAIC, having taken the view that it should summarily opt against conciliating a dispute under the Crimes Act, might nonetheless form the opposite view in connection with an equivalent process pursued under the Privacy Act. 35 Mr Rothfield's submissions on this topic are, in any event, not to the point. To found an entitlement to the relief that he seeks, Mr Rothfield needs to establish that the OAIC Decision was made in a way that the Crimes Act prohibits or does not authorise (for example, because it was premised upon an irrelevant consideration or a failure to take account of a mandatory consideration). It is to be recalled that the OAIC Decision was made under s 85ZZC(2)(a) of the Crimes Act. The existence of jurisdiction to make a decision under that section does not turn upon whether or not the Commissioner properly assisted Mr Rothfield or properly formed a view that his complaint was unworthy of conciliation (whether under s 85ZZ(1)(a) of the Crimes Act or s 40(1)(b) of the Privacy Act). 36 Accordingly, each of grounds 2 and 3 must fail.

ground 4: constitutional issue 37 Mr Rothfield, in both his written and oral submissions, asserts that the OAIC had advised him that a constitutional issue might arise in relation to his complaint, specifically in relation to the Commonwealth's power to regulate a state Supreme Court. That potential issue, he says, was mentioned to him orally by a representative of the OAIC, but was never properly explained to him in any of his subsequent dealings with the OAIC. 38 Mr Rothfield's submission was to the effect that the OAIC's failure to explain the potential constitutional issue to him amounted to a "serious procedural lapse", and that the existence of that supposed issue might have influenced the OAIC to make the Decision in the way that it did. Respectfully, it is unclear how that might be so. In fairness to Mr Rothfield, he could not be in a position to explain how any potential constitutional issue might have borne upon the making of the OAIC Decision, given that that issue (if there was one) was never explained to him. In any event, it was asserted that the OAIC's failure to illuminate the existence of the potential constitutional issue infected its decision in a way that the court can now correct upon judicial review. 39 That submission cannot succeed. There is no evidence of what Mr Rothfield was told, or was not told, by representatives of the OAIC. Assuming that there was a representation about the potential existence of a constitutional issue, it appears not to have been of any moment. The OAIC Decision makes no reference to any constitutional limitation. It cannot now be inferred that any such constitutional issue or limitation played any role in the making of the OAIC Decision. In any event, it is not clear how the existence of any constitutional issue could bear upon Mr Rothfield's application - that is, how or why the existence of such an issue could vitiate the OAIC Decision, or the jurisdiction of the OAIC to make it, in a way that might attract prerogative relief on judicial review.

ground 5: statutory misconstruction 40 By the final ground of his application, Mr Rothfield asserts that the exclusion in s 85ZZH(c) of the Crimes Act only applies to decisions about people to whom Part VIIC affords protection. That is, he suggests that the exclusion only applies to a court or tribunal insofar as it makes a decision (including a sentencing decision) about a person who has a spent conviction. The VCA Reasons do not concern a decision about Mr Rothfield. Rather, they concern the sentencing of others. Mr Rothfield's submission is that, because the decision to which those reasons relate is not about him, the exclusion in s 85ZZH(c) of the Crimes Act does not apply. To the extent that the OAIC construed that provision differently, Mr Rothfield asserts that it did so in error, which this court should correct on review. 41 By his written submissions, Mr Rothfield says: The Supreme Court (or the Court of Appeal) has never made a decision or judgement about me. There is therefore no basis upon which the Court could be exempt from the operation of Division 3 of part VIIC of the Crimes Act. Thus, even following the logic that has been set out in the statement by Ms Gregory, the exclusion under section 85ZZH(c) cannot be applied within the context of my complaint. The Court is not exempt from the operation of Division 3 because it is not, (and was not), passing judgement about me, and it is not, (and was not), ruling on a sentence about me. 42 In support of that contention, Mr Rothfield refers to the report of the ALRC into spent convictions, which was published prior to the introduction of s 85ZZH(c) of the Crimes Act. In short, Mr Rothfield relies on the recommendations of the ALRC report in support of the narrow interpretation of s 85ZZH(c) that he now advances. 43 Mr Rothfield's submission can swiftly be dealt with. It is clear that the exclusion provided by s 85ZZH(c) of the Crimes Act is broader than Mr Rothfield would have it. In Toohey v Tax Agents' Board of Victoria [2007] FCA 431 at [30], Middleton J explained that s 85ZZH(c) of the Crimes Act "…is of general import, and does not just apply where a Tribunal is making a determination specifically referred to it in relation to a conviction, or where it is otherwise bound to take in to account a conviction": see also Degning v Minister for Home Affairs (2019) 270 FCR 451, 469 [68] (Thawley J, Allsop CJ and Collier J relevantly agreeing). 44 Further, s 85ZZH(c) is plainly expressed in terms broader than the proposals contained in the ALRC report. There is no ambiguity to the provision, and resort to the ALRC report is unnecessary. The ALRC's proposals were not adopted. According to the clear terms of s 85ZZH(c), the Victorian Court of Appeal is not bound by s 85ZW(b) of the Crimes Act. Even assuming that the VCA Reasons did associate Mr Rothfield with some suggestion of criminality, the Court of Appeal was under no obligation not to. There was no relevant misunderstanding on the part of the OAIC as to how the statutory scheme operated.

conclusion 45 The Decision made by the OAIC under s 85ZZC(2) not to investigate, or not to investigate further, Mr Rothfield's complaint was open to be made on the material before it. Mr Rothfield cannot establish any error that might suffice to vitiate the exercise of the OAIC's jurisdiction in that regard. The application will, therefore, be dismissed, with the usual order as to costs.

suppression 46 As foreshadowed earlier in these reasons, Mr Rothfield seeks an order to prohibit the publication (including by means of these reasons) of information that might tend to identify him as the applicant in this matter. 47 By his written submissions, Mr Rothfield stated as follows: 16. Publication of an applicant's name and identifying details is inimical to the interests of the applicant and other persons who rely on the protections afforded by the Commonwealth spent convictions scheme, as well as the Privacy Act 1988 (Cth), and Australian Privacy Principles 17. Publication of the applicant's name and identifying details would result in undesirable outcomes, and would normally act as a deterrent to any application for review being made in the first instance. Thus, if an applicant cannot rely on a suppression order to maintain the protections that are available under the Commonwealth spent convictions scheme, then the applicant will be unwilling to initiate an application for review in the first place. 48 Mr Rothfield's difficult position must be acknowledged. He cannot move to protect his asserted right to have the VCA Reasons withdrawn (or to have his name removed from them) pursuant to the spent convictions scheme unless he pursues the present application; but, by pursuing this application, he risks being exposed as a person that claims to be owed protections under pt VIIC of the Crimes Act. 49 If, contrary to what appears above, I were to have formed the view that Mr Rothfield was entitled to the relief to which he laid claim, I might more readily have entertained on a permanent basis the relief that I granted on an interim basis (at the conclusion of the hearing) under s 37AI of the Federal Court Act. To do so would seem necessary to preserve the utility of the relief claimed. As it is, though, Mr Rothfield's substantive claims must fail for the reasons that I have set out. 50 I confess some sympathy for Mr Rothfield's predicament. Nonetheless, in light of the failure of his substantive claim, I do not consider that his circumstances suffice to enliven any of the bases upon which the court might entertain an order for suppression under s 37AF(1) of the Federal Court Act. The suppression of information that might identify him as the applicant in the present proceeding is not necessary to prevent prejudice to the administration of justice. In that regard, the word "necessary" bears repeating. It is "a strong word" that requires more than that an order be "…convenient, reasonable or sensible, or…serve some notion of the public interest": Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [30]-[31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). Embarrassment, inconvenience and annoyance will generally not suffice to enliven the court's power: ACCC v Cascade Coal Pty Ltd & Ors (2015) 331 ALR 68, 74 [30] (Foster J). 51 There is no proper basis upon which the court might depart from the usual principles of open justice. Accordingly, the interim orders of 13 September 2021 will be discharged and no further order will be made under s 37AF of the Federal Court Act. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.