Effective law enforcement often involves intelligence gathering and the sharing of personal information across state, territory and national borders. 

Increasingly, government agencies are requested to provide personal information to law enforcement agencies. Agencies are then faced with the sometimes difficult task of determining whether providing the personal information requested will breach the agency's privacy obligations.  This question becomes more complex when the request is made by a law enforcement agency in another jurisdiction.

The exchange of personal information for law enforcement purposes is regulated by Commonwealth, state and territory privacy legislation.  In most cases, that legislation will permit the disclosure of personal information by an agency where it is:

  • required or authorised 'by or under law'; or
  • otherwise reasonably necessary for law enforcement purposes by, or on behalf of, a law enforcement agency.

If an agency is compelled to disclose personal information sought by a requesting agency, complying with that request, even from an agency in another state or territory, will generally not offend privacy legislation. 

If an agency is not compelled, it must determine whether relevant local privacy legislation (and relevant local privacy principles) operate extraterritorially to permit the provision of personal information because it is reasonably necessary for law enforcement purposes.  While this is not always straightforward, in most instances, they will, so that disclosures to and between other Australian states or territories are permitted.

On each occasion that a request is received, it must be assessed against the elements outlined above before making a final decision about whether to release the information being sought.

The full article can be found at: https://www.maddocks.com.au/reading-room/cross-border-data-flows/ 

Authors: Kate Oliver, Senior Associate, and Erin Tucker, Associate, Public Law Group

Contacts: Melanie Olynyk, Partner, Kate Oliver, Senior Associate, and Erin Tucker, Associate, Public Law Group