Key privacy concepts - enforcement agencies and activities

Overview

The Key Privacy Concepts guidelines are intended to assist agencies to comply with the Queensland Privacy Principles (QPPs) by providing a guide to key words and phrases used in the QPPs in the Information Privacy Act 2009 (Qld) (IP Act).

Enforcement agencies and activities

The IP Act provides flexibility with personal information for law enforcement agencies and enforcement-related activities.

Law enforcement agencies

Law enforcement agency is defined in schedule 5 of the IP Act. For the entire IP Act, a law enforcement agency is the Queensland Police Service under the Police Service Administration Act 1990, the Crime and Corruption Commission, the community safety department, or any other agency to the extent that it has responsibility for:

• the performance of functions or activities directed to the prevention, detection, investigation, prosecution or punishment of offences and other breaches of laws for which penalties or sanctions may be imposed
• the management of property seized or restrained under a law relating to the confiscation of the proceeds of crime
• the enforcement of a law, or of an order made under a law, relating to the confiscation of the proceeds of crime
• the execution or implementation of an order or decision made by a court or tribunal; or
• the protection of public revenue.

Additional enforcement bodies for QPP 6

QPP 6.2(e) allows the use of personal information by, and the disclosure of personal information to, law enforcement agencies for enforcement-related activities.

For QPP 6, a law enforcement agency is all of the above and an enforcement body under the Privacy Act 1988 (Cth), which includes:

• the Australian Federal Police
• Customs
• any government body of the Commonwealth with responsibility for revenue protection or administering or performing a function under a law imposing penalties or sanctions; or
• any government body of a State or Territory (including Queensland) with responsibility for revenue protection or administering or performing a function under a law imposing penalties or sanctions.

Enforcement-related activities

Schedule 5 of the IP Act defines enforcement-related activity as:

• the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of laws imposing penalties or sanctions
• the enforcement of laws relating to the confiscation of the proceeds of crime
• the protection of the public revenue
• the prevention, detection, investigation or remedying of seriously improper conduct
• the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal.

Criminal offence

Criminal offences are defined in the Criminal Code Act 1899 (Qld).  Criminal offences are also contained in other legislation, such as the Vegetation Management Act 1999 (Qld) or the Animal Care and Protection Act 2001 (Qld).

Law imposing a penalty or sanction

If a law requires someone to pay a sum of money for breaching it, it is a law imposing a penalty.

A law imposes a sanction if it takes away a right or privilege or allows some disadvantaging action other than the imposition of a monetary penalty.  For example:

• removal or suspension of a licence or entitlement
• disciplinary action (such as suspension, a pay cut, or dismissal); or
• the withdrawal of a benefit.

Proceeds of crime

Laws relating to confiscation of the proceeds of crime enable the proceeds, benefits and property derived from criminal activity to be traced and provide for the forfeiture of property used in connection with the commission of criminal offences.

There are two confiscation schemes in Queensland:

• Conviction based confiscation: administered by the Office of the Director of Public Prosecutions. This occurs when a direct link can be established between a crime of which someone has been convicted and an asset.
• Confiscation without conviction (civil confiscation):  this is administered by the Crime and Corruption Commission under the Criminal Proceeds Confiscation Act 2002 (Qld) and allows property to be restrained on the basis of reasonable suspicion of serious crime-related activity.

Enforcement

Enforcement encompasses the whole activity, from initial inquiries to the hearing of a matter in a court or presentation to a decision maker or non-judicial member. It also includes gathering intelligence to support the investigation function of enforcement bodies or providing information to the relevant enforcement body.

Revenue

The public revenue includes levies, taxes, rates and royalties charged on a regular basis. It does not include occasional charges, such as fines, or the recovery of the occasional overpayment by an agency.

Protection of the public revenue includes the activities of agencies and bodies intended to ensure that lawful obligations are met by those subject to the charges, such as routine collection, audits, investigatory and debt recovery actions.  Prosecution for failure to pay the charge would fall under the criminal law exception.

It does not include activities intended to identify and eliminate inefficient but lawful spending of public money.

Seriously improper conduct

Seriously improper conduct refers to serious breaches of standards of conduct associated with a person’s duties, and includes:

• corruption, abuse of power, or dereliction of duty
• breach of obligations that would warrant the taking of enforcement action against the person; or
• any other seriously reprehensible behaviour.

In the Queensland public service, seriously improper conduct can be identified by reference to:

• official misconduct under the Crime and Corruption Act 2001 (Qld)
• misconduct under the Police Service Administration Act 1990 (Qld) or the Public Sector Act 2022 (Qld)
• other conduct under chapter 2, part 8 of the Public Sector Act 2022 (Qld) where it is serious and improper
• a breach of the Public Sector Ethics Act 1994 (Qld) or of a Code of Conduct under that Act; or
• a criminal offence.

Misconduct of this type may also be set out in specific statutes applying only to certain agencies.

Conduct of proceedings

Proceedings before a court or tribunal includes instituting or carrying on an action at or before the court or tribunal, or taking a legal step or measure at the court or tribunal.

For the IP Act, court includes a justice and a coroner.