3 On 21 February 2003, Mr Smith was charged with a number of criminal offences committed at Melton on 7 December 2002. Whilst in Police custody he was photographed by the Police. A photograph taken in such circumstances is in common parlance referred to as a mug shot.

4 Subsequently, Mr Smith pleaded guilty in the County Court of Victoria to one count of stalking of a woman, abduction and two counts of rape, and one count of intentionally causing injury in relation to another woman. He was sentenced on 18 March 2004 to a total effective sentence of ten years imprisonment with a non parole period of seven years imprisonment. At the time of the conviction, he was aged 24 years and he had no prior convictions. He is currently in Barwon Prison serving his sentence.

5 By letter to the Police dated 25 March 2004, Ms Griffiths, editor of the Leader, requested a photograph of Mr Smith. The letter (omitting personal details ) stated :

I would like to make a Freedom of Information request for a photo of Simon Jacob Smith, 24, formerly of ... He was sentenced to 10 years' jail in the Melbourne County Court last Thursday, March 18, after pleading guilty to charges of abduction, rape, intentionally causing injury and stalking. The charges relate to an incident in Melton on December 7, 2002. A 73-year-old woman was stalked and a 60-year-old woman was raped.

One of our journalists, ... spoke to the rape victim ... .... today. We are running a story about [her] thoughts about the incident. Her name will not be printed in the story.

Please call me on the above telephone number to advise.

6 The request was treated as a request for access to documents under the Freedom of Information Act 1982 (the FOI Act) by the Police, and access was granted by Superintendent Alan Maclean on the same day by enclosing an electronic copy of the photograph after any police identification codes or references had been removed. Superintendent Maclean is Superintendent-in-Charge of the Police's Freedom of Information and Privacy Division and Freedom of Information Officer for the Police.

7 On 30 March 2004, the Leader published an article entitled "Elderly left terrified". It revealed Mr Smith's name and his address (except for the street number) where he lived at the time he was arrested, which I understand was his family home. It also described the nature of Mr Smith's crimes against his two victims, including excerpts from the sentencing judge's remarks at the time of sentencing, and a description by the victims of the adverse effects upon them of the crimes. The article included the photograph of Mr Smith provided by Superintendent Maclean as a result of the FOI request and a photograph of the crime scene.

8 On 28 May 2004, Mr Smith lodged a complaint with the Commissioner pursuant to s 25 of the IP Act. In the complaint he stated that he first became aware that his photograph had been published by the Leader on 31 March 2004 when his parents informed him of the publication. He said that there was no useful Police purpose in the release of the photograph as he had voluntarily contacted the Police and made full admissions relating to the charges, and that the Police had no information that could have led to his arrest without his voluntary provision of that information. He submitted that the article in the Leader subjected him to a process of vilification and daemonisation.

9 In his complaint he stated further that the release and publication of the photograph had caused damage to him by linking his physical appearance to the details of the offences of which he was convicted. Accordingly, his eventual transition back into the community was jeopardised and allowed him to be targeted for future vilification or attack. He said that he had grown up in the local community in Melton and that people who may not otherwise have linked the article to him through lack of familiarity with his name or address now knew clearly who he was from the release and publication of the photograph. Were he to change his address, the photograph would still enable residents of the community to identify him.

10 Mr Smith said that his parents and sister may be subjected to damage by association as they lived and worked in the local community and that his friends and his family had suffered ridicule following publication of the photograph. He said that release of his photograph constituted a breach of the IP Act.

11 The issue for determination is whether the release of Mr Smith's photograph by the Police to the Leader was contrary to or inconsistent with an Information Privacy Principle (IPP) in accordance with s 14 of the IP Act and not exempt under s 13 of the IP Act. This requires a consideration of whether the Police's purported release of the photograph under s 16(2) of the FOI Act resulted in the IP Act having no effect, and whether s 13 of the IP Act provides an exemption to the Police from complying with the IPPs.

12 The following matters do not appear to be in issue :

i

The Police is an organisation to which the IP Act applies by virtue of s 9(1) of that Act.

ii

There is no applicable code of practice in existence by which the Police are bound and which would discharge the Police from complying with an IPP by virtue of s18(1) of the IP Act.

iii

Mr Smith's photograph is personal information as defined in s 3 of the IP Act and was released by the Police to the Leader without his consent in accordance with the Police's practice in relation to release of mug shots to the media. That practice is outlined in paragraph 15 below.

iv Mr Smith was an inmate of Barwon Prison at the time his photograph was released to the Leader and, at all material times, he was readily capable of receiving any notice to be given to him in accordance with s33(3) of the FOI Act.

13 Superintendent Maclean gave the following evidence, which I accept:

i When a request for a mug shot is received by the Police FOI Unit from a media organisation it is released to the organisation if the offender pleads guilty and is sentenced and the police informant (informant) consents, or if the defendant pleads not guilty but is convicted and sentenced, the appeal period has lapsed and the informant consents. If the informant does not consent, the FOI officer's approval is obtained for release of the mug shot.

ii Release of a mug shot is also subject to the discretion of the FOI officer in the particular circumstance and regard is had to such matters as to whether release would identify a victim or children, and whether it is in the community interest from a policing point of view to grant access.

iii Notice is not given by the Police to the person being photographed of the practice of the Police of releasing mug shots to the media.

v

If a decision is made by the Police to release a mug shot to the media, the person the subject of the mug shot is not informed of the decision.

vi

The Police do not apply the provisions of s 33 of the FOI Act when considering a FOI request for a mug shot from a media organisation.

vii

In the present case, Superintendent Maclean followed the Police practice in relation to release of mug shots to the media and formed the view that s16(2) of the FOI Act permitted him to release Mr Smith's photograph to the Leader.

14 At the commencement of the hearing, Mr John Smith, Mr Smith's father, was granted leave to appear for his son. Mr Smith gave evidence by video- link from Barwon Prison and the Police called evidence from Superintendent Maclean. The Commissioner was joined as a party to the proceedings at an earlier Directions Hearing on 19 November 2004 and Ms Versey appeared before me on behalf of the Commissioner.

15 During the course of the proceedings, I ordered that notwithstanding s 146 of the Victorian Civil and Administrative Tribunal Act 1998, the file could not be inspected by any person other than a party to the proceedings without leave of the Tribunal. I made the order to protect material in the file relating to the victims of the criminal acts committed by Mr Smith.

16 The IP Act came into force on 1 September 2001. Section 1 of the IP Act sets out the main purposes of the Act. They include:

(a) to establish a regime for the responsible collection and handling of personal information in the Victorian public sector;

(d) to provide remedies for interferences with the information privacy of an individual;

17 Section 5 sets out the objects of the Act. It states :

(a) to balance the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector;

(b) to promote awareness of responsible personal information handling practices in the public sector;

(c) to promote the responsible and transparent handling of personal information in the public sector.

(1) If a provision made by or under this Act is inconsistent with a provision made by or under any other Act that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.

(2) Without limiting sub-section (1), nothing in this Act affects the operation of the Freedom of Information Act 1982 or any right, privilege, obligation or liability conferred or imposed under that Act or any exemption arising under that Act.

It is not necessary for a law enforcement agency to comply with IPP 1.3 to 1.5, 2.1, 6.1 to 6.8, 7.1 to 7.4, 9.1 or 10.1 if it believes on reasonable grounds that the non-compliance is necessary -

(a) for the purposes of one or more of its, or any other law enforcement agency's, law enforcement functions or activities; or

(d) in the case of the Police force of Victoria, for the purposes of its community policing functions.

20 A "law enforcement agency" is defined in s 3 as including the Police force of Victoria.

21 Section 14 states :

(1) The Information Privacy Principles are set out in Schedule 1.

(2) Nothing in any Information Privacy Principle affects the operation or extent of any exemption arising under Division 2 of Part 2 and those Principles must be construed accordingly.

(3) For the purposes of this Act, an act done or practice engaged in by an organisation is an interference with the privacy of an individual if, and only if, the act or practice is contrary to, or inconsistent with an Information Privacy Principle or an applicable code of practice.

22 Section 15 provides that the IPPs other than IPP 1 and 10 apply to all personal information whether collected by the relevant organisation before or after they became law in Victoria, namely 1 September 2001.

23 Section 16(1) states :

(1) On and from the first anniversary of the commencement of section 15, an organisation must not do an act, or engage in a practice, that contravenes an Information Privacy Principle in respect of personal information collected, held, managed, used, disclosed or transferred by it.

(1) An individual in respect of whom personal information is, or has at any time been, held by an organisation may complain to the Privacy Commissioner about an act or practice that may be an interference with the privacy of the individual.

25 Section 25(2) sets out the circumstances in which a complaint may be made under s 25(1). They include where there is no applicable code of practice in relation to the holding of information by the organisation.

26 Division 2 of Part 5 sets out the procedures after a complaint is made to the Commissioner. Section 39(1)(a) enables the Tribunal to hear a complaint referred to it by the Commissioner under s 29, 32 or 37.

27 Section 43 gives wide powers to the Tribunal in the event it finds a complaint proven. They include the making of an order restraining an organisation from repeating any act or practice the subject of the complaint found to constitute an interference with the privacy of an individual, and an order that a complainant is entitled to a specified amount not exceeding $100,000 by way of compensation. The Tribunal may also find the complaint proven but decline to take any further action.

(1) Ministers and agencies shall administer this Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.

(2) Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

(3)

Where a request by a person other than a person referred to in sub-section (2) is made to an agency or Minister for access to a document containing information relating to the personal affairs of any person (including a deceased person) and the agency or Minister decides to grant access to the document, the agency or Minister (as the case may be) shall if practicable notify the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) of the decision and of the right of appeal against the decision provided by section 50(2)(e) to the person or, in the case of a deceased person, to the person's next-of-kin.

30 Section 50(2)(e) of the FOI Act enables a person to apply to this Tribunal for a review of a decision to disclose a document under s 33(3).

31 Superintendent Maclean gave oral evidence and he also relied on a written statement dated 4 February 2005. He has been the Freedom of Information Officer for the Police since 5 January 2004 and he has been a member of the Police since 1967. He has served in the Uniformed Operations Area, the Criminal Investigation Branch and the Transit Safety Division as District Commander. He has also served as the Acting Chief Superintendent in charge of "K District" Geelong and as the Strategic Services Superintendent for Region 2, which encompassed the entire western portion of the State.

32 In his written statement Superintendent Maclean said :

11. In this case I exercised the discretion available to the Victoria Police under s 16(2) of the FOI Act on the basis that providing the photograph to the newspaper in this instance was "proper" and "appropriate" in the circumstances as it was in the public interest.

12. I considered that the grounds of "public interest" that were appropriate in this case were:

(a) the public was entitled to know the identity of the applicant (including details of his physical appearance) as he had been convicted of very serious offences;

(b) the release of the applicant's photograph would provide a means of enabling members of the public, particularly those persons situated near the crime scene, to feel safer in that this particular criminal had been gaoled and to know that the criminal justice system was working;

(c) the release of the applicant's photograph may have provided an avenue for alerting the victims of other crimes to the applicant's identity;

(d) the release of the applicant's photograph would assist in publicising the workings of the criminal justice system;

(e) the release of the applicant's photograph would involve, as part of the sentencing process, an element of general deterrence to others; and

(f) the release of the applicant's photograph would further the public interest in ensuring that justice was seen to be done in the community.

13. I also considered that in the circumstances, release of the photograph under s 16(2) of the FOI Act, was "proper" and "appropriate" because:

(a) there was no breach of privacy occasioned to the applicant due to his conviction and sentence occurring in open court;

(b) there was no risk of identification of the elderly victims of the applicant's crimes;

(c) the informant has consented to the release of the photograph; and

(d) the release was only done after a formal FOI request by the media outlet.

33 In his statement Superintendent Maclean said that the Police's community policing and law enforcement functions identified in s 13 of the IP Act correlated to the "public interest" grounds referred to in para 12 of his statement.

34 In his viva voce evidence Superintendent Maclean said that the primary purpose of obtaining mug shots was to establish identity. The photograph removed any identification doubts and enabled the Police to investigate future crimes. Quite often the use of such photographs allowed the community to assist the Police and this could be seen every day in Crime Stoppers.

35 When asked how release of Mr Smith's photograph to the media related to the purpose of obtaining the photograph for identity, he said that the crimes committed by Mr Smith were of a serious nature involving elderly people in the community. Release of the photograph must have given some comfort to the community that Mr Smith had been subjected to justice and the community had nothing more to fear. Further, it clearly identified it was that Mr Smith who appeared in open court. It indicated that the law enforcement bodies were working as they were supposed to.

36 He said that release of the photograph made people feel safer because they knew that person had been removed from the community and paid the penalty, and publication of a photograph removed any doubt that anyone else committed the offence. He said that as an off spring, and it may not be in this particular case, there may have some similar incidents in the community and it gave other members of the community an opportunity to say the same thing happened to them.

37 When considering the release of a mug shot, he read the file and had regard to whether there had been a prohibition by the sentencing judge on the publishing of information and whether the informant had other matters in another court which may be prejudiced by the release. He also had regard to the seriousness of the offence and whether the newspaper article related to a live issue. Otherwise he did not take into account the particular circumstances of the offence or the offender.

38 When a request for access to a mug shot is made by the media, he also decides whether it is in the community interest from a policing point of view to grant access. When asked why the public would get more comfort to see the photograph (rather than just a name), he said that if there were any outstanding matters it would allow other members of the community to identify the particular person and it was also a deterrent against other people committing offences.

39 He said that as he was satisfied for the purposes of s 16 of the FOI Act that release fell within the law enforcement function of the Police, he did not have regard to the IPPs. Further, in his view, provided his decision fell within part of the law enforcement function of the Police, it was also a community policing function and the exemption under s 13 of the IP Act applied. When asked what community policing functions meant, he said that the Police could not do the job of policing alone - it involved the community. The Police mixed with the community and asked it to help. By putting information out into the community, the Police could get information in return. This related to the community's perception of feeling safe as well as to its law enforcement functions.

40 In his experience, if a person knew his name was going to be in the paper, it did not deter him but if he knew his picture would be in the paper he would think twice about committing an offence because he would become known to the community as a whole. Deterrence was part of the Police's mission in that its Code of Conduct provided for a safe and orderly society and for the prevention of further offences. One of the issues that had come to light in the present case was that release of Mr Smith's photograph correctly identified the offender rather than another person with a similar name. He agreed he did not know there was an identity issue in that another person had the same name when he released the photograph. Superintendent Maclean said that to his knowledge a person had a right to object to his or her photograph being taken. He did not know if people were informed of this right by Police when they were being photographed.

41 Mr Smith gave evidence that when he was arrested he was taken to the back of the Police station and informed he would have his finger prints taken and if he refused, it would be forcibly done. He was also told he would have his photograph taken. He was not informed he had a right to object to being photographed and he believed it was compulsory. He was not aware of the release of his photograph until he saw it in the Leader. I accept his evidence to this effect.

42 Mr Smith said he was doing the best he could to rehabilitate himself, to get on with his life and raise his son, and that release of the photograph would prevent him doing so. Whenever he went out with his son and family, people would recognise him. He was also concerned about the impact on his family who lived in Melton.

43 He said he had just under five years remaining of his sentence. At the moment he was safe from physical attack from people in the area and his physical safety was not in jeopardy. This would not be the case when he was released. He also felt humiliation at the release of the photograph. He said his son had moved out of Victoria with his mother, as she was concerned there would be repercussions because people knew about him.

44 Mr Smith claimed there had been a breach of IPPs 2, 4, 5 and 10. He relied on broad ranging written submissions. Some of the submissions were not directly relevant to the matters for determination and I put them to one side. The submissions included a reference to a number of newspaper articles which, it was argued, illustrated the confused nature of community policing. It was submitted that Mr Smith's arrest was only possible because of his actions in contacting the Police and making admissions to them, not because the Police had "caught their man". The deterrent factor referred to by Superintendent Maclean was diminished for this reason.

45 It was contended that release of the material was contrary to the provisions of the Victoria Police Manual in paragraph 1 under the heading Policy which states that release of information or documents to the media ... is subject to a number of considerations to ensure that any information released ... does not compromise the privacy ... of a person. It was submitted that the release of the photograph compromised Mr Smith's privacy.

46 In relation to paragraph 12 of Superintendent Maclean's statement, it was submitted that the photograph was not part of the publicly available court records, the media had already given details of his identity, address and convictions so that members of the public might feel safer, release would not have provided an avenue for alerting the victims of other crimes to Mr Smith's identity as he had not committed other crimes, and media reports had already achieved the purpose of publicising the workings of the criminal justice system. It was submitted further that Judge Nixon's sentencing remarks addressed issues of deterrence, punishment and rehabilitation and that the Police were over-stepping the boundaries of their authority in offering amendments or additions to Judge Nixon's findings.

47 It was submitted that Mr Smith could now be identified and targeted because of the real possibility for persons to seek their own retribution and that similarly third parties, such as the applicant's family and associates could also be placed at risk. This was contrary to the Code of Conduct. It was submitted that damage to Mr Smith had been done and would continue to be done whenever the media chose to run a public interest article that included his photograph.

48 Mr Smith sought orders that the Police be admonished for their breach of the law and that it be refrained from similar action in the future. Further, that the Police establish proper procedures for future determinations of requests for such material. The sum of $100,000 was sought as compensation pursuant to s 43(1)(iii) of the IP Act.

49 The primary submission of Mr Gipp, counsel for the Police, was that there was a discretion vested in the Police pursuant to s 16(2) of the FOI Act to release the photograph and this discretion was properly and lawfully exercised. In such circumstances, the Police were not required to apply the provisions of the FOI Act and, in particular, Part IV of the Act dealing with exempt documents. Further, the lawful release of the photograph under the FOI Act meant that the IP Act had no force or effect by virtue of s 6(1) of the IP Act. As I understand his submission, the IPPs and the requirement to comply with them were inconsistent with s16(2) of the FOI Act.

50 Mr Gipp submitted further that it was proper and appropriate to release Mr Smith's photograph in accordance with s16(2) if such release was in the public interest. He relied on the grounds of public interest referred to by Superintendent Maclean in his written statement.

51 Mr Gipp's alternative submission was that the Police were exempt from complying with the IPPs by virtue of s 13 of the IP Act as the photograph was released in furtherance of the Police's law enforcement and community policing functions. He referred in particular to the law enforcement functions of the Police set out in its Code of Conduct which provided under the heading Introduction that the Victoria Police Force mission is :

•

To provide a safe, secure and orderly society by serving the community and the law.

52 He submitted that the community policing functions of the Police were likely to be incorporated within those principles and that the law enforcement functions and community policing functions were functions performed by the Police in the public interest. He submitted that the Tribunal needed to consider the same grounds of public interest relied on in relation to s 16(2) of the FOI Act and determine if those principles enabled release of the document. He did not address me in any detail in relation to the IPPs.

53 In essence it was submitted by Ms Versey on behalf of the Commissioner that release of the photograph was not lawful under s16 of the FOI Act as regard should have been had to s 33 of that Act and the IP Act. Further, there had been a fundamental misunderstanding by the Police in relation to s 13 of the IP Act and this section did not provide a blanket exemption for the Police in relation to its law enforcement functions or community policing functions.

54 Ms Versey submitted that the community policing functions referred to in paragraph 13(d) of the IP Act related to functions other than the law enforcement functions of the Police and that the release of the photograph to the media did not appear to be part of the community policing functions of the Police as envisaged by Parliament. She relied on the Explanatory Memorandum to the Information Privacy Bill, clause 13, which states :

Clause 13 provides a limited exemption for law enforcement agencies. The exemption does not operate in respect of all IPPs and applies only in relation to the law enforcement and community policing functions of law enforcement agencies. That is, it does not exempt them from complying with all principles in respect of, for example, their own staff records and other administrative matters. Community policing functions, for example, are intended to refer to licensing investigations, location of missing persons, providing necessary responses in public emergency and disaster situations and locating next of kin if required.

55 She did not address me in any detail in relation to the IPPs save that she submitted that there had been a breach of IPP2. Further she submitted, and it was not disputed by Mr Gipp, that a mug shot forms part of the criminal record of an individual and is sensitive information as defined in Schedule 1 of the IP Act. This is relevant in relation to IPP2 (1a).

56 Ms Versey said that Mr Smith's recorded image was not a matter of public record by virtue of his appearance in open court. It was compulsorily provided by the applicant to the respondent as a result of his being charged with a criminal offence. The photograph was not obtained in open court. It is a long standing tradition that the media are not permitted to take photographs of accused persons in court whether they plead guilty or stand trial and are found guilty. Judges may from time to time allow the visual recording of court proceedings, but this is at the discretion of the trial judge.

57 Ms Versey submitted that it was not part of the function of the Police to augment the sentence of a court by disclosure of a photograph taken compulsorily by the Police, and a disclosure for that purpose was not a proper disclosure. The Sentencing Act 1991 (Vic) did not contemplate any role for the Police in the sentencing process and such involvement by the Police was contrary to the purpose of that Act. It was the role of the Police to investigate and prosecute, and the role of the courts to conduct trials and, upon conviction, to fix the appropriate punishments.

58 She submitted further that :

The disclosure of a police photograph of a convicted person to the media for publication means that the photograph remains forever in the public domain. It is capable of being copied, downloaded and archived. It can be used electronically on websites such as CrimeNet which is a collection of criminal records, including photographs where available. Such a record may have an adverse impact on the rehabilitation of persons recorded on the database and in some cases cause danger to offenders and their families. Parliament has recently addressed the issue of protection of the public from persons who have committed serious sex offences, sch as in the Applicant's case, with the Sex Offenders Registration Act 2004. Section 63 of that Act restricts access to the identifying information on the register of sex offenders to authorised police and only permits disclosure by police to government departments and public statutory authorities. The Act does not permit disclosure to the media. The provisions of this Act are expressly stated to limit the use of offenders' information to law enforcement functions and activities and not for the purpose of community notification (2nd Reading Speech, Minister for Police and Emergency Services, Parliamentary Debates (Hansard) Page 1852 3 June 2004).

59 Finally, Ms Versey indicated that it was not contended by the Commissioner that mug shots should not be released in any circumstances and that there were situations where release would not be contrary to the IPPs.

RELATIONSHIP BETWEEN SECTION 16(2) FOI ACT AND IP ACT

60 In considering the primary submission for the Police, it is necessary to put s 16(2) of the FOI Act in its context. Prior to the enactment of the FOI Act the Government disseminated a large quantity of government information in public registers, ministerial statements, press statements and other literature. This was apart from the internal law documents and other material now dealt with in Part 11 of the FOI Act. In the absence of s 16(2), it might have been suggested that a continuation of these processes was illegal or inappropriate, that the FOI Act provided an exhaustive code for dissemination of government information, and that it was only in accordance with the provisions laid down in the FOI Act that information should be released. Section 16(2) rebutted those suggestions. However, it did no more than that.

61 This view of s 16(2) is consistent with Re Chadwick and Department of Property and Services (1987) 1 VAR 444, (referred to by Ms Versey in her submissions) where Judge Rowlands P said at 453 that s 16(2) is generally facilitative and declaratory; it does not seek to prohibit the disclosure of documents and that the word "properly" should be considered in its normal English meaning.

62 Given the generality of s 16(2), that provision should be taken as subject to the special exemptions created in relation to documents affecting personal privacy and commercially sensitive documents. See for example s 33(3) and s 34(3). Over the years, this type of distinction has been strengthened and elaborated upon by statutory amendment. (See, s 33A and s 33(9)).

63 Judge Rowlands P noted in Re Gill and Department of Industry, Technology and Resources (1985) 1 VAR 97 at 102 that private affairs and business affairs were singled out for special protection from disclosure under the FOI Act. In the Second Reading Speech on the FOI Act of 14 January 1982, Parliamentary Debates (LA) Volume 367 at p 1061 the Premier Mr Cain in referring to the exemptions created under the FOI Act said :

... the advent of freedom of information does not mean that all information in the possession of the Government of Victoria will become public. In this regard, I draw to the attention of honourable members the objects clause which identified two broad categories of documents which ought to be protected. These are, the need to protect "the essential public interests" and "the private and business affairs of persons in respect of whom information is collected and held by agencies". (emphasis added).

64 In my view, the Police should have applied the provisions of s 33 when considering the request from the Leader for Mr Smith's photograph because release of the photograph involved the disclosure of information relating to his personal affairs, which Rowlands J. noted had been singled out for special protection. That consideration required the application of the test of unreasonableness required by s 33(1). In so doing, the Police was entitled to have regard to the public interest factors referred to by Superintendent McLean in considering s 16(2). The concerns raised on behalf of the Commissioner, including the possible adverse impact of release on Mr Smith's rehabilitation and whether it was a proper function of the Police to augment the sentence of the Court, and Mr Smith's views as to the effects of disclosure, were also matters relevant to the test of unreasonableness.

65 Superintendent Maclean's assertion that "there was no breach of privacy occasioned to Mr Smith by release of the photograph due to his conviction and sentence occurring in open court" did not address the breach of privacy which Mr Smith and the Commissioner allege. Mr Smith was not aware of the Police practice in relation to release of mug shots to the media when he was photographed in police custody, he did not consent to release of his photograph, and whether or not the photograph was compulsorily acquired as asserted by Ms Versey, I am satisfied Mr Smith believed he had to submit to being photographed.

66 In addition, the Police were obliged to take into account "whether disclosure would, or would be reasonably likely, to endanger the life or physical safety of any person" as required by s 33(2A). This was a concern raised by Mr Smith and Ms Versey.

67 If after applying the test of unreasonableness a decision was made by the Police that the document was not exempt under s 33(1), the Police were required to comply with s 33(3) (it being practicable to do so in accordance with that sub section) by notifying Mr Smith that it had decided to grant access and of his right of appeal against that decision. Regrettably, the Police failed to do so, depriving Mr Smith of the opportunity to seek an independent review of the decision by this Tribunal.

68 Section 6(2) of the IP Act preserves "any right privilege, obligation or liability conferred or imposed under that [FOI] Act or any exemption arising" from the provisions of the IP Act. There is another section in the IP Act which specifically deals with the FOI Act (s 12) but it is not relevant to the substantive considerations in this case. No submissions were made to me on the implication of that section . Further, the Police submission did not deal with the interface between the IP Act and s 33 FOI Act because that section was not considered relevant to the Police's obligations under that Act in this case.

69 In my view, Mr Smith's right to the lawful application of s 33(3) was paramount to any consideration that might apply under the IP Act by reason of s 6(2) of the IP Act. Similarly, by reason of the same section, the obligation upon the Police to give the applicant relevant notice before disclosure of private information under s 33(3) cannot be ignored by reference to provisions in the IP Act which might otherwise permit disclosure.

70 In my view, the Police were unable to take advantage of s 6(2) of the IP Act to justify their actions under the FOI Act. However my findings in the previous paragraph in relation to the FOI Act do not deal with the substantive claim by Mr Smith that the Police were in breach of the IP Act.

Law Enforcement Functions and Community Policing Functions

71 The Police fall within the definition of "law enforcement agency" in s 3 of the IP Act. Consequently, the Police are entitled to the benefit of s 13 of the IP Act which relieves it from compliance with the IPPs if [the Police] believe(s) on reasonable grounds that the non-compliance is necessary .. for the purposes of one or more of its ... law enforcement functions or activities, or ... for the purposes of its community policing functions.

72 The phrases law enforcement functions and community policing functions are not defined in the Act. Law enforcement functions is a fundamentally descriptive term which will change from time to time. Mr Gipp submitted that the term law enforcement functions was defined by the Police's Mission Statement and that community policing functions were incorporated within those principles. The Mission Statement is very general in its terms and is perhaps intended to describe the whole of the Police functions.

73 The Health Records Act 2001 (Vic) at s 3 defines "law enforcement function to mean :

"law enforcement function" means one or more of the following -

(a) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction;

(b) a function or activity under an Act directed to the prevention, detection, investigation or remedying of, or the imposing of sanctions in relation to, seriously improper conduct;

(c) the prevention, detection or investigation of conduct that could found a compliant for an intervention order under the Crimes (Family Violence) Act 1987;

(d) the preparation for, or conduct of, proceedings before any court or tribunal, or execution, enforcement or implementation of the orders or decisions made by a court or tribunal;

(e) the holding of a person in custody or the provision of correctional services, including by a contractor within the meaning of the Corrections Act 1986 or a sub-contractor of that contractor, but only in relation to a function or duty or the exercise of a power conferred on it by or under that Act;

(f) .....

That Act deals with similar issues to this Act, the definition is pertinent to this Act and, in my view, a guide to the meaning of the term law enforcement functions.

74 The meaning to be given to community policing functions is more problematic. We are now able to use such materials as explanatory memoranda in interpreting legislation. Whilst such materials can assist in resiling ambiguity, they cannot totally control the meaning of the statute. Further, the Explanatory Memorandum to the IP Act referred to by Ms Versey did not seek to provide an exclusive definition of the term in Clause 13. In the result, the meaning of community policing functions as used in the statute is at large and to obtain guidance on the concept regard can be had to the evidence of Superintendent Maclean and other sources.

75 Superintendent Maclean, in answer to a question as to the meaning of community policing functions, said that the Police could not do the job of policing alone and that it involved the community. By putting information out into the community, the Police could get information in return. He said this related to the community's perception of feeling safe as well as to its law enforcement functions. This was one of the reasons he released Mr Smith's photograph to the Leader.

76 Officer John Murray, Chief Police Officer for the Australian Capital Territory and the Australian Federal Police, in an article entitled "Police Culture: A Critical Component of Community Policing" (Australian Journal of Forensic Sciences, 34:57-71, 2002) said at p69 :

Fundamentally, community policing requires an open and consultative relationship between the police and the rest of the community. The cultural traits in policing essential to meet this expectation include a willingness to be service oriented, a genuine commitment to community consultation, a predisposition to problem solving and sensitivity to community expectations.

most crimes are not solved by good detective work or good forensic work - most crimes are solved by someone telling the police, either directly or indirectly, and this is directly proportional to the relationship Police have with the rest of the community.

77 A publication by Trojanowiez, Kappeler, Gaines and Buequeroux called Community Policing - A Contemporary Perspective 2nd Edition sets out ten principles of community policing. They include that community policing is a strategy that allows the police and community residents to work closely together in new ways to solve problems of crime and he referred to the police and people exploring creative new ways to address neighbourhood concerns beyond a narrow focus on individual crime incidents.

78 In my view, the articles just referred to and Superintendent Maclean's evidence contain some common threads relating to cooperation between the Police and the rest of the community and community engagement in policing initiatives.

79 Superintendent Maclean did not consider the IP Act when releasing Mr Smith's photograph; he considered only s 16(2) of the FOI Act. However, his evidence indicated that matters relevant to s 13 of the IP Act were considered by him albeit in the context of s 16(2) of the FOI Act. The parties did not make submissions as to the meaning of "reasonable grounds" in s 13.

80 The meaning of the term was considered by the Federal Court of Australia in The Australian Doctors' Fund Ltd v The Commonwealth of Australia - BC9405679, an unreported decision of Beazley J 15 November 1993, 29 April 1994. In that case, his Honour had to consider s 58(5) of the Freedom of Information Act 1982 (Cth) which required a determination of whether there existed reasonable grounds for a claim that disclosure of documents, the subject of a certificate issued under s 36(3) of the FOI Act (Cth), would be contrary to the public interest.

81 His Honour referred to a number of decisions, including a decision of the Full Court of the Federal Court in Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122. In Burchill at p125-126 Davies J said :

To be 'reasonable', it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous.

82 Beazley J adopted the meaning applied to the word reasonable by Davies J which he said accorded with the ordinary common sense meaning of the word. At p 8 he said :

In my opinion, 'reasonable grounds' for the purposes of s 58(5) are grounds based on reason in the sense to which I have referred. The phrase is not qualified by reference to grounds which moderate and sensible persons might consider to be reasonable, as counsel for the Fund would require.

83 In the sense of that term accepted in Burchill and The Australian Doctors' Fund, I am satisfied that the Police believed on reasonable grounds that non-compliance was necessary for the purposes of its community policing functions. Superintendent Maclean had formed the view that the public were entitled to know the identity of the applicant as he had been convicted of very serious offences. I accept that he believed that release would assist in publicising the workings of the criminal justice system and would indicate that justice was done, and that release would provide a means of enabling members of the public to feel safer. I also accept that release had a deterrent effect.

84 Having said that, I have real concern that the Police practice in releasing mug shots to the media, and in this case Mr Smith's mug shot, may have the effect of harming the potential for rehabilitation of the offender and creating a risk of violence to the offender and the offender's family.

85 Further, Ms Versey's submission that it is not a function of the Police to augment the sentence of the court by disclosure of a mug shot for the purpose of deterrence carries real weight. She referred me to a decision of the High Court of Justice, Queens Bench Division (Divisional Court) in The Queen (on the application of Ellis) and the Chief Constable of Essex Police [2003] EWHC 1321 (Admin). At paragraph 30 in the context of naming and shaming, the Lord Chief Justice of England and Wales, Mr Justice Goldring observed that it is a principle of law that the Police are not entitled to punish and that this is the responsibility of the courts.

86 Ms Versey referred to a number of authorities from the United Kingdom in relation to disclosure by the Police of photographs of convicted offenders to the media. They included Queen v Chief Constable of North Wales Police and Others; Ex parte Thorpe and Another [1991] QB 396 cited in Essex Police above and Hellewell v Chief Constable of Derbyshire [1995] 1WLR 804. These decisions arise in the context of English legislation of a different nature. The courts there enunciated a very narrow range of proper purposes to which the Police can put information of this type. Given that in the Victorian legislation there seems to be a sanction for a much wider range of purposes under the rubric of "community policing functions" those authorities are not directly in point.

87 I am inclined to the view that the Police did not have reasonable grounds for believing that non-compliance with the IPPs was necessary for its law enforcement functions_._ However, it is unnecessary for me to decide the point.

88 I am satisfied that the Police are entitled to the benefit of s 13 and that it is not necessary for them to comply with the IPPs relevant to this case and, in particular, IPP2. Although Mr Smith's rights under the FOI Act are preserved in accordance with s 6 of the IP Act, he was not entitled to rely on the IPPs by virtue of s 13 and therefore his complaint is not proven under the IP Act. For this reason it is unnecessary for me to consider whether there has been a breach of the IPPs and, in particular, IPP2.