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Types

Topic(s): Disclosure | Law enforcement and national security

K v Commonwealth Agency [2009] PrivCmrA 14

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Case Citation:

K v Commonwealth Agency [2009] PrivCmrA 14

Subject Heading:

Disclosure of spent conviction information

Law:

Sections 85ZV and 85ZW in Part VIIC Division 3 of the Crimes Act 1914 (Cth)

Section 85ZZH(c) in Part VIIC Division 6 of the Crimes Act 1914 (Cth)

Facts:

The complainant was employed by a Commonwealth agency, which held a record containing old Commonwealth conviction information about the complainant. This old conviction information was protected under the Commonwealth spent convictions scheme because it was ‘spent’ under Part VIIC of the Crimes Act.

A state court ordered the agency via subpoena to produce documents about the complainant's employment to the court. The agency disclosed these documents, which included information about the complainant's spent conviction, to the court without the complainant's consent.

The complainant alleged that the disclosure of their spent conviction information was in breach of the Crimes Act.

Issues:

Under section 85ZV and 85ZW in Division 3 of the Crimes Act, anyone, including Commonwealth agencies, is prohibited from disclosing protected old conviction information to any person or Commonwealth or State authority without the consent of the person concerned, unless an exclusion contained in Division 6 applies.

Section 85ZZH(c) in Division 6 of the Crimes Act states that Division 3 does not apply in relation to the disclosure of information to or by a court or tribunal established under a Commonwealth, State or Territory law, for the purpose of making a decision, including a decision in relation to sentencing.

Outcome:

The Commissioner investigated the matter under section 85ZZC of the Crimes Act.

The Commissioner formed the view that the disclosure of the complainant's spent conviction information by the agency met the requirements of section 85ZZH(c) because it was a disclosure to a court, and was therefore allowed under the Crimes Act.

The Commissioner closed the investigation under section 85ZZC(2)(a) of the Crimes Act, as there was no breach of Division 3 of the Crimes Act in the circumstances.

OFFICE OF THE PRIVACY COMMISSIONER

November 2009