Commentary
Remedies
- Although VCAT held that there had not been an interference with WOS’s privacy, it also made a number of statements regarding the remedies he was seeking. These statements provide useful information on some issues VCAT is unlikely or cannot award under s 77 of the PDP Act and they include:
- making orders regarding the employment or dismissal of an employee;
- making costs orders in favour of the complainant in relation to costs incurred by the complainant in unrelated proceedings; and
- reviewing decisions of another court or tribunal.
IPP 2.1 – Use and disclosure
Interpretation of ‘purpose’ to mean ‘intention’
- VCAT interpreted the word ‘purpose’ in IPP 2.1 to mean ‘intention’ and this involves a subjective enquiry into the underlying motive of the organisation in carrying out the collection. This is distinct from an objective enquiry into the effect that the collection would have had. This interpretation is consistent with other decisions such as in Ng v Department of Education [2005] VCAT 1054 (see case note) and Roberts v Anglicare Victoria [2014] VCAT 1515 (see case note). However, this interpretation can also be contrasted to other decisions, such as SET v Department of Health and Human Services [2019] VCAT 113 (see case note), which have looked at the organisation’s statutory functions and enabling legislation to determine primary purpose.
IPP 2.1 does not contain a requirement of reasonable necessity
- VCAT also held that unlike IPP 1.1, IPP 2.1 does not contain any requirement of reasonable necessity. That is, it does not impose a requirement that the use/disclosure of the information is essential to the achievement of the primary purpose. The requirement is simply that the personal information be used/disclosed for the primary purpose, which requires consideration of the ‘why’.
Facts and decision
- Prior to separating from his ex-wife, WOS had two children with her and was neighbours with a Police Officer (PO1). PO1 became friends with WOS’s ex-wife. When WOS separated from his ex-wife he moved away.
- On 7 December 2018, WOS rang the Child Support Agency (CSA) to inquire about minimising the amount of child support he had to pay.
- During this telephone call, WOS said something which led the CSA to believe that he was going to self-harm. The CSA called Victoria Police to inform them of the threat so that they could perform a welfare check on WOS.
- That day, there was only a single patrol shift at the local Police station, which was staffed by PO1 and another Police Officer (PO2). PO2 attempted to call WOS on the number they had on file but were unable to reach him. PO1 decided to ring WOS’s ex-wife to ascertain whether WOS had the children with him and his location.
- During the call, PO1 told the ex-wife that WOS had called CSA and threatened self-harm and that they were trying to perform a welfare check on him. The ex-wife confirmed that WOS had the children with him and his location. Victoria Police was then able to locate WOS and confirm that he was not at risk of self-harm.
- However, WOS was upset about the disclosure and contended that it amounted to an interference of IPP 2.1.
IPP 2.1 – Use and disclosure
Submissions
- Victoria Police contended that the disclosure of his personal information to his ex-wife was authorised under IPP 2.1 as it was disclosed for the primary purpose of collection, being to facilitate a welfare check.
- WOS contended that IPP 2.1 was not satisfied because Victoria Police could still have facilitated the primary purpose (the welfare check on him) without disclosing aspects of his personal information to his ex-wife (that the CSA had informed them about the threat he had made to self-harm). Victoria Police responded that if they had not told EW about the threat, then she might not have been forthcoming about his location and whether the children were with him.
Decision
- VCAT held that the disclosure was authorised under IPP 2.1 as it was disclosed for the primary purpose of locating WOS and performing a welfare check. In reaching its decision, VCAT looked at s 9 of the Victoria Police Act 2013 (Vic.) which listed the general functions of Victoria Police, one of which was to protect life.
- In response to WOS’s argument, VCAT held that IPP 2.1 does not contain any requirement that the disclosure of personal information is necessary or essential to achieve the primary purpose. The requirement is simply that there is consistency between the primary purpose for which the personal information was collected and the reason it was disclosed. Accordingly, IPP 2.1 did not require VCAT to consider whether the welfare check could have occurred without the disclosure of WOS’s personal information to his ex-wife, because the reason for the disclosure was consistent with the purpose of performing a welfare check. .
IPP 2.1(d)(i) – Use or disclosure is necessary to lessen or prevent a threat to an individual’s life, health, safety or welfare
Decision
- VCAT held that the disclosure would also have been authorised under IPP 2.1(d)(i). The factors it considered included:
- ‘reasonably believes’ and ‘serious threat to individual’s life’ – Victoria Police had reason to assume that WOS might commit self-harm on the basis of the information provided to them by the CSA.
- ‘necessary’ – PO1 only disclosed the personal information to a select audience, being WOS’s ex-wife, that was proportionate to ensuring that WOS and children were located as soon as possible, given the ex-wife would likely have the precise location of the children as she had primary care responsibilities.
IPP 2.1(f) – Use or disclosure where required or authorised by law
Decision
- VCAT held that the disclosure would also have been authorised under IPP 2.1(f) because s 144B of the Family Violence Protection Act 2008 (Vic.) allowed for a disclosure of information about a person of concern (in this case being WOS) if the information sharing entity (in this case Victoria Police) believes that the person may commit family violence (in this case being self-harm).
About this decision
Venue: VCAT
Date of decision: 20/12/2021
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