Australia: Government Bulletin - 3 September 2014

Last Updated: 7 September 2014
Article by Sylvia Fernandez and Christine Jones

Most Read Contributor in Australia, September 2016

Rightly or wrongly, there is a perception within the community that recommendations and referrals from the Independent Commission Against Corruption (ICAC) investigations do not result in prosecutions.

This perception was not dispelled by statements made by Eddie Obeid Snr after the ICAC recommended that the Director of Public Prosecutions (DPP) advise on commencing proceedings against him. Mr Obeid stated, among other things, that he thought there was a one per cent chance that he would face prosecution, his"legal advice [was] that the DPP [would] not lay any charges" and that the ICAC had "become a political arena and nothing they provide in evidence is admissible. I am very confident that no court of law will take any of these inquiries and I challenge ICAC to convince the DPP to take up any of those inquiries".

In the Sydney Morning Herald today, NSW Attorney General Brad Hazzard described Mr Obeid's comments as a pivotal moment in the community's loss of confidence in the legal system.

Recently, the ICAC has released updated reporting documents tracking its briefs of evidence to the DPP and prosecution outcomes.

In ICAC prosecution briefs with the DPP, the ICAC reports that briefs of evidence have been provided from it to the DPP following reports from its investigations (reports dated from September 2013 to June 2014) including Operation Cavill (investigation into the conduct of certain City Ryde Councillors and others), Operation Acacia (investigation into the conduct of Ian Macdonald, John Maitland and others) and Operation Cyrus (investigation into the conduct of the Hon Edward Obeid MLC and others concerning Circular Quay Retail Lease Policy). The ICAC is waiting on the DPP's decision as to whether any proceedings will be commenced.

In ICAC prosecution outcomes, the ICAC lists 32 investigations (reports dated from February 2009 to September 2013) and indicates the status or outcome of those investigations. By way of summary:

  • the 32 investigations involved referrals to the DPP in relation to 68 individuals. Of those:
    • the DPP's decision is pending in relation to 2 individuals
    • the DPP advised that no prosecution ought be commenced against 18 individuals
    • the DPP commenced prosecutions against 18 individuals for offences such as giving false statements/evidence
    • the DPP commenced prosecutions against 18 individuals for other offences under theCrimes Act (e.g. corruptly receiving a benefit)
    • the DPP commenced 9 prosecutions against individuals on a combined basis and against a further 3 individuals in relation to the additional offence of misconduct in public office
  • following 24 of the investigations the DPP commenced proceedings, including proceedings that resulted in a conviction, a dismissal or which are currently on foot

These reports go some way towards debunking the myth, but it is unlikely that community perception will change unless prosecutions are commenced in relation to the ICAC's more high profile investigations.

A Parliamentary inquiry into prosecutions arising from the ICAC's investigations is considering issues including whether gathering of admissible evidence for criminal offences should be one of the ICAC's functions, the effectiveness of the ICAC's and the DPP's processes and procedures and whether new offences should be created to capture corrupt conduct. Submissions for this inquiry were due by 1 August 2014, but no date has been announced as to when the inquiry is to report back.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.

In the media

Kogarah local court gives way to "quick and affordable justice"
Kogarah Courthouse will take on a new role after confirmation local court sittings will end in the middle of next year. Regular sittings of the state's new super tribunal, the NSW Civil and Administrative Tribunal, will be held at the courthouse from December 1. This body was established to consolidate the work of 22 former NSW tribunals (30 August 2014). More...

Nathan Tinkler tells ICAC that $53,000 donation was for Federal Liberal Party
Mining mogul Nathan Tinkler has told ICAC that a $53,000 donation to the NSW Liberal Party was intended for the federal party, and was organised by former Deputy Prime Minister Mark Vaile (29 August 2014). More...

Another NSW Liberal MP Stands Aside Over ICAC Allegations Of Illegal Donations
The Independent Commission Against Corruption's (ICAC) investigation into illegal developer donations to candidates in the 2011 NSW state election has widened its scope to see if Nathan Tinkler's development company, Buildev, paid Londonderry MP Bart Bassett an $18,000 illegal donation (27 August 2014). More...

The verdict is in: new jury system a winner - NSW
A new $4.2 million online jury management system brings the jury process into the 21st Century. It has been designed to speed up the jury processing times at courts by providing airport style electronic check-ins, on-the-spot excusals and eliminating the need for jurors to carry paper summons. Jurors now have their own personal online profile where they can update (21 August 2014). The Verdict is in: new jury system is a winner [PDF, 203kb]

Crown prosecutor appointed as a judge in NSW
Attorney General announces the appointment of Crown Prosecutor Julia Baly SC as a judge of the District Court of NSW (21 August 2014) Crown Prosecutor appointed as a judge [Accessible PDF, 121kb]

Committee ignores expert Oversight recommendations
The Committee has made recommendations that the NSW Ombudsman's and Police Integrity Commission's current functions and powers to independently investigate police misconduct in relation to critical incidents and monitor police critical incident investigations, should remain unchanged (19 August 2014). More...

In practice and courts

ICAC: Prosecution briefs with the DPP and outcomes
The tables on this page each provide information on prosecution briefs that are currently with the Director of Public Prosecutions (DPP), and the outcomes of DPP advice and prosecutions in relation to ICAC investigations over the past five years.
Last updated 26 August 2014 for: ICAC prosecution briefs with the DPP (113.8 kB) and ICAC prosecution outcomes (196.35 kB)

ICAC: Operation Spicer public inquiry witness list - week beginning 1 September 2014
Operation Spicer public inquiry witness list - week beginning 1 September 2014. Please note that this list is subject to change. More...

IPC NSW: Right to Know Week 2014
28 September 2014 to 5 October 2014
Right to Know Day is an annual event with the aim to increase awareness of individuals' right of access to government information and open, transparent governance. View more about this event »

Updated NCAT Form and Guidelines - Internal Appeals
The NSW Civil and Administrative Tribunal (NCAT) has updated its Notice of Appeal form and the accompanying NCAT Guideline 1: Internal Appeals (the Updated Guideline) (both dated August 2014). According to NCAT, the Updated Guideline includes an "appeal process diagram to illustrate how internal appeals are managed at NCAT" NCAT's media release (28 August 2014).

NCAT Fact Sheet - Provision of Registry Information and Assistance
NCAT has made available a Fact Sheet - How we can and cannot assist (August 2014), which "explains what information and assistance NCAT Registry staff can and cannot provide". In particular, the fact sheet notes that NCAT Registry staff "are unable to provide legal advice or to assist one party in a way that would give them an advantage over another party" NCAT's media release (27 August 2014)

Published - Article, Papers, Reports

Youth justice orders and supervision periods: 2012-13
Australian Institute of Health and Welfare
Summarises information on the number of supervised orders administered by state and territory youth justice agencies, and the periods of supervision experienced by young people in 2012-13 (26 August 2014) Youth justice orders and supervision periods: 2012-13

NCAT Legal BulletinNo 3 2014
NCAT has released the Legal Bulletin - Issue 3 of 2014 (August 2014), which provides summaries of relevant and interesting case law from across the various state jurisdictions, as well as a selection of recent NCAT Appeal Panel decisions Further information from NCAT


RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) [2014] NSWSC 1126
ADMINISTRATIVE LAW - judicial review - jurisdictional error - judicial review of a claims assessor's assessment under the Motor Accidents Compensation Act 1999 - whether the claims assessor misconstrued the evidence - whether error of law - whether adequate reasons given - whether award of damages manifestly unreasonable More...

Ibrahim v State Parole Authority of NSW [2014] NSWSC 1158
ADMINISTRATIVE LAW - judicial review - decision of State Parole Authority - plaintiff not provided with summary of document withheld pursuant to s 194 of the Crimes (Administration of Sentences) Act 1999 at parole hearing - defendants concede that plaintiff was denied procedural fairness at parole hearing More...


New South Wakes

Regulations and other miscellaneous instruments

Children's Court Regulation 2014 (2014-547) — published LW 22 August 2014
The object of this Regulation to is remake, with minor amendments the provisions of the Children's Court Regulation 2009, which is repealed on 1 September 2014. This Regulation makes provision with respect to an appeal under certain Acts in relation to a decision of the Children's Court, is if the decision concerned is made by the President of that court, to be an appeal to the Supreme Court instead of to the District Court and makes provisions in respect of savings and formal matters.

Crimes (Administration of Sentences) Regulation 2014 (2014-550) — published LW 22 August 2014
The object of this Regulation is to remake, with minor modifications, the Crimes (Administration of Sentences) Regulation 2008.

Gaming and Liquor Administration Amendment (Application Fee for Review of Decision) Regulation 2014 (2014-525) — published LW 22 August 2014
The object of this Regulation is to amend the Gaming and Liquor Administration Regulation 2008 to increase (from $250 to $500) the fee for making an application to the Independent Liquor and Gaming Authority for a review of a reviewable decision made by the Secretary of the Department of Trade and Investment, Regional Infrastructure and Services.

Independent Commission Against Corruption Amendment (Ministerial Code of Conduct) Regulation 2014 (2014-546) — published LW 21 August 2014
The object of this Regulation is to prescribe an applicable code of conduct for NSW Ministers for the purposes of section 9 of the Independent Commission Against Corruption Act 1988

Justices of the Peace Regulation 2014 (2014-527) — published LW 22 August 2014
The Regulation prescribes: the criteria for the appointment of persons as justices of the peace; that the oath of office is to be taken not later than four months after the date of appointment, the code of conduct for justices of the peace, additional circumstances to the governing Act under which a justice of the peace may be removed from office

Photo Card Amendment (Register) Regulation 2014 (2014-533) — published LW 22 August 2014
The object of this Regulation is to provide that information of a personal nature that is contained in the Photo Card Register may be released despite a provision of the Photo Card Act 2005 that provides for the security of such information if the information could otherwise be released under the privacy legislation and to provide that any information contained in the Photo Card Register may be released to Austroads for the purposes of the National Exchange of Vehicle and Driver Information System.

Photo Card Regulation 2014 (2014-532) — published LW 22 August 2014
The object of this Regulation is to remake, with minor changes, the Photo Card Regulation 2005 including prescribing the fee for the issue of a Photo Card, prescribing the grounds for exemption from and waiver of, payment of the fee and to require the holder of a Photo Card to notify the Authority if the holder changes his or her name or address, and makes it an offence for the holder to fail to do so.

Privacy and Personal Information Protection Regulation 2014 (2014-549) — published LW 22 August 2014 The object of this Regulation is to remake, with some changes, the Privacy and Personal Information Protection Regulation 2005. Some of the changes include prescribing the Inspector of Custodial Services as an investigative agency that is exempt from the need to comply with certain requirements of the Privacy and Personal Information Protection Act 1998 and providing that certain information contained in archives or held by a library, art gallery, museum or the State Records Authority is not personal information for the purposes of the Privacy and Personal Information Protection Act 1998.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Christine Jones
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