Scrutiny of Acts and Regulations Committee

Alert Digest No 12 of 2007

Ministerial Correspondence

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Justice and Road Legislation Amendment (Law Enforcement) Bill 2007

The Bill was introduced into the Legislative Assembly on 17 July 2007 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 6 August 2007 and made the following comments in Alert Digest No. 10 of 2007 tabled in the Parliament on 7 August 2007.

Committee’s Comments

Report pursuant to the Charter of Human Rights and Responsibilities Act 2006 and section 17(a)(iii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions’ – section 17(a) (iv) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000

Keywords: Privacy – Right to community protection (right to life) – Whether powers constitute a form of additional administrative (non-judicial) punishment – Special rights of children in criminal process – Right not to be punished more than once – Right to appeal administrative decision – non-reviewable decision – Reasonable limitations.

The Committee notes that on application by a media organization the Chief Commissioner of police has a discretion to authorize the provision of agency photographs of convicted persons that may have been taken on arrest, at interview or during investigation. The provisions in the Bill include criteria to be considered before the Chief Commissioner may agree to give the photographs, including, amongst others the likely impact on a victim and the family of the convicted person. The Bill also includes a new definition of ‘person who has been found guilty of an offence’ to make allowance for any relevant appeal period that may be exercised by a person found guilty of an offence. The amendments include offences for misuse of such photographs by media organizations and increased penalties for misuse of information by Members and former Members of the police force. Where media organizations make only authorized use of such photographs they are protected against actions in defamation or breach of confidence.

The Committee notes the amendments are said to overcome the restriction currently found in the Freedom of Information Act 1985 which require the consent of the convicted person before the photographs may be released.

The Committee also notes that the provisions in the Bill may involve access by the media to agency photographs of persons under 18 years of age.

The Committee further observes that the provisions do not appear to allow for a review or appeal of the decision to release photographs by the person photographed or any other person likely to be effected by the decision.

The Committee notes the Statement of Compatibility concerning the competing human rights engaged by the amendments, namely, the positive duty on the criminal justice and law enforcement system to protect life (right to life) and freedom of expression (right to have information concerning the workings of the criminal justice system) and on the other hand the right of privacy of convicted persons.

The Committee observes that the provision of agency photographs may be characterised as the imposition of an additional form of punishment (shaming offenders) and that if it is so characterised it may constitute a punishment imposed by means of an administrative act and not by judicial merits sentencing.

The Committee further observes that once an authorisation is made and an agency photograph is published in a generally available publication’ then the Information Privacy Principles’ as it would appear, will no longer apply to the photograph rendering it amendable to further secondary and unlimited publication.

The Committee will seek further advice from the Minister concerning the following matters–

Will or should there be additional safeguards or accountabilities where access to an agency photograph involves release of photographs of children?

Will the provisions in the Bill apply to persons found guilty of an offence but who have had no formal conviction recorded?

Is there any form of review or appeal against a decision to grant access to agency photographs by persons photographed or who may be affected?

If the procedure introduced by the Bill may be characterised as an additional form of punishment, one taken through administrative act, should the procedure involve judicial approval or oversight?

Once published in a ‘generally available publication’ within the meaning of the Information Privacy Act 2000 will it be possible for secondary publication by media organisations who are not immediately bound by the authorisation provisions as contained in the provisions of the amendments?

Pending the Minister’s response the Committee draws attention to the provisions and considers that the Parliament must determine whether they achieve a fair and proportionate balance between the public interest, the interests of victims, witnesses and their families and of convicted persons.

Minister’s Response

Thank you for your letter of 7 August 2007, in which you seek my advice in relation to amendments to the Police Regulation Act 1958 clarifying the circumstances in which police may release ‘agency photographs’ to the media.

These amendments fulfil a commitment made by the former Premier in October 2005, in response to concerns raised by the media and the community following a decision of the Victorian Civil and Administrative Tribunal (VCAT). They establish a process for release of photographs of convicted offenders to the media which balances individual and community policing interests.

I will deal with each of the Committee's questions in turn.

Will or should there be additional safeguards or accountabilities where access to an agency photograph involves release of photographs of children?

In determining whether to release an agency photograph to the media, the Chief Commissioner must strike a balance between the public interest, the interests of the victim of and any witness to the offence for which the person has been found guilty, and the interests of the person photographed. In considering whether the public interest is served by the release of the photograph, section 118T(a) of the Act provides that the Chief Commissioner must have regard to matters including the age of the person photographed. This specific guidance is an additional safeguard for young people, because it directs the Chief Commissioner to consider the age of the person photographed as an element of the public interest, as well as having regard to the interests of the person photographed.

The Chief Commissioner is also required to consider other matters such as any other legal impediments or any information known to the Chief Commissioner as to the person being suspected on reasonable grounds of having committed other offences. The legal impediments would include provisions under the Children, Youth and Families Act 2005 that generally restrict publication of proceedings that may identify a child or other party to the proceeding, including a picture of a child (section 534).

Will the provisions in the Bill apply to persons found guilty of an offence but who have had no formal conviction recorded?

New section 118R of the Act provides that the provisions in the Bill apply to persons “found guilty of an offence”. The sentence given to the person photographed is one of the elements of the public interest to which the Chief Commissioner must have regard under new section 118T(a)(iii) of the Act.

Is there any form of review or appeal against a decision to grant access to agency photographs by a person photographed or who may be affected?

All police conduct is subject to the scrutiny of the Director, Police Integrity. The decision of the Chief Commissioner (or her delegate) to grant access will be subject to the inherent judicial review powers of the Supreme Court.

If the procedure introduced by the Bill may be characterised as an additional form of punishment, one taken through administrative act, should the procedure involve judicial approval or oversight?

The primary purpose of the procedure introduced by the Bill is to enable the release of agency photographs to assist Victoria Police to fulfil its community policing functions and as a deterrence measure, not to additionally punish offenders through administrative act. I therefore do not believe it necessary that special procedures for judicial approval or oversight be built into this procedure. In any event, as indicated above, the inherent judicial review powers of the Supreme Court apply to this procedure.

Once published in a 'generally available publication' within the meaning of the Information Privacy Act 2000, will it be possible for secondary publication by media organisations who are not immediately bound by the authorisation provisions as contained in the provisions of the amendments?

The offence provisions of the legislation are drafted to refer only to the media organisation that initially seeks access to the agency photograph, and therefore will not apply to secondary publication. I note that the reference to a ‘generally available publication’ in the question is not relevant to the grant of access to a media organisation under the Bill. Section 11 of the Information Privacy Act 2000 is intended to apply to information generally available to the public by a public entity. The agency photographs held by police are not so available.

I thank you for the opportunity to respond to the Committee’s questions.

Bob Cameron MP
Minister for Police and Emergency Services

20 August 2007

The Committee thanks the Minister for this response.

Committee Room
17 September 2007

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria