AXP v Queensland Police Service [2015] QCATA 177

CITATION: AXP v Queensland Police Service [2015] QCATA 177 PARTIES: AXP (Applicant/Appellant) v Queensland Police Service (Respondent) APPLICATION NUMBER: APL579-13 MATTER TYPE: Appeals HEARING DATE: 18 March 2015 HEARD AT: Brisbane DECISION OF: Judge Horneman-Wren SC, Deputy President, Presiding Member Browne DELIVERED ON: 30 October 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is dismissed. CATCHWORDS: APPEAL – INFORMATION PRIVACY ACT – ERROR OF LAW – where complaint referred to Tribunal for determination – where application of privacy principles considered – whether information contained in a document is ‘arising out of’ a complaint, or an investigation of misconduct under the Crime and Misconduct Act – whether the Tribunal erred in finding that the document was exempt from the privacy principles Crime and Misconduct Act 2001 (Qld), s 35, s 37, s 38, s 41, s 42, s 46, s 48, Schedule 2 Information Privacy Act 2009 (Qld), s 3, s 15, s 29, s 164, s 176, s 178, Schedule 1, Schedule 3 Police Service Administration Act 1990 (Qld), s 7.2, s 10.5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 -- 1 of 13 -- 2 Australian Finance Direct Ltd v Director of Consumer Affairs (2007) 82 ALJR 202; applied AXP v Queensland Police Service [2013] QCAT 680; cited ASIC v Rich [2005] NSWSC 62; cited Colbran & Ors v State of Queensland [2006] QCA 565; cited Griffith University v Tang (2005) 221 CLR 99 cited; Australian National Airlines Commission v Newman (1987) 162 CLR 466; cited APPEARANCES and REPRESENTATION (if any): APPLICANT: AXP represented by Mr A Scott of Counsel instructed by Queensland Police Union Legal Group RESPONDENT: Queensland Police Service represented by Mr I Fraser, Senior Legal Officer, Public Safety Business Agency REASONS FOR DECISION The Appeal [1] On 16 March 2012, a search warrant which had been obtained1 under the Police Powers and Responsibilities Act 2000 (Qld) (‘PPR Act’) was executed at the home of a police officer, AXP. On the same day the search warrant was executed, a document known as an Executive Briefing Note (‘EBN’) that is used by police to communicate important information internally within the service, was prepared by a police officer in the Ethical Standards Command (‘ESC’)2. The EBN was distributed to other police officers in the Queensland Police Service (‘QPS’). [2] The EBN contained personal information about AXP including information about the execution of the search warrant at his home address.3 [3] AXP says what transpired after the execution of the search warrant and the preparation of the EBN was the release of his personal information to media. AXP says the release of his personal information was a breach of the Information Privacy Act 2009 (Qld) (‘IP Act’). [4] AXP made a complaint to the Information Commissioner.4 The substance of AXP’s complaint was as follows: 1 On 14 March 2013. 2 The ESC forms part of the QPS and in this case police officers of the ESC were responsible for the investigation of the complaint referred by the CMC 3 Executive Briefing Note dated 16 March 2012, materials to be relied upon by the Appellant, p 3. -- 2 of 13 -- 3 that between 16 March 2012 and 20 March 2012 the QPS was in control of the personal information of the applicant. The applicants personal information was contained within the EBN dated 16 March 2012. The information was released to [a journalist]. The consequence of this release of personal information was that an article was published by [the journalist] within the newspaper and online on 20 March 2012. The release of the said personal information by the Queensland Police (an agency under the Information Privacy Act) has breached information privacy principle 11 (IPP 11). Also, the Queensland Police Service have breached information privacy principle 4 (PP 4) by failing to ensure the document was protected against unauthorised access, use, modification or disclosure. [5] The complaint was referred to the Tribunal5, which determined that the complaint had not been substantiated on the basis that the EBN was not a document to which the privacy principles apply.6 The learned Senior Member otherwise found that had the EBN been a document to which the privacy principles applied, the QPS had breached privacy principal 4 in respect of it. [6] AXP has appealed the Tribunal’s decision. The sole issue in the appeal is whether, on the proper construction of item 3 of schedule 1 to the IP Act, the EBN is a document which contains personal information arising out of a complaint, or an investigation of misconduct, under the Crime and Misconduct Act 2001 (Qld) (‘CM Act’). 7 The Statutory Framework (i) Documents to which the privacy principles apply under the Information Privacy Act [7] Section 15 of the IP Act provides, relevantly, that for the purposes of the IP Act a document does not include a document to which the privacy principles do not apply. [8] Section 16 provides that a document to which the privacy principles do not apply means a document mentioned in schedule 1. [9] Item 3 of schedule 1 provides: 3 Disciplinary actions and misconduct A document to the extent it contains personal information arising out of— (a) a complaint under the Police Service Administration Act 1990, part 7; or (b) a complaint, or an investigation of misconduct, under 4 Pursuant to s 165 of the IP Act. 5 On 29 and 31 May 2013. 6 Reasons published on 21 November 2013, see AXP v Queensland Police Service [2013] QCAT 680. 7 Subsequently renamed the Crime and Corruption Act 2001. -- 3 of 13 -- 4 the Crime and Misconduct Act 2001. [10] There are also ‘special provisions’ for law enforcement agencies, including the QPS and the CMC, to permit those agencies, in certain circumstances, not to comply with particular PPs.8 The agency must, however, apply PP4 that provides for the storage and security of personal information because it is not subject to the special provisions under s 29. (ii) The Crime and Misconduct Act [11] Section 15 of the CM Act defines official misconduct as follows: Official misconduct is conduct that could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment. [12] Section 33 (b) provides that the Crime and Misconduct Commission has, as one of its misconduct functions: to ensure a complaint about, or information or matter involving, misconduct is dealt with in an appropriate way, having regard to the principles set out in section 34. [13] Section 35(1) provides for how the commission performs its misconduct functions as follows: (1) Without limiting how the commission may perform its misconduct functions, it performs its misconduct functions by doing 1 or more of the following— (a) expeditiously assessing complaints about, or information or matters (also complaints) involving, misconduct made or notified to it; (b) referring complaints about misconduct within a unit of public administration to a relevant public official to be dealt with by the public official; (c) performing its monitoring role for police misconduct as provided for under section 47(1); (d) performing its monitoring role for official misconduct as provided for under section 48(1); (e) dealing with complaints about official misconduct, by itself or in cooperation with a unit of public administration; (f) investigating and otherwise dealing with, on its own initiative, the incidence, or particular cases, of misconduct throughout the State; (g) assuming responsibility for, and completing, an investigation, by itself or in cooperation with a unit of public administration, if the commission considers that action to be appropriate having regard to the principles set out in section 34; (h) when conducting or monitoring investigations, gathering evidence for or ensuring evidence is gathered for— 8 IP Act, s 29. -- 4 of 13 -- 5 (i) the prosecution of persons for offences; or (ii) disciplinary proceedings against persons. [14] Section 37 imposes a duty upon the commissioner of police to notify the CMC of complaints (including information or matter) reasonably suspected of involving police misconduct. [15] Section 38 imposes a duty upon public officials (including the commissioner of police)9 to notify the CMC of complaints (including information or matter) suspected of involving official misconduct. [16] Section 41(2) confers a responsibility on the commissioner of police to deal with a complaint about, or information or matter involving, official misconduct that is referred to the commissioner of police by the CMC. [17] Section 42(5) provides: If the commission refers a complaint about official misconduct to the commissioner of police to be dealt with, the commissioner of police must deal with the complaint in the way the commissioner of police considers most appropriate subject to the commission’s monitoring role. [18] Section 45(1) provides that the CMC has primary responsibility for dealing with complaints about, or information or matter involving, official misconduct. [19] Section 46 prescribes how the CMC deals with a complaint about, or information or matter involving, misconduct.10 Relevantly, it provides: (1) The commission deals with a complaint about, or information or matter (also a complaint) involving, misconduct by— (a) expeditiously assessing each complaint about misconduct made or notified to it, or otherwise coming to its attention; and (b) taking the action the commission considers most appropriate in the circumstances having regard to the principles set out in section 34. (2) The commission may take the following action— (a) deal with each complaint about official misconduct that it considers should not be referred to a public official to be dealt with; (b) refer a complaint about official misconduct to a public official to be dealt with by the public official or in cooperation with the commission, subject to the commission’s monitoring role; (c) without limiting paragraph (b), refer a complaint about official misconduct of a person holding an appointment in a unit of public administration that may involve criminal activity to the commissioner of police to be dealt with; … 9 See definition of ‘public official’ in schedule 2. 10 “Misconduct” is defined in schedule 2 to mean official misconduct and police misconduct. -- 5 of 13 -- 6 [20] The CMC’s monitoring role for official misconduct is set out in s 48 which provides, relevantly: (1) The commission may, having regard to the principles stated in section 34— … (c) require a public official— (i) to report to the commission about an investigation into official misconduct in the way and at the times the commission directs; or (ii) to undertake the further investigation into the official misconduct that the commission directs; or (d) assume responsibility for and complete an investigation by a public official into official misconduct. (2) … (3) If the commission assumes responsibility for an investigation, the public official must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission. (4) In this section— complaint, about official misconduct, includes information or matter involving official misconduct. [21] The expression “deal with” is defined in schedule 2 to mean: deal with, a complaint about misconduct or information or matter involving misconduct, includes— (a) investigate the complaint, information or matter; and (b) gather evidence for— (i) prosecutions for offences; or (ii) disciplinary proceedings; and (c) refer the complaint, information or matter to an appropriate authority to start a prosecution or a disciplinary proceeding; and (d) start a disciplinary proceeding; and (e) take other action, including managerial action, to address the complaint in an appropriate way. (iii) The Police Service Administration Act 1990 (‘PSA Act’) [22] Section 7.2(2)(c) of the PSA Act imposes a duty upon police officers who know or reasonably suspect that misconduct, as defined by that Act, has occurred to report that conduct to the commissioner of police and the chairman of the CMC. [23] The PSA Act defines ‘misconduct’ for the purposes of that Act to mean conduct that: (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or -- 6 of 13 -- 7 (c) does not meet the standard of conduct the community reasonably expects of a police officer. (iv) The Police Powers and Responsibilities Act 2000 (‘PPR Act’) [24] Section 12 of the PPR Act provides for its relationship to other Acts. Relevantly, it provides: (1) This Act does not affect the powers or responsibilities a police officer has under an Act included in schedule 1. (2) However, subsection (1) does not prevent a police officer from exercising a power or performing a responsibility under this Act for giving effect to an Act included in schedule 1. [25] The CM Act is included in schedule 1. The complaint, the investigation and the warrant [26] On 15 February 2012 ZP made a complaint against AXP to the QPS pursuant to s 7.2 of the PSA.11 [27] The s 7.2 complaint concerned the release of CCTV footage to the media that was published.12 It was revealed that on 10 February 2012 media outlets had received emails from an anonymous person offering to release the CCTV footage. The footage captured an interaction between police officers and a male person who had been arrested by police and taken to the basement of a police station. The male person complained about the use of force by the arresting officers.13 [28] On 16 February 2012 the complaint was assessed by CX as a misconduct matter who assigned WD to investigate it.14 CX referred the complaint to the CMC pursuant to ss 37 and 38 of the CM Act.15 [29] The CMC assessed the complaint under s 35(1)(a) of the CM Act and on 23 February 2012 referred the complaint back to the Commissioner of Police for investigation.16 [30] The CMC Matters Assessed report17 refers to the ‘conduct category’ as ‘official misconduct’ and refers to ‘status’ as: ‘referral to the QPS to deal with the complaint (investigate) – review – interim reports required before dealt with…’. The report also specifies a ‘review before’ date for the provision of ‘interim reports’. 11 Affidavit of CX sworn 29 May 2013: Appeal Book pages 64-73, paragraph 3 and annexure “A”. CX refers to a ‘complaint’ having been made under s 7.2. The duty imposed under that section is to report. It does not refer to complaints. 12 The complaint was made under s 7.2 of the Police Service Administration Act 1990 (Qld). 13 Complaint made on 6 February 2012. 14 Affidavit of CX, paragraph 4. 15 Ibid, paragraph 5. 16 Affidavit of CX, paragraphs 6 and 7 and annexure “D”. 17 Ibid, annexure “D”. -- 7 of 13 -- 8 [31] The CMC report also includes an ‘endorsement comment’ as follows: The allegation could, if proved, amount to official misconduct (breach of trust, criminal offence/dismissible disciplinary breach). After considering the principles which apply under the Act, it has been decided to refer the information to the [QPS]. That decision is considered appropriate also having regard to the nature of the complaint, the information provided in support of the concerns and the capacity of the QPS to deal with the matter, subject to the CMC’s monitoring role. [32] On 16 March 2012 the search warrant was issued under s 151 of the PPR Act. It was issued by a magistrate after hearing a sworn application by WD.18 The warrant identifies that it was sought in relation to two offences: misconduct in relation to public office under s 92 A of the Criminal Code and Fraud under s 408C(1)(a)(i) of the Code. The construction of item 3 of schedule 1 of the IP Act advanced by AXP [33] At the outset, it should be noted that the submissions made on behalf of AXP do not proceed on the basis that the warrant was obtained by WD in furtherance of the matter assigned to him by CX on 16 February 2012, rather than in furtherance of the investigation that was referred back to the Commissioner of Police from the CMC on 23 February 2012. [34] It is submitted for AXP that the information that was contained in the EBN did not arise out of a complaint itself under the PPR Act or the CM Act. That much may be accepted. [35] It is further submitted that neither did the information arise out of “an investigation “under” the CM Act” (original emphasis).19 AXP submits : …for this branch of the exclusion to apply, more is required than the mere fact that the complaint to which the investigation relates, may have been made under the CM Act. What is required is that the investigation itself must have been carried out “under” the CM Act. This construction ensures that full effect is given to all the words used in the exclusion. It is also the construction most consistent with the beneficial objects of the IP Act.20 [36] AXP contends that the investigation out of which the information in question arose was not carried out under the CM Act, but under the PPR Act.21 [37] AXP submits that the obligation imposed on the commissioner of police under s 41(2) of the CM Act to deal with a complaint (or matter) referred to the commissioner by the CMC is not to be conflated with the legal basis for any action taken in dealing with the complaint. He argues that this is demonstrated by the range of actions that may be taken to deal with a complaint as set out in schedule 2 to the CM Act. He contends that the 18 Appeal Book page 61-62. Section 150(5)(a) of the PPR Act requires an application for a search warrant to be sworn and to state the grounds on which it is sought. 19 Further submissions of the Appellant, 2 arch 2015, paragraph 8. 20 Ibid at paragraph 9. 21 Ibid at paragraph 10. -- 8 of 13 -- 9 authority to deal with the complaint by, for example, starting a disciplinary proceeding is derived from s 4.8 of the PSA Act not s 41(2) of the CM Act. Similarly, that the power to take managerial action is sourced in s 4.8 of the PSA Act not s 41(2) of the CM Act.22 [38] Insofar as the dealing with the complaint involves its investigation, AXP contends that this is not carried out under the CM Act. Rather: to the extent that the investigation involves the commissioner’s powers under s 4.9 of the PSA Act to give directions to members of the police force (such as directions that those members attend interviews for the purposes of the investigation), the investigation is undertaken “under” the PSA Act. To the extent that it involves the use of powers under the PPR Act, such as the search warrant powers in this case, it is undertaken “under” the PPR Act. In neither case is it undertaken “under” the CM Act.23 [39] AXP contends that this is supported by s 12(2) of the PPR Act,24 and by a proper construction of the CM Act as a whole. In the latter regard, AXP refers to the definition of “misconduct investigation” in schedule 2 as being an investigation performed by the CMC in performance of its misconduct function. He says that the reference in item 3 of schedule 1 to the investigation of a complaint “under” the CM Act is apt to refer to a misconduct investigation carried out by the CMC under the CM Act. Item 3, he contends, does not refer to an investigation carried out under the PSA Act or the PPR Act.25 [40] AXP cites Colbran v State of Queensland,26 and the authorities cited therein, as authority for the construction of item 3 for which he contends. Consideration [41] In our view, AXP’s construction of item 3 of schedule 1 should be rejected. [42] AXP’s submission that for the exclusion in item 3(b) to apply more is required than the mere fact that the complaint to which the investigation relates may have been made under the CM Act, of itself may be accepted. [43] However, the further contention that the investigation itself must be “carried out” under the CM Act is supported by neither the text of item 3 itself, nor the broader context of the CM Act. [44] The words “carried out” upon which the distinction which AXP’s submissions seek to make depends, do not appear in the text of item 3. They should not be read into that text. Contrary to AXP’s submissions, the construction for which he contends does not give full effect to all the words in the provision; it adds, impermissibly in our view, to those words. 22 Ibid at paragraph 13. 23 Ibid at paragraph 14. 24 Ibid at paragraph 15. 25 Ibid at paragraphs 16-17. 26 [2007] 2 Qd R 235. -- 9 of 13 -- 10 [45] The insertion of the words “carried out” alters the subject matter of item 3. Their inclusion alters the enquiry from whether the investigation out of which the information arose was one under the CM Act, to whether the particular means by which the investigation was carried out were under the CM Act. [46] On the authority of Colbran v State of Queensland, and the authorities cited therein, particularly Griffith University v Tang27 and Australian National Airlines Commission v Newman28, what is required for the exclusion created by item 3 to apply is for the investigation out of which the information arose to itself be ‘expressly or impliedly required or authorised’29 by the CM Act. In our view, the investigation was so authorised. The investigation was not a thing which could be done without reliance upon the CM Act to do it.30 [47] The investigation of a complaint about misconduct, or information or matter about misconduct, is a means of dealing with those things expressly authorised by the CM Act.31 The responsibility to deal with such matters is expressly conferred on the commissioner of police when those matters are referred to the commissioner by the CMC.32 The CM Act expressly authorises, indeed requires, the commissioner of police to deal with such matters referred by the CMC as the commissioner considers most appropriate.33 [48] In each of the examples given by AXP of other means of dealing with a complaint, namely starting a disciplinary proceeding or taking managerial action, the taking of the action is authorised by the CM Act. In that way, they can be seen to be action taken under the CM Act even if the particular means by which the action is taken is prescribed in other legislation. However, consideration of such other means of dealing with official misconduct as authorised by the CM Act should not distract attention from the statutory language of item 3 of schedule 1, which concerns investigations, not those other actions. [49] That an investigation of a complaint under the CM Act is apt to describe a misconduct investigation carried out by the CMC under the CM Act establishes only that such an investigation is one which will fall within item 3. It does not mean that the expression used in item 3 is inapt to describe other investigations. If the reach of item 3 was intended to be limited to investigations carried out by the CMC under the CM Act as AXP’s submissions suggest, one would have expected the legislature to have used the defined term “misconduct investigation” in item 3. It did not do so. 27 (2005) 221 CLR 99 (‘Tang’). 28 (1987) 162 CLR 466 (‘Newman’). 29 Tang at 130 per Gummow, Callinan and Heydon JJ. 30 Newman at 477 per Brennan J. 31 Definition of “deal with” schedule 2 to the CM Act. 32 S 41(2) CM Act. 33 S 42(5) CM Act. -- 10 of 13 -- 11 [50] That an investigation by the commissioner of police is authorised by, and thus under, the CM Act is also supported by s 46 of the CM Act which prescribes how the CMC deals with complaints about, or information or matter involving, misconduct (collectively called complaints). Under s 46(2)(a) the CMC could, in respect of a complaint about official misconduct deal with the matter itself. It could deal with it by investigating it. Mr Scott of counsel who appeared for AXP conceded that such an investigation by the CMC would be one under the CM Act.34 [51] Another means by which the CMC can deal with a complaint about official misconduct is to refer it to a public official to be dealt with by the public official, or in cooperation with the CMC.35 If the complaint were to be dealt with in cooperation with the CMC, on AXP’s construction, any investigation by the CMC would be under the CM Act, but any investigation by the public official would not be. If a document were to be created that contained both information that arose out of the CMC investigation and information that arose out of the public official’s investigation, then the privacy principles would not apply to the document to the extent of the former information, but would apply to the extent of the latter information. That would seem a curious result and not one in keeping with the purpose of the legislation. [52] A further means by which the CMC can deal with a complaint about official misconduct of a person who holds an appointment in a unit of public administration is to refer it to the commissioner of police to be dealt with if it may involve criminal activity.36 This may occur in addition to the referral to the public official. On AXP’s construction, if both the public official and the commissioner of police were to deal with the complaint by investigation, neither investigation would be under the CM Act, notwithstanding that the matter was referred to each under the CM Act. [53] Section 48 of the CM Act contains a number of provisions which, in our view, support a construction of item 3 of schedule 1 which would result in an investigation by the commissioner of police being an investigation under the CM Act. [54] Section 48(1)(b) permits a review or audit by the CMC of the way a public official has dealt with misconduct. That would permit an audit or review of an investigation by the public official, including the commissioner of police. A power given to the CMC to conduct such a review or audit is more consistent with the investigation being under the CM Act than it not being so. [55] Section 48(1)(c) permits the CMC to require a public official to undertake the further investigations that the CMC directs. Again, in our view, such a power of direction in respect of investigations is consistent with the investigation being under the CM Act. 34 Transcript 1-20 lines 1-20. 35 S 46(2)(b) CM Act. 36 S 46(2)(c) CM Act. -- 11 of 13 -- 12 [56] Section 48(1)(d) permits the CMC to assume responsibility for and complete an investigation by a public official into official misconduct. By s 48(3), if the CMC assumes responsibility for “an investigation” the public official must stop his or her investigation or any other action that may impede “the investigation” if directed to do so. The terms of ss 48(1)(d) and (3) strongly suggest that “the investigation” is the one investigation, not several investigations. [57] However, Mr Scott in his oral submissions argued that the investigation takes on a different character depending upon the stage of the investigation and by whom it is being performed. He submitted that if the power to assume responsibility for the investigation is exercised under s 48(1)(d), the investigation becomes one under the CM Act with the effect that any information arising from the investigation from the point in time when responsibility was assumed falls within the exclusion in item 3 of schedule 1.37 [58] The investigation may commence as an investigation under the CM Act and it may conclude as an investigation under the CM Act for the purposes of item 3 such that any information arising from either of those parts of the investigation would fall within the exclusion. However, if for a period the matter was investigated by a public official, in this case the commissioner of police, it would, for that time, not be an investigation under the CM Act. Any information arising out of that part of the investigation would fall outside of the exclusion. Again, if a single document contained information arising from different parts of the investigation, on AXP’s construction, the privacy principles would apply to some of the information, but not to other of the information. Again a curious result and not one which would readily be concluded was intended by the parliament. [59] In our view, that construction strains the language of the statute and is not supported by it. Nor is it supported by the evident intention of parliament to exclude from the privacy principles those documents which contain information arising from the investigation of misconduct. There can be no doubt that all of the several parts of the investigation identified in this analysis, whether conducted by the CMC or a public official, would each be an investigation of misconduct, and all are authorised by the CM Act. [60] In our view, s 12(2) of the PPR Act is consistent with the construction which we favour. Section 12(2) merely permits powers conferred by that Act to be used for giving effect to the CM Act. Here, the power to obtain and execute a warrant under the PPR Act was simply authorised by s 12(2) to give effect to the CM Act which authorised the investigation. The criminal offences in relation to which the warrant was obtained would, if established, be official misconduct under s 15(a) of the CM Act. The exercise of a power under the PPR Act in furtherance of an investigation does not alter the source of statutory authority to conduct the investigation. Section 12(2) recognises that. 37 Transcript 1-45 lines 42-45. -- 12 of 13 -- 13 Disposition [61] For these reasons, the construction of item 3 of schedule 1 of the IP Act urged upon the appeal tribunal by AXP should be rejected. As that was the only issue on the appeal, the appeal must be dismissed. -- 13 of 13 --