Commentary
IPP 2.1(e) – Use or disclosure is necessary to investigate or report unlawful activity
- This decision indicates that the term ‘unlawful activity’ in IPP 2.1(e) is to be interpreted broadly. It clearly encompasses conduct that infringes a statute or the criminal law, and potentially some civil laws. However, exactly how far encompassing the term is, is not clear, given the Victorian Supreme Court of Appeal (VSCA) focused on breaches of established norms in circumstances where those norms have importance and have sanctions associated with their contravention. It did not consider conduct prohibited through internally set policies or contracts.
- This was an issue picked up in Kudleck v Victoria University [2013] VCAT 1971 (see case note), where VCAT held that the term ‘unlawful activity’ under the predecessor Information Privacy Act 2000 (Vic.) did not extend to potential breaches of the Respondent’s internal policies as they were neither statutory legislation or subordinate rules or instruments. However, given the approach taken by the VSCA, VCAT’s interpretation in Kudleck is less tenable. This is further supported by the fact that the federal Privacy Act 1988 (Cth.) contemplates exceptions for breaches of internal policies (see s 16A which creates a general permitted situation for “misconduct of a serious nature”.
Facts and decision
- Mr McLean was a licensed horse trainer. In 2019, Victoria Police executed a search warrant on Mr McLean’s premises and seized six syringes containing a substance banned in horse racing.
- Victoria Police then informed Racing Victoria of their finding and Racing Victoria conducted a disciplinary hearing into Mr McLean under the Rules of Racing.
- Mr McLean contended that s 456 of the Crimes Act 1958 (Vic.) (Crimes Act) imposed an implied duty of confidentiality on Victoria Police relating to the information derived from the execution of the search warrant and that this implied duty meant Victoria Police could not disclose this information to Racing Victoria. Given that Victoria Police had disclosed the information and breached this implied duty, Mr McLean sought an injunction to prevent Racing Victoria using the information to charge him with any breaches of the Racing Rules.
- The Victorian Supreme Court (VSC) and on appeal the VSCA found that s 456 of the Crimes Act did not impose an implied duty of confidentially on Victoria Police. The VSCA then assessed the question — even if there was no implied duty of confidentiality, was the disclosure of the information by Victoria Police to Racing Victoria lawful under IPP 2.1 and whether a breach of this would have led to injunctive relief.
- It’s important to note that Mr McLean did not allege a breach of the Privacy and Data Protection Act 2014 (Vic.) (PDP Act), rather this was something that the trial judge looked at in their reasoning to determine that no implied duty of confidentiality existed.
IPP 2.1(e) – Use or disclosure is necessary to investigate or report unlawful activity
Submissions
- Victoria Police contended that its disclosure to Racing Victoria was authorised under IPP 2.1(e). Mr McLean alleged that non-compliance with the Rules of Racing were not an unlawful activity as the Rules of Racing did not establish a crime or breach of statute. Whilst Victoria Police took the view that unlawful activity means “conduct that infringes a statutory or common law” extending to the Rules of Racing.
Decision
- The VSCA held that the disclosure was authorised under IPP 2.1(e):
- ‘reason to suspect’ — Victoria Police had reason to suspect unlawful activity was occurring after having found a banned substance in possession of a horse trainer.
- ‘unlawful activity — extended to contravention of the Rules of Racing because the Rules of Racing “directed at identifying norms, the breach of which is unlawful.” In coming to this conclusion, VSCA looked at factors such as: the control of racing was necessary to maintain the health and wellbeing of horses and jockeys; the Rules of Racing prescribed various obligations on trainers and sanctions for contravention; and the possible sanctions included fines.
- ‘relevant person or authority’ — Racing Victoria was a relevant person or authority because the word ‘relevant’ “simply requires a sufficient connection between the unlawful activity and statutory responsibilities of the person or authority.” In this case, Racing Victoria had statutory responsibilities to maintain the integrity of horse racing in Victoria and so a connection was established.
IPP 2.1(f) – Use or disclosure is required or authorised by law
- Victoria Police contended that the disclosure was also authorised under IPP 2.1(f) because Police Officers had common law powers and duties to protect the public. The VSCA did not evaluate this argument given that it had found the disclosure authorised under IPP 2.1(e). It did, however, state that the term ‘required or authorised by or under law’ should be construed broadly.
IPP 2.1(g)(i) – Use or disclosure necessary by law enforcement agency to prevent, detect, investigate, prosecute or punish criminal offences
- The VSCA also held that the disclosure was authorised under IPP 2.1(g)(i). Mr McLean had argued that Racing Victoria is not a law enforcement agency but the VSCA disagreed, finding that the broad definition in s 3 of the PDP Act captured entities like Racing Victoria which is responsible for regulating the racing industry in Victoria and can impose sanctions for breaches of the Rules of Racing.
IPP 2.1(g)(iv) – Use or disclosure necessary by law enforcement agency to prevent, detect, investigate, or remedy seriously improper conduct
- The VSCA also held that the disclosure was authorised under IPP 2.1(g)(iv), interpreting the term ‘serious improper conduct’ to extend to breaches of the Rules of Racing given the importance of protecting the health and wellbeing of horses and their jockeys.
About this decision
Venue: VSC
Date of decision: 10/09/2020
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