Zeaqj v Victoria Police [2018] VCAT 1733

Commentary

Remedies

Principles relevant to assessing non-economic loss

Evidence needed to support claim for non-economic loss

  • The decision highlights that to be successful for compensation, complainants need to provide supporting evidence to demonstrate their loss. In this case, Mr Zeqaj alleged injury to hurt feelings but did not provide any evidence that could quantify his loss, such as medical records. VCAT stated although “it is not necessary for medical evidence to be produced… where a large amount of compensation is claimed, one would expect to see some medical evidence in support.” Similarly, Mr Zeqaj alleged Victoria Police’s disclosures lead to possible job losses and an inability to travel but VCAT held that there was no evidence to support that this had occurred.

Facts and decision

  • In 2011, Victoria Police commenced an investigation into Mr Zeqaj, believing that he and members of his family were involved in the cultivation and sale of large quantities of cannabis.

IPP 2.1 – Use and disclosure

Submissions

  • Mr Zeqaj alleged that Victoria Police interfered with IPP 2.1 when it disclosed to the Australian Taxation Office (ATO) that Mr Zeqaj was being investigated for “trafficking drugs of dependence”.
  • Victoria Police contended that the disclosure was exempt from IPP 2.1 because of s 15 of the PDP Act, which permits non-compliance with IPP 2.1, and other IPPs, if a law enforcement agency reasonably believes it is necessary for one of more of its law enforcement functions.
  • Victoria Police contended it disclosed the personal information as part of seeking Mr Zeqaj’s tax returns for income years 2004 to 2010 in an investigation into the extent of income derived from criminal activity by comparing legitimate income against known assets.

Decision

  • VCAT held that the disclosure to the ATO did not fall within the exemptions in s 15 of the PDP Act.
  • VCAT agreed that Victoria Police was carrying out a law enforcement function or activity being the detection and apprehension of criminal offenders. However, Victoria Police did not provide any evidence to support their position that they had formed a reasonable belief that non-compliance with IPP 2.1 was necessary.
  • VCAT interpreted s 15 as including a requirement that, in order to form this reasonable belief, Victoria Police needed to demonstrate that it had turned its mind to the fact that IPP 2.1 would otherwise apply. In the absence of any evidence, Victoria Police could not demonstrate that it had formed a reasonable belief that non-compliance with IPP 2.1 was necessary.
  • This finding was not material, however, as VCAT held that the disclosure to the ATO was authorised under IPP 2.1. The primary purpose of collection was to prevent the commission of offences and detect and apprehend criminals and this was the purpose for which it was disclosed to the ATO.
  • VCAT also held that the disclosure would have been authorised under IPP 2.1(e) because of the investigation Victoria Police was carrying out into Mr Zeqaj and family members; and IPP 2.1(f) because Victoria Police was obligated under s 355-70(1) of the Tax Administration Act 1953 (Cth.) to provide a reason for requesting the tax returns.

IPP 2.1 – Use and disclosure

Submissions

  • Mr Zeqaj alleged that Victoria Police interfered with IPP 2.1 when it disclosed to a third party that Mr Zeqaj was a “known criminal identity”. Victoria Police wrote to the third party cancelling their firearm license on the basis that the third party had been associating with Mr Zeqaj and others.
  • Mr Zeqaj became aware of this disclosure because he and the third party were close relatives.
  • Victoria Police contended that the disclosure was exempt from IPP 2.1 because of s 15(d) of the PDP Act. It contended that the purpose of the Firearms Act 1996 (Vic.) (Firearms Act) was to ensure the proper functioning of a system for licensing the possession, carriage and use of firearms, and that a decision to cancel a firearms licence required the licence holder to be provided with reasons.

Decision

  • VCAT held that the disclosure to the third party did not fall within the exemption in s 15(d) of the PDP Act.
  • VCAT agreed that the function or activity being carried out by Victoria Police when disclosing Mr Zeqaj’s personal information to the third party was a community policing function being the entitlement of firearm license holders to hold such a license. However, Victoria Police did not provide any evidence to support their position that they had formed a reasonable belief that non-compliance with IPP 2.1 was necessary.
  • VCAT interpreted s 15(d) as including a requirement that, in order to form this reasonable belief, Victoria Police needed to demonstrate that it had turned its mind to the fact that IPP 2.1 would otherwise apply. In the absence of any evidence, Victoria Police could not demonstrate that it had formed a reasonable belief that non-compliance with IPP 2.1 was necessary.
  • This finding was not material, however, as VCAT held that the disclosure to the third party was authorised under IPP 2.1 because it was necessary in order to enable the third party a fair opportunity to respond in the event that it wanted to contest Victoria Police’s decision to cancel their firearm license.
  • VCAT also held that the disclosure would have been authorised under IPP 2.1(f) as s 47 and 48 of the Firearms Act required Victoria Police to inform the third party of the reasons for their decision.

IPP 3.1 – Data quality

Submissions

  • Mr Zeqaj alleged that referring to him as a “known criminal identity” in the firearm notice served to the third party interfered with IPP 3.1 because no charges or convictions had been recorded against him.
  • Victoria Police contended that the personal information was accurate, complete, and up to date because Mr Zeqaj had been interviewed for allegedly assaulting police and associating with known convicted criminals. He therefore had a “criminal record” in the wider sense as it was used in their Police Manual – that is records containing information associating an identifiable individual with criminal behaviour, whether or not they had been charged or found guilty.

Decision

  • VCAT held that Victoria Police had interfered with IPP 3.1 as it had not demonstrated that it had taken reasonable steps to ensure that the reference to Mr Zeqaj as a “known criminal identity” in the notice served to the third party was accurate.
  • There was an absence of evidence to show that Mr Zeqaj was or had been directly or indirectly engaged in any criminal acts. Victoria Police would have become aware of this lack of evidence if they had made any enquiries to verify whether the description of him as a ‘known criminal identity’ was accurate.

Remedies

  • Mr Zeqaj sought $100,000 as compensation. VCAT awarded Mr Zeqaj $1,000 for non-economic loss. The factors VCAT took into account when awarding this compensation included:
    • difficulty in distinguishing between the harm caused by an interference of with IPP 3.1 and the fact that the harm would not have arisen except for a disclosure, and that in this case the disclosure was permitted under IPP 2.1;
    • Mr Zeqaj’s own explanation of how the interferences caused him harm;
    • the fact that Mr Zeqaj did not provide any medical or other evidence to support his harm;
    • Mr Zeqaj having a long-standing antipathy towards Victoria Police that was unrelated to the interference of privacy, and the difficulty in disentangling this history of antipathy from his self-described harm arising from the breach of IPP 3.1; and
    • that VCAT made orders that a copy of its decision must be attached to any physical and electronic records relating to the disclosure of the inaccurate information as a means of correcting the record.

About this decision

Venue: VCAT
Date of decision: 20/11/2018