Case Citation: J v Two Individuals [2003] PrivCmrA 8

Subject Heading: Disclosure of quashed conviction information.

Law: Sections 85ZT and 85ZU of the Crimes Act 1914

Facts

In November 1993, the complainant was convicted of five counts of defrauding the Commonwealth. The complainant appealed against the sentence and four of the convictions were quashed.

Later, the complainant joined an organisation which was suffering conflict between its national and state chapters. The complainant, a member of a state chapter, alleged that the chair of the national body and the chair of another state chapter breached his privacy by disclosing his quashed convictions for Commonwealth offences to several other parties.

Press clippings about the quashed convictions had been provided to the national body anonymously via the post and were seen by other administrative officers of the organisation prior to the national chair receiving those clippings. The national chair then disclosed the press clippings to the organisation's board during the meeting.

The complainant alleged that the chair of the second state chapter disclosed the quashed conviction information to other members of the organisation during the subsequent meeting of the state chapter representatives; that the national chair also disclosed the quashed conviction information to other members of the organisation; and the national chair also disclosed the information to the complainant's employer.

The complainant initially used the organisation's internal complaint processes but was not satisfied with the outcome and complained to the Privacy Commissioner.

Issues

Section 85ZT(1)(a) of the Crimes Act 1914 (Cth) provides protection to individuals with a conviction for a Commonwealth offence that has been quashed, in that the individual is not required to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of the offence.

Section 85ZU(b)(i) of the Crimes Act provides that, where it is lawful for a person not to disclose that he or she was charged with, or convicted of, an offence, anyone else who knows, or could be reasonably expected to know that section 85ZT applies to the person in relation to the offence, shall not without the person's consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority.

In this case, the Commissioner's investigation focussed on the actions of the individuals involved, rather than the organisations they were connected with, because the allegations were made against the individuals concerned and individuals are subject to section 85ZU of the Crimes Act.

The Commissioner took the view that the chairman's disclosure of the quashed convictions to other board members at the national meeting breached section 85ZU(b)(i).

The basis for this view was as follows:

• The national chair was aware, under section 85ZT(1)(a) of the Crimes Act, that an individual with a quashed conviction is not required to disclose to any person for any purpose, the fact that the individual has been convicted of the offence; and
• There was evidence confirming that the press clippings had been given to board members at the meeting.

The Commissioner found that other disclosures by the national chair could not be substantiated on the basis that:

• the evidence from a number of members of the organisation was conflicting;
• it was established that the complainant had also disclosed his quashed convictions to other members of the organisation; and
• the press clippings were received in the organisation by post and were seen by a number of other people as they were passed to the national chair and there was opportunity for others besides the chair to have made the disclosures.

The Commissioner found that the allegation against the chair of the second state chapter could not be substantiated as:

• the person denied disclosing the quashed convictions;
• the evidence about the alleged disclosure of the quashed convictions by the chair of the second state chapter was contradictory; and
• the complainant agreed that the chair could not be reasonably expected to know that section 85ZT applied to the quashed conviction information as required.

The Commissioner also found that the alleged disclosure by the national chair to the complainant's employer could not be substantiated and was based only on a feeling by the complainant. No further action was taken on this aspect of the complaint.

Outcome

Following the investigation, the national chair apologised to the complainant for the breach.

The complainant had provided a detailed list of actions required to resolve the complaint. However, as only one aspect of the complaint was substantiated and on the evidence available in relation to loss and damage suffered by the complainant, the Commissioner decided that the apology from the national chair was an appropriate outcome. It discontinued the investigation on the grounds that the national chair had dealt adequately with the matter (s.85ZZC(2)(c)(i)) and that there had been no breach of privacy in relation to the other allegations (s.85ZZC(2)(a)).

COMMISSIONER OF THE FEDERAL PRIVACY COMMISSIONER June 2003