'KO' & 'KP' v Commissioner of Police, New South Wales Police [2005] NSWADT 18 (4 February 2005)

Last Updated: 4 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: 'KO' & 'KP' v Commissioner of Police, New South Wales Police [2005] NSWADT 18


PARTIES: APPLICANTS
'KO' & 'KP'
RESPONDENT
Commissioner of Police, New South Wales Police



FILE NUMBERS: 043178, 043179

HEARING DATES: 19 & 20/08/2004, 14 & 15/10/2004

SUBMISSIONS CLOSED: 15/12/2004



DECISION DATE: 04/02/2005

BEFORE: Robinson MA - Judicial Member





LEGISLATION CITED: Police Act 1990
Privacy & Personal Information Protection Act 1998

CASES CITED: HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214
KO & KP v Commissioner of Police, NSW Police [2004] NSWADT 3
KO & KP v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 21
Department of Education and Training v GA (No.2) [2004] NSWADTAP 50

APPLICATION: Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
'KP', in person and agent for 'KO'

RESPONDENT REPRESENTATIVE: RESPONDENT
P Mclaughlin, solicitor

ORDERS: The applicants' applications are dismissed.


Reasons for Decision:

REASONS FOR DECISION

1 These are two applications made pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Act or the Privacy Act") for review of the conduct of NSW Police, a public sector agency, in relation to its dealing with the alleged personal information of the applicants. The applicants are a father (KP) and his son (KO). It is alleged by the applicants that the respondent contravened a number of information protection principles ("IPPs") of the Privacy Act and compensation is sought along with other orders pursuant to section 55(2) of the Act. The respondent’s case is that there was no "personal information" involved and that exemptions applied under the Act.

2 The matter was first heard on 1 August 2003. A decision was handed down by the Tribunal dismissing the applications - KO & KP v Commissioner of Police, NSW Police [2004] NSWADT 3. An appeal by the applicants to the Appeal Panel was successful, the Tribunal’s decision was set aside and the matter was remitted to the Tribunal - KO & KP v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 21. A lot of the factual background to the applications is contained in the Appeal Panel’s decision. Further Tribunal hearings occurred on 19 & 20 August 2004, and 14 & 15 October 2004. At these hearings, it was agreed by the parties that the oral and documentary evidence adduced at the earlier hearing on 1 August 2003 would be admitted into evidence in the remitted proceedings. At all hearings, the applicant father represented himself and he also appeared for the applicant son.

3 The applicants’ complaint is that in about August 2002, while the NSW Police were investigating a complaint against the police handling of KO’s (the son) earlier arrest for, inter alia[cedilla] smoking at a covered railway station, an unlawful disclosure of his personal information was made to his then employer and, as a consequence, he lost his job and he seeks compensation and other orders under the Act. As a result of the applicant son becoming unemployed, the applicant father was required to financially support him for about a year and he claimed to be a person aggrieved under the Act.

4 A three page application for an internal review pursuant to section 53 of the Privacy Act was made by the applicant father "on behalf of" the son dated 7 February 2003. The principal paragraph stated:

"The investigating officer in charge of the above complaint, Inspector Stephen Oswald, breached the Act in or about August 2002 by unlawful disclosure of personal information about [KO – the son] to his employer [named]. I did not become aware of the breaches until 4 September 2002. As a result of Inspector Oswald’s breaches, [KO] lost his job and now seeks accountability and compensation."

5 In addition, the following sections of the Act were set out with a brief description of each section. There was no statement of the manner by which it was said each section purportedly related to the above application. The sections set out were, sections 8, 9, 10, 11, 16, 17 and 18 of the Act.

6 The reference to the "above complaint" in the application was a reference to a formal complaint (described in the application as "Police Reference: CIS/02001082") that had been lodged by the son about the police handling of his arrest at the railway station.

7 An investigation was conducted and an internal review report was made by an officer of the respondent dated 1 May 2003.

The Scope of the Application

8 After the remitted hearings, written submissions were received by the Tribunal from the applicants dated 15 October 2004, and from the respondent, dated 22 October 2004 and filed 28 October 2004, and a two page supplementary submission dated 15 December 2004. The respondent also handed up a 6 page "Chronology" of exhibit A2 (the Inspector’s investigation file) which was received as a submission.

9 The respondent contends that the Tribunal should confine the scope of the applications to that which was strictly within the jurisdictional scope of the Tribunal, namely, to issues of the "disclosure of personal information about [KO] to his employer", as was stated in the internal review application.

10 The Tribunal’s jurisdiction is determined by a combination of sections 52, 53 and 55 of the Privacy Act. In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, the Appeal Panel held that the conduct complained of must relate to a breach or alleged breach or contravention of an IPP or Code of Practice (s52) and held (at [7]):

"The Tribunal has jurisdiction to review "the conduct that was the subject of the application" under s 53 [the making of an internal review application]. Consequently, the Tribunal cannot review any conduct that was not the subject of the application to the agency. That conduct may be more accurately or specifically identified in subsequent correspondence or discussions between the applicant and the agency."

11 In the present case, there was no subsequent correspondence or discussion between the parties clarifying the conduct complained of in the internal review application. The respondent’s internal review investigation report makes this clear.

12 In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, a number of other principles were determined in order to assist a Tribunal in determining the scope of an internal review application (at [13], [14] and [17]). In summary, the Appeal Panel held (as to contraventions of the IPPs only):

"a) the applicant does not need to identify the contravention ... on which he or she relies in the application for review;

b) if an applicant does identify one or more contraventions ...that information would assist the agency in identifying the underlying conduct about which the applicant is aggrieved. However, the fact that a particular provision is nominated does not mean that the conduct that is identified amounts to a contravention of that provision;

c) an agency is not confined to considering the contraventions referred to by the applicant. An agency must address any contravention ... that is reasonably open on a reading of the entire application for review."

13 In the present case, the internal review application plainly related to a particular disclosure by a particular, named, officer of the respondent on a particular occasion. Indeed, it is the only relevant conduct referred to in the relevant sense. Notwithstanding that a wide spectrum of contraventions of the IPPs is later alleged in the application (by a naming of the provisions only) the scope of the application is about the disclosure of certain personal information. I accept the submission of the respondent that these applications do not concern, for example, collection or storage of the alleged personal information.

14 At the hearing of the applications, the applicants relied on two documents handed up to the Tribunal on 19 August 2004 styled "Breaches of the PPIP Act 1998 by NSW Police". The second document was styled "Supplemental". These documents set out the applicants’ case. They include the orders sought by the applicants (namely, damages for financial and psychological loss and consequential orders). They allege a wide range of matters and contraventions of the Act, many of which travelled well beyond matters concerning the disclosure issue described above in these reasons. It will be plain from those reasons, that the Tribunal will not consider those matters and alleged contraventions that do not relate directly to the disclosure issue.

15 The Tribunal in these matters does not have jurisdiction to deal with matters other than the disclosure issue in that it was not "reasonably open" to the agency to conclude that the internal review application related to any other conduct - Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 at [20].

The Issues

16 Primarily, the Tribunal is required to resolve the following issues:

a) Did the disclosure made by the police officer in August 2001 to the employer constitute disclosure of "personal information" within the meaning of section 4 of the Privacy Act?

b) If it did, did a contravention of the IPPs occur?

c) If so, should the Tribunal take any action on the matter by way of making an order or orders under section 55(2) of the Privacy Act?

d) As a part of a consideration of the damages sought by the applicants, was the loss or damages suffered by the applicants "because of the conduct" of the agency complained of within the meaning of section 55(2)(a)?

e) Did the applicants’ loss constitute "financial loss or psychological harm" within the meaning of section 55(4)(b) of the Act? and,

f) Did the applicant father have standing to pursue his application before the Tribunal within the meaning of sections 52, 53 and 55(1) of the Act?

The Evidence Before The Tribunal

17 The documentary evidence before the Tribunal from the first hearing in 2003 comprised a written authority to act from the applicant son to the applicant father (exhibit 1); a statement from the applicant son to the respondent dated 30 May 2002 (exhibit 2); a statement from Constable Bradley McClifty (who arrested the applicant son for smoking at the railway station) to the respondent dated 31 May 2002 (exhibit 3); the internal review decision dated 1 May 2003 (which enclosed a statement from the applicant father to the police dated 18 August 2002 and a statement from Mr XY, the managing director of the former employer of the applicant son ("the Managing Director"), dated 21 Aug 2002 (exhibit 4). Also in evidence before the Tribunal is an affidavit from the applicant father sworn 18 June 2003 which had a number of documents annexed to it. One of those documents is a single page from the diary of Detective Inspector Oswald who investigated the police misconduct claims made by the applicant son. During the hearing, the second page of that diary entry was also tendered.

18 At the first hearing, the applicant father gave oral evidence and was cross-examined by the respondent's representative. He said that for a period of about 12 months, from August 2002 to August 2003 he was required to financially support his son as a result, he said, of the respondent's disclosure. In that time, his son could not pay the usual rental bond of $60 per week.

19 At the remitted hearing, the documentary evidence before the Tribunal tendered by the respondent consisted of: a 243 page folder comprising the Investigation Report of Inspector Oswald dated 24 March 2004 including numerous attachments (exhibit A2); a second statement from the Managing Director of the employer, dated 26 July 2004 (exhibit A3); an inter-office facsimile of the employer dated 5 June 2002 enclosing some revised time sheets from the employer’s files (exhibit B2); further time sheets from the employer’s files over two days from 4 to 5 June 2002 (exhibit C2); a statement from Inspector Oswald dated 27 July 2004 (exhibit E2); and, a second statement from Inspector Oswald dated 12 October 2004 (exhibit D2). The applicants’ documentary evidence comprised: an affidavit of Mr XA dated 12 April 2004, a fellow worker with KO at the relevant building site at the time ("the Job Supervisor") (exhibit 1A); an affidavit of Mr XB dated 20 July 2004, a second fellow worker of the applicant son at the time (exhibit 2A) ("the Fellow Worker"); an affidavit of KO dated 15 October 2004 (exhibit 3A); a video tape, only a few minutes of which was played at the hearing of what occurred at the police station in the charge room on the day the KO was arrested for smoking at the railway station (exhibit 4A); a list of the alleged expenses of the applicant father in having the son at home after the son lost his job (exhibit 5A); and, a police property docket, listing the personal property of the applicant taken from him while he was in custody on 30 May 2002.

20 The parties agreed, and the Tribunal, accepted, that if the Tribunal found there was a contravention of the Act for which damages would be ordered, a separate hearing would be fixed for the assessment of the damages and consequential orders.

21 Oral evidence was given over four days by:

a) The Managing Director;

b) Mr XY, electrical contractor and supervisor of the relevant building site at the time ("the Site Supervisor");

c) Mr XA, the Job Supervisor;

d) Inspector Oswald;

e) Mr XC, an electrical engineer employed by the company after KO ceased work ("the Electrical Engineer"); and

f) Mr KO, the applicant son.

22 The background facts in these proceedings are not in significant contest. The evidence establishes that on 30 May 2002 the applicant son, who was a former electrical apprentice, was arrested for smoking on a railway platform in Sydney and for refusing to provide the police with his name at the time. He was on his way to work as a casual trades assistant at a [named] building site. He was in the company of a fellow worker from the said building site. He was arrested, about midday that day. He was placed inside a police van, driven to the [named] police station and subjected to charging procedures. On that same day, he made a formal written complaint to the police about the circumstances of his arrest and treatment by the police. He gave a written statement to this effect that day (exhibit A2, page 22). Before his arrival at the police station, he had managed to telephone his father on his mobile phone, who arrived at the police station and assisted him in making his formal complaint about, inter alia, alleged police misconduct, trespass and assault. Certain statements were written or taken over the next few months in relation to the formal complaint (for example, at exhibit A2, pages 28, 31 & 41). The police opened a file on the "CIS" (Complaints Information System) and Inspector Oswald was allocated the task of conducting investigation. Eventually, on 18 Aug 2002 Detective Inspector Oswald interviewed the applicant father and took a lengthy statement. In that statement the applicant father set out in very great detail the events of 30 May 2002. At one point in the interview, the applicant father said that he intended to seek compensation for loss of wages and for expenses for the day. Also at the interview, he stated that he drove his son to work after the arrest incident and all the workers have gone home as it was 3.50 pm. He said that his son was employed by a building company working at a large building site in Sydney as a "supervising electrical mechanic" where he was the on-site supervisor, supervising the daily activities of about 6 to 10 employees and that he is employed on a full-time basis.

23 In the written statement by the applicant son to the respondent dated 30 May 2002, KO claimed he said to his arresting officers at one point while in the police station on 30 May 2002 that he needed his mobile phone in his cell (it had been taken away from him as part of the charging procedures) as he was "the supervisor of a $7 million contract and I must keep in contact with the people on-site" (para 20). He also alleged he said to the police that he needed to have his mobile phone as "I have an apprentice on site who has to be able to contact me." (paras 17 & 20).

24 The complaints that the applicant son made to the police were serious complaints. They involved police mistreatment and alleged criminal matters. It was alleged, inter alia, that:

a) he was unlawfully arrested and falsely imprisoned;

b) he was assaulted a number of times by police officers; and

c) there was gross misconduct by police officers in the handling of his arrest, conduct to the police station, charging procedures and his brief detention.

25 In his investigation of the complaint, Inspector Oswald had access to prepared statements of some of the police officers concerned and he interviewed some of them. He issued them with formal Directives for them to fully explain the occurrences of 30 May 2002. There were a number of areas in this investigation where the evidence of the police officers did not equate with the evidence of the applicants. For example, the two arresting officers asserted that KO told them on the day that he had sued the police before in the Supreme Court in respect of similar circumstances and that he was going to make a lot of money out of his arrest and treatment. Also, the police officers denied it was a hot day (KO had complained that it was hot in the back of the back of the police van and he had difficulty breathing there). A Bureau of Meteorology report dated about 19 August 2002 was obtained by the Inspector showing the maximum temperature for the relevant day near the relevant area was recorded at 18 degrees Celsius. His investigations revealed that all of the police who had had contact with KO on 30 May 2002 described his demeanour as "uncooperative, aggressive and belligerent" (page 13 of the report).

26 On 21 August 2002, Inspector Oswald telephoned the Managing Director and asked him to come to the police station in order to make a written statement. In the Inspector’s report dated 26 March 2004, the Inspector did not indicate why he sought the evidence of the employer on that day.

27 In his written statements dated 27 July 2004 and 12 October 2004, the Inspector stated he telephoned the Managing Director and informed him that he was investigating "an interaction between Police and KO, about 12 midday of 30 May 2002 at the [named] Railway Station". He also said "As a result of that interaction, I want to confirm the status of employment of KO as a key manager within [the company] and that KO was the supervisor of a large project at [site named]". At the police station, the Managing Director, accompanied by the Site Supervisor, attended the station and gave a written statement.

28 In his oral evidence, the Inspector provided details of his experience with the respondent. In short, after his initial training, he spent one year as a police constable in general duties and about two years in plain clothes duties. He spent three years in Vice Squad and eight years in the Major Crime Squad, dealing with, inter alia, armed hold-ups. The Squad dealt with major, serious and repeat offenders. He was appointed an Inspector in 2000 and is presently the Acting Local Area Commander for the Hawkesbury Area. He was an impressive witness before the Tribunal and I accept that he is an experienced criminal investigator. His evidence was that in any investigation, it is essential for the investigator to establish the credit of a witness, particularly a complainant, in order to present credible briefs of evidence to the Director of Public Prosecution.

29 His evidence was that he treated the investigation of KO’s complaint as if it were both a "Part 8A" investigation (alleged misconduct of the police) and a criminal investigation. He said that in addition to the alleged criminal acts expressly mentioned in KO’s complaint, he also was mindful of section 201 of the Police Act 1990 where "neglect of duty" for a police officer may constitute a criminal offence.

30 When asked why he wanted to speak to the Managing Director, he said wanted to confirm the "veracity" of the matters the subject of the complaint. He wanted to test the credibility of both KO and KP. He said there were some matters that needed to be investigated, such as KO’s allegation that he was the supervisor of a $7 million project and his position with the company. He said that at the time he had reason to doubt the veracity of some of the matters claimed by the applicants, for example, he also had cause to check the weather that day with the Bureau of Meteorology and obtain witness statements from the relevant police officers and obtain the CCTV (Closed Circuit Television) images recorded at the railway station on the day of the arrest. He said examination of these documents caused him to consider that the credit of the applicants was in question and that perhaps they had "embellished" their version of the events in the complaint. He later said (in cross examination) that he also doubted that KO, a young man in his early 20s would have had the necessary skills to be in charge of a $7 million building project. Accordingly, the applicants’, in particular, the son’s, credibility needed to be investigated and tested.

31 In oral examination, he agreed that he told the Managing Director that day that he was investigating a complaint made by KO against some police officers relating to smoking at the named railway station. He did not recall whether he told him about the arrest of KO made that day.

32 In cross examination, the Inspector accepted that at some point after the original complaint had been made by KO, KP was also regarded by him as a complainant. He said that after he had interviewed the Managing Director (and was told: that the KO was a casual trades assistant and not the supervisor of the site; that KO was not a supervisor at all of any part of the building project; and that it appears that KO had put himself down for and been paid by the company for attending work on the very day he had been arrested) he formed the opinion that the applicant son was not being entirely truthful in a number of respects.

33 The Inspector also said that he considered the subject of the complaints to constitute criminal acts if the allegations had proved to be made out upon investigation, which they were not.

34 The Managing Director’s evidence was broadly to the same effect as the evidence of the Inspector. He was managing director of the company at the relevant time. The company has since gone into liquidation. The company was a fire protection company that installed and maintained fire protection systems in Australia. One of the sites he was involved with was the subject site in Sydney. After being informed of the matters told to him concerning KO and his arrest, the Managing Director made a telephone call to the Port Macquarie pay office of the company and ascertained that the records showed that the applicant son had apparently claimed for a day’s work on 30 May 2002 when he should not have, as he was tied up with the police for most of that afternoon.

35 The Managing Director gave evidence for about one and a half days. He was extensively cross examined. He impressed me as a witness of truth. He gave evidence that the applicant son was employed by the company as a casual trades assistant and as at 30 May 2002, he had worked for the company for a few months and there was no written contract of employment.

36 He said the Inspector had told him that he was with Internal Affairs, and that KO had been arrested for smoking at a railway station and that he had been abusive to police and he had made a complaint against the police. He said the total value of the particular job on the subject site to the company was about $500,000 and not $7 million. He explained the circumstances that gave rise to his telephone call to his pay office at the police station on 21 August 2002. It was his idea and he decided to do it as he had earlier had the impression from the Inspector that KO had been working on 30 May 2002. He also wanted to know why the applicant was not at work on that day.

37 Extensive evidence was given at the hearing concerning identification of details of the employer’s most recent payslip concerning the applicant son for the 30 May 2002. I am satisfied that there was a payslip recorded by the company which indicated that KO had worked on the day before (for the same number of hours), but not the 30 May 2002. There was a corruption of the email or computer file and the payslip numbers needed to be re-entered. The re-entered version of the payslip showed that KO did not work on the day before, but had worked on 30 May 2002. It is plain to me from the oral evidence and my own examination of the exhibits that the wrong day had been attributed to KO in the final document. The error did not matter to the company in that the same amount of pay was owed. However, for that particular day, and with the benefit if hindsight, the company records wrongly gave the appearance that KO had incorrectly claimed for a day’s work when he should not have. This plainly, on 21 August 2002 (before the wrong payslip matter had been discovered), left the Inspector and the Managing Director with the wrong impression of KO’s actions around that period.

38 The Managing Director gave evidence that he did not "terminate" the applicant son’s employment at all. He said he was employed as a casual trades assistant in order to undertake a particular job on a particular site, and that work had ended. He said the company did not have any other jobs it could reasonably deploy him to. He said it would be difficult for him to obtain any other kind of work with the company (for example, the position of a fire alarm tester could have been available at the time) as KO did not have a driver’s licence and the position involved sites all over Sydney and as KO had not undertaken the necessary training. He said that KO was informed that if anything further came up, they would let him know.

39 He said that KO was informed of this on the weekend of 28 August 2002. At that time, the company had already let go several casual trades assistants from the job site. He said that, from the company records, around the time of May to August 2002, the company had paid the applicant son amounts between $535 gross and $1605 gross per week. In cross examination, it was put that the Managing Director was of the opinion that KO was dishonest and that he dismissed him because of that opinion. The Managing Director disagreed and said that he considered at the time that KO might have merely made a mistake in his time sheet. He said it would have been wrong for him to make an assumption of dishonesty without putting it to the employee first. He said that KO was a conscientious worker and that there was no other trouble with him. He decided at the time he was not going to follow the issue up with KO or at all. He said he had a lot of employees at the time and "you’ve got to give them some latitude". He said if one of his employees had not done the right thing, he would give them an opportunity to explain themselves. He said that the meeting he had with Inspector Oswald (about a week earlier) had nothing to do with the decision to let KO go and it was merely coincidental with the ending of work on the building site. This part of his evidence was cooperated by the evidence of the Site Supervisor and the Job Supervisor. The Site Supervisor gave evidence that four persons were let go by the company from the site a few weeks before KO was spoken to at the end of August 2002. The Job Supervisor gave evidence that he was let go by the company in September 2002 as there was no more work. After that time, he kept telephoning the Managing Director for further work and there was none.

40 The remaining oral evidence largely concerned matters that do not fall for strict consideration by the Tribunal at this point. I will not set it all out. As to the disclosure and causation issues, the above is the primary evidence that I consider sufficient and appropriate to set out at this stage.

Disclosure under the Act?

41 I do not consider there was relevant disclosure of personal information under the Act as the information was not "personal information" within the meaning of section 4(h) of the Act in that it was plainly information "arising out of a complaint made under Part 8A of the Police Act 1990".

42 I accept what the Appeal Panel has held in KO & KP v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 21 at [18] that Inspector Oswald’s investigation was "clearly" a Part 8A investigation for the reasons set out there. The evidence of Inspector Oswald was that he understood at all times he was conducting a Part 8A investigation. The alleged personal information (about the arrest of KO and the complaint by the applicants) was plainly information that was contained within and arose out of the complaint. Some of the information formed part of the terms of the complaint itself (as made by both applicants). It was disclosed to the Managing Director on 21 August 2002 as a necessary part of the investigation itself by an experienced criminal investigator. As a necessary part, it plainly "arose out of" the said investigation. The Inspector wanted to test the credibility of the applicants’ allegations. He did that by informing the Managing Director (and the Site Supervisor) of the complaint and earlier arrest of the applicant son in order to put the questions he was asking in their proper context and obtain relevant cooperation and a detailed written statement.

43 The information in issue has plainly "resulted, proceeded or originated from a complaint made under Part 8A" (ibid, [2004] NSWADTAP 21 at [30]) and is relevant to that complaint - GA v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [55]. The relationship of the said information to the complaint is neither tenuous nor indeterminate - KO & KP v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 21 at [32].

44 It might be said it was not strictly necessary for all of the information in issue to have been disclosed by the Inspector to the Managing Director. However, as I have found, the Inspector was an experienced criminal investigator and he considered it necessary at the time to release some information concerning the complaint itself to the Managing Director in the course of the conduct of his Part 8A investigation. He was entitled to fully test the credit of the complainants in all relevant respects by his chosen method based upon his experience, and that is what he did.

45 Accordingly, the information in issue was not personal information under the Privacy Act.

46 The respondent also relied on the application of the section 27 exemption. Section 27(2) of the Act provides that the IPPs apply to NSW Police in connection with the exercise of their "administrative" and "educative" functions. Given my finding that the information in issue is not personal information, I do not need to consider this claim at all.

47 In submissions, the respondent relied on HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214 at [27] and took issue with what was said by the Appeal Panel on the appeal in these proceedings - KO & KP v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 21 at [68] – [69] to the effect that it appeared to the Panel that the Inspector’s investigation was merely one as to staff misconduct. Since the Appeal Panel’s decision, significant new information and evidence has come to light, including the additional complaints as were formulated by the father, KP and the oral evidence of the Inspector to the effect that he considered the investigation to be both partly criminal and partly a Part 8A investigation. As the investigation involved criminal matters, the respondent submitted it should have the protection of section 27(2) of the Act.

48 The respondent also argued that section 167A of the Police Act 1990 (NSW) which provides that it is a criminal offence for a person, inter alia, to give false information to a number of people including a NSW police officer, in making a complaint about police misconduct. The offence carries a penalty of 50 penalty units or 12 months imprisonment. It was argued that the Inspector, in testing the veracity of the applicants’ complaints was also necessarily undergoing a section 167A criminal investigation. All of this was said to characterise the investigation as one being neither administrative nor educative. I am attracted by this argument. However, I do not need to decide the matter in the present proceedings.

49 The respondents also relied on the exemption in section 25 of the Act, which provides:

"25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998)."

50 In particular, sub-paragraph (b) was relied upon. It was said that as the investigation was one under section 167A of the Police Act, it was a criminal investigation and it was "otherwise permitted" or "necessarily implied" by other provisions of the Police Act that the Privacy Act did not relevantly apply to criminal investigations.

Other Issues

51 A substantial amount of evidence was adduced by the applicants going to the causation issue. While I do not need to determine it, I should observe that if I am wrong about the disclosure issue, I would have found that the alleged breach of the Act did not result in the loss of the job of the applicant son. KO was not terminated or dismissed at all. There was simply no further work for him to undertake. It is plain from the evidence that the company was in financial difficulties at the time and was soon sent into liquidation after work of the site had ended. It is also plain from the evidence of the Managing Director, which I accept, that the disclosure of the information in issue had nothing to do with KO’s completion of work at the building site. There was simply no further work for him to undertake.

52 Accordingly, to the extent the applicants claimed financial loss, I would have dismissed their application.

53 The question of the applicant father’s standing is a difficult one. Notwithstanding that in the Appeal Panel hearings, it appears to have been assumed that KP had standing in the matter, and that it was not a matter argued in the remitted proceedings, I have come to the view, were it necessary for me to find on it, that the applicant father did not have standing to agitate his claim in the Tribunal. Therefore the Tribunal did not have jurisdiction to hear it. This conclusion must follow from the application of section 55(1) of the Privacy Act, which provides:

"55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53." (my emphasis)

54 The internal review application in the present case was made under the hand of the father. However, it was made strictly "on behalf of" the applicant son (exhibit 4) and attached the son’s written authority. Accordingly, the father was not a person who had made an application for internal review under section 53 of the Act and he was ineligible to apply to the Tribunal under section 55(1) of the Act.

55 As a result of the Tribunal’s determination, there will be no need for the Tribunal to conduct the proposed hearing on damages and consequential orders under section 55 of the Act.

Determination

The applicants’ applications are dismissed.