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Mullane v Attorney General: Police vetting Joanna Hayward
3 November 2017

TAXI

In a recent Human Rights Review Tribunal case, the New Zealand Transport Authority (NZTA) requested a Police vet of taxi driver Mr Mullane, to check he met the criteria of a “fit and proper” person for the renewal of his taxi licence.

The vetting requested by NZTA took place in late 2013, and resulted in a “red stamp” warning about allowing Mr Mullane unsupervised access to children or vulnerable persons on the basis of relevant information Police could not disclose. 

Mr Mullane argued that Police could only provide vetting information that had been investigated and found to be true, and that he should have been given an opportunity to comment on the red stamp result before issuing it. He maintained that by not doing so, Police had breached principle 8.

The Tribunal found the Police vetting of Mr Mullane did not breach principle 8, and noted that it was not bound by the findings of other complaints bodies such as the Ombudsman and the Privacy Commissioner.[1]

Authorising the vetting

Mr Mullane authorised the Police vetting when he applied for a renewal of his taxi licence. The consent form he signed authorised disclosure by Police of any charges and convictions, and also “any other information they hold about me,” and authorised NZTA to make all enquiries about his character and suitability to hold a passenger service licence.   

After NZTA received the “red stamp” recommendation, they requested Police provide information used in the vetting process. Police released some correspondence from a psychologist raising concerns, but withheld other information as this had been provided by someone who sought anonymity. 

NZTA wrote to Mr Mullane at the address he had given (but no longer lived at) asking him to submit to a psychological assessment. After receiving no response, they took the step of revoking his licence. Mr Mullane subsequently submitted a favourable psychological report, and his licence was reinstated. In the intervening month until his licence was reinstated, Mr Mullane had been unable to drive his taxi and so had suffered significant business losses, for which he sought damages.

Determining whether reasonable steps were taken

Principle 8 provides that before an agency uses any personal information about an individual, it must take such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, it is accurate, up to date, complete, relevant and not misleading.

The Tribunal’s decision emphasises that when applying principle 8, the surrounding context is everything. A key step is to identify the purpose for which the information is proposed to be used. In this case, the information was used to respond to the vetting request, and put NZTA on notice that further inquiries should be conducted in relation to Mr Mullane’s renewal application.

On the basis of the evidence presented, the Tribunal considered the steps taken by Police were reasonable to ensure that, having regard to the purpose for which the information was proposed to be used, the information was accurate, up to date and relevant.

The Tribunal found that the factual question of whether a “red stamp” response was correct, is not a principle 8 issue. It noted that the Privacy Act does not require agencies to hold only factually correct information. It is permissible for agencies to collect and hold personal information in the form of subjective information or opinion.

Police only had to be satisfied that the information recorded was relevant to the vetting request and that it was an accurate and complete record of the intelligence received. The Tribunal noted the Privacy Act was not concerned with whether an opinion was justified.[2]

Statutory context particularly relevant

The Tribunal noted that the purpose of the licensing provisions of the Land Transport Act was the protection of public safety. These provisions set out a code for the fit and proper person test, the assessment criteria and the information which the NZTA may take into account. The NZTA has a wide statutory discretion to seek and receive any information it thinks necessary and to consider information received from any source. Fairness and a duty to disclose potentially prejudicial information are addressed by the provisions of the Land Transport Act, including notice of any proposal to make an adverse decision.

In these circumstances, the Tribunal could see no basis for reading into principle 8 a duty on the Police to hear from the individual before using personal information when processing a vetting request.

Natural justice and principle 8

Mr Mullane claimed that Police had breached principle 8 by failing to provide him with an opportunity to comment before using his personal information for vetting purposes. That claim was rejected by the Tribunal.

The Tribunal noted that expectations of fairness and considerations of natural justice should not be conflated with the requirements of principle 8. The Tribunal noted, as it has previously, that it does not have a judicial review jurisdiction and principle 8 is not a backdoor for a review of administrative action. The obligations imposed by principle 8 are to ensure that the information proposed to be used is accurate.

In some cases, principle 8 may require an agency to check the accuracy of personal information with the individual concerned before using their personal information. For example, see Williams v ACC where ACC failed to check with Mr Williams about the state of his injury before cancelling his ACC payments, in breach of principle 8.

Commentary: Nature of police vetting and a ‘red stamp’

Police vetting is a process undertaken at the request of agencies responsible for approving people for roles that may involve contact with children, young people or other vulnerable persons. An essential component of the Police vetting process is that the person being vetted must give their consent. 

The vetting process canvasses all relevant information Police hold in their systems. It includes information obtained in the course of investigations that did not give rise to any criminal charges, as well as unsolicited information from the public and complaints not formally investigated.

A 2016 joint review of police vetting by the IPCA and OPC recommended a formal statutory framework should to be developed - in part to resolve the natural justice issues arising where a vetting statement is released without informing the person concerned about its nature or giving them an opportunity to respond. [3]

At the time Mr Mullane was vetted in 2013, the practice was that a “red stamp” recommendation would be issued when Police could not disclose relevant, substantiated, information for any of the following reasons: name suppression, confidentiality, likely prejudice to the maintenance of the law, or the information being in the nature of intelligence.

A red stamp was a warning about allowing the applicant unsupervised access to children or vulnerable persons on the basis of relevant information that Police held, but could not disclose.

Police vetting processes have since changed. Since mid-2015, Police stopped issuing “red stamps” and replaced these with a statement advising the agency concerned that Police hold relevant information that cannot be released.

Further information

  • Case note 225627 [2012] NZ PrivCmr 2: Man complaints that Police did not properly check his information before “red stamping” his vetting application (no breach of IPP 8).
  • For a decision in the immigration context finding no breach of principle 8, see NOP and TUV v Ministry of Business, Innovation and Employment [2014] NZHRRT 16.
  • For an example where the Tribunal found a breach of principle 8 in relation to a red stamp, see EFG v Commissioner of Police (2006).
  • For other examples where the Tribunal has awarded damages for breaches of privacy principle 8 - see  Taylor v Orcon; Williams v ACC.

[1] The Tribunal must reach a finding only on the evidence and submissions received by it. The hearing before the Tribunal starts afresh as a “de novo” hearing, not as an appeal from the finding of the Privacy Commissioner. In this case the Tribunal received detailed submissions in the course of a three day
hearing, including a closed hearing to view documents withheld by the Police from the plaintiff.

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