Australia: NSW Government Bulletin - 12 November 2014

Last Updated: 19 November 2014
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, July 2017

In a decision dated 10 November 2014, Hoeben CJ at Common Law has dismissed an application by the Deputy Senior Crown Prosecutor Margaret Cunneen SC and two others. The application sought declarations and orders restraining in relation to an investigation by ICAC known as Operation Hale. Operation Hale concerns allegations that on 31 May 2014, the first and second plaintiffs, with the intention to pervert the course of justice, counselled the third plaintiff to pretend to have chest pains and that the third plaintiff, with the intention to pervert the course of justice, did pretend to have chest pains to prevent investigating police officers from obtaining evidence of the third plaintiff's blood alcohol level at the scene of a motor vehicle accident.

The declarations sought were that the ICAC was exceeding its jurisdiction in conducting the investigation and that the decision to hold a public inquiry was invalid and a nullity. Orders were sought restraining the ICAC from continuing to investigate the allegations and from conducting a public inquiry.

The grounds upon which the relief was sought were that the defendant was acting beyond its jurisdiction in investigating the allegations, that the defendant took into account an irrelevant consideration and exceeded its power by deciding to conduct a public hearing.

In his decision, his Honour firstly gave reasons for declining to make an order under Rule 59.9 of the UCPR that the ICAC provide the plaintiffs with a copy of its decision to investigate and its decision to hold a public inquiry and a statement of reasons for each decision.

His Honour's reasons for declining to make the order were based on s.111(3) of the ICAC Act (the Act) which excuses officers of the ICAC, which should be read as applying to the ICAC itself, from producing in any Court any document or divulging or communicating to any Court any matter, except in the circumstances specified by the section. His Honour also had regard to discretionary factors such as that exposing the reasons may be prejudicial to the investigation and that judicial review was available to the plaintiffs once recommendations and findings had been made in an ICAC report.

Acting beyond jurisdiction

The plaintiffs submitted that the failure by the ICAC to provide reasons for its decision to conduct an investigation meant that in conducting its investigation it was acting beyond power and further submitted that the ICAC was required to provide reasons at each step of the process of the investigation. His Honour rejected this submission as having no support in the Act or at common law.

The plaintiffs submitted that there was no suggestion in the allegations that any alleged conduct in the matter could adversely affect any public official beyond that which is ordinarily involved in perverting the course of justice. The plaintiffs submitted that there were two requirements in section 8(2) of the Act which needed to be satisfied and that the two tests could not overlap or be satisfied by the same conduct. Those requirements were that the conduct needed to "adversely affect... the exercise of official functions by a public official" and secondly that it must be conduct of a type which could involve any of the matters set out in s.8(2)(a) to (y). The plaintiffs submitted that the ICAC's interpretation relied on the same conduct and that such an interpretation would give wide powers to ICAC to "create in it a secret crime body to investigate any alleged attempt to pervert the course of justice". The plaintiffs further submitted that if the Act did confer such a parallel power that citizens' fundamental rights to silence or against self incrimination would be overthrown or abrogated and the principle of legality would in those circumstances require that the intention be expressed with irresistible clarity.

His Honour rejected these submissions, finding that there was nothing in the Act to suggest that the two tests in s.8(2) could not be met by the same conduct and that this was reinforced by the broad language of the section. His Honour also rejected the submission on the basis of legality, expressing the view that whilst provisions which infringe general law rights should be carefully examined and possibly read down, the gateway provisions of the Act should not be read down in the same way. His Honour also made reference to Lee (no.1) v NSW Crime Commission [2013] HCA 39 where Gageler and Keane JJ repeated that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve".

Irrelevant considerations

The plaintiffs' submissions centred on the argument that there was no suggestion that the first plaintiff did anything in her role as Deputy Senior Crown Prosecutor in relation to the allegations, but that the allegations concerned conduct in a private capacity.

His Honour rejected those submissions, finding that there was no basis in the Act to support the proposition that the status of the person was something that the ICAC could not consider in exercising its powers. His Honour noted that the ICAC's jurisdiction does not depend on the first plaintiff being an officer of the DPP.

The plaintiff also submitted that the conduct alleged could not amount to perverting the course of justice and submitted that the phrase "course of justice" was a reference to the due exercise of powers by a Court or judicial authority. His Honour rejected this interpretation preferring the view that interference with a police investigation can amount to perverting or an attempt to pervert the course of justice.

The decision to hold a public hearing

The plaintiffs submitted that the decision to hold a public hearing had exceeded the power in s.31 of the Act and relied on the absence of evidence from the ICAC, submitting that the only conclusion available was that the jurisdictional facts had not been taken into account. The plaintiffs further submitted that the decision to proceed with a public hearing was irrational, illogical and not based on inferences of fact supported by logical grounds.

His Honour found that the jurisdictional fact for the purpose of s.31 of the Act is the ICAC's state of satisfaction and noted that the plaintiffs carried the onus of making out their challenge that ICAC's state of satisfaction did not or could not have existed. His Honour noted that there was no presumption that, because no reasons had been provided, that the ICAC had failed to take into account the public interest under s.31 of the Act. His Honour further found that in the circumstances of the matter, where the facts asserted in the allegations were such as to warrant further investigation, it could not plausibly be said that no rational or reasonable decision maker could reach the view that a public hearing should not be held.

An appeal has been filed and is to be heard on Tuesday 18 November. The ICAC will not proceed with the public hearings pending the outcome of the appeal.

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In the media

Crown prosecutor Margaret Cunneen loses bid to shut down ICAC inquiry
Crown prosecutor Margaret Cunneen has lost her legal bid to shut down an Independent Commission Against Corruption inquiry into allegations she attempted to pervert the course of justice but has delayed public hearings by launching an appeal. (10 November 2014) More...

Assisting victims of child sexual abuse
NSW Attorney General and Minister for Family and Community Services have announced a suite of measures to help support survivors of institutional child sexual abuse. The initiatives are the first step in responding to the Royal Commission into Institutional Responses to Child Sexual Abuse (03 November 2014) More...

Law Council forwards Draft Uniform Rules to Commissioner
The Law Council of Australia has forwarded to the Commissioner of the Uniform Legal Services Council, drafts of proposed Uniform Rules of Legal Practice, Professional Conduct and Continuing Professional Development approved by the Law Council, Law Institute of Victoria and Law Society of NSW (03 November 2014) More...

NSW Ministerial diaries published online
Ministerial diaries will be published online in a move set to promote greater transparency to Government in NSW. Premier Mike Baird said the publication of ministerial diaries (link is external) marks an important step in bringing greater transparency to government (31 October 2014) More...

Public inquiry into allegations concerning alleged corrupt conduct by a NSW senior public official
The NSW ICAC will hold a public inquiry commencing on Monday 10 November 2014 as part of an investigation it is conducting into allegations that on 31 May 2014 Deputy Senior Crown Prosecutor, Margaret Cunneen SC and Stephen Wyllie, with the intention to pervert the course of justice, (30 October 2014) More...

ICAC Investigation Cunneen and Wyllie
Following the announcement today that the ICAC will hold a public inquiry into allegations concerning the conduct of Margaret Cunneen SC and Stephen Wyllie, The Attorney-General has discussed with the Director of Public Prosecutions the issue of Ms Cunneen's involvement in continuing current or future prosecutions (29 October 2014) More...

ICAC: Operation Hale public inquiry
The ICAC today agreed in the Supreme Court of NSW not to proceed with its Operation Hale public inquiry until Tuesday, 11 November 2014, pending the outcome of the proceedings in the Supreme Court (07 November 2014) More...

ICAC finds former chancellor of the University of New England corrupt
The Commission has furnished its report into the conduct of the former chancellor of the University New England (Operation Verdi) (30 October 2014) More...

Genetic Health Guidelines released today to assist medical practitioners when deciding to use or disclose a patient's genetic information to a relative without consent
The NSW Privacy Commissioner has issued new NSW Genetic Health Guidelines. These amendments take effect on 1 November 2014 and address the use and disclosure of genetic health information to biological relatives (29 October 2014) More...

In practice and courts

New Rules - Federal Circuit Court Amendment (2014 Measures No. 1)
The Federal Circuit Court Amendment (2014 Measures No. 1) Rules 2014 No. 151 (Cth) amend the Federal Circuit Court Rules 2001 No. 195 (Cth) (the principal Act). The amending Rules make various amendments, including to: provide that the Court can make orders allowing the disclosure of family reports to appropriate bodies in the child protection system and to legal aid bodies;

NSW Parliament: reports due
Inquiry into a revised Memorandum of Understanding with the ICAC relating to the execution of search warrants on members' premises (report due) (Tue 11).

NCAT: New 'Getting help' fact sheet
The NSW Civil and Administrative Tribunal has developed a new fact sheet to assist people in contacting organisations for help with legal questions that might relate to a matter they wish to bring to NCAT (31 October 2014) Getting help fact sheet

ICAC: Prosecution briefs with the DPP and outcomes
Access information on prosecution briefs currently with the Director of Public Prosecutions, the outcomes of DPP advice and prosecutions in relation to ICAC investigations over the past five years (28 October 2014) More...

IPC NSW Genetic Health Guidelines: Use and disclosure of genetic information to a patient's genetic relatives: Guidelines for organisations in NSW
These amendments take effect on 1 November 2014 and address the use and disclosure of genetic health information to biological relatives. The guidelines cover the use and disclosure of a patient's genetic information to a genetic relative without their consent in certain, specific circumstances (29 October 2014) Access the NSW Genetic Health Guidelines here.


Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523
ADMINISTRATIVE LAW - judicial review - decisions of public officials of the Worker's Compensation Commission of New South Wales - decision of Approved Medical Specialist - decision of delegate of the Registrar of WCC - whether decisions infected by jurisdictional error - legal status of Workcover Guidelines - whether decision of approved medical specialist in accordance with guidelines - whether lawful for delegate to treat reconsideration and appeal as alternatives between which an injured worker must elect. More...

Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Dismiss the appeal. ENVIRONMENT AND PLANNING - use of building - temporary accommodation for backpackers - use of contempt proceedings to enforce prohibition on use the subject of consent orders STATUTORY INTERPRETATION - definition in statute - use of defined term to inform definition - whether such use permissible - whether definition to be construed separately from its operative provision

WORDS AND PHRASES - "backpackers accommodation" - "temporary accommodation" - Waverley Local Environmental Plan 1996 More...

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377
Allow the appeal from the judgment of the Land and Environment Court given on 11 September 2013 and set aside the order of the Court dismissing the application.

ADMINISTRATIVE LAW - delegation of statutory powers - implied delegation of power to form opinion - application of Carltona principle - question of statutory interpretation More...

Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368

ADMINISTRATIVE LAW - tribunals - courts and tribunals permitted to consider "spent convictions" - whether a tribunal exercising merits review is permitted to consider "spent convictions" where the original decision-maker is prohibited from doing so - Criminal Records Act 1991 (NSW), ss 12, 16

STATUTORY INTERPRETATION - inconsistent statutes of single legislature - Firearms Act 1996 (NSW), s 11 and Criminal Records Act 1991 (NSW), s 12 - whether the provisions can operate together harmoniously - whether there is an implied repeal of the earlier provision - purpose of the provisions - whether an implied repeal arises where the alleged inconsistency is between an interpretative provision and a substantive provision More...

Cunneen and Ors v Independent Commission Against Corruption [2014] NSWSC 1571 (10 November 2014)
ADMINISTRATIVE LAW - judicial review - decisions of Independent Commission Against Corruption to conduct an investigation and conduct a public hearing - application by Plaintiffs for Statement of Reasons pursuant to r 59.9 Uniform Civil Procedure Rules (UCPR) - refusal by ICAC to give reasons - interrelation of s 111 of the ICAC Act with r 59.9 UCPR whether ICAC's decision to conduct investigation beyond jurisdiction - interpretation of s 8(2) of ICAC Act - application of principle of legality - whether allegations in ICAC Summons capable of establishing corrupt conduct as defined by s 8(2) ICAC Act - whether ICAC's decision to conduct a public hearing invalid - challenge by Plaintiffs to whether ICAC was or could be satisfied that decision to hold a public hearing was in the public interest - relevant tests - challenges to ICAC decisions not made out - Summons dismissed. More...

Office of Local Government v Councillor Bagnall [2014] NSWCATOD 122
Finding that Mr Bagnall guilty of misconduct. Order that he be reprimanded.
Councillor-misconduct constituted by inappropriate communications regarding investigation.
Local Government Act 1993 More...

Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45

The appeals be dismissed. STATUTES – Rural Fires Act 1997 (NSW) s 63 – whether alleged breaches found by primary judge constituted contraventions of s 63 – whether obligation to take steps to "minimise the danger of the spread of a bush fire" applies to a fire that is burning at the time of the alleged omission. STATUTES – Rural Fires Act 1997 (NSW) s 128 conferred immunity upon "protected person" for a "matter or thing done or omitted to be done" by the person "if the matter or thing was done in good faith for the purpose of executing any provision" of the Act or any other Act – whether s 128 conferred immunity upon incident controllers in respect of alleged breaches of duty found by primary judge – whether incident controller "protected person" – whether breaches found by primary judge were acts or omissions under s 128 – whether good faith requirement in s 128 applies to omissions – meaning of "good faith" – whether acts or omissions in question were "for the purpose of executing any provision" of an Act.
Bush Fires Act 1949 (NSW) ss 22, 48; Civil Liability Act 2002 (NSW) ss 5B, 5C, 41, 42, 43, 43A, 46 More...



Regulations and other miscellaneous instruments

Child Protection (Offenders Registration) Amendment (Scheduled Agencies) Regulation 2014 (2014-706) — published LW 7 November 2014
The object of this Regulation is to remove the Office of the Children's Guardian from, and add the Office of the Public Guardian to, the scheduled agencies in Schedule 1 to the Child Protection (Offenders Registration) Act 2000. A scheduled agency is permitted to collect, use and disclose personal information about registrable persons under that Act despite other privacy protection legislation.

Supreme Court (Corporations) Amendment (No 12) Rules 2014 (2014-708) — published LW 7 November 2014
The object of these Rules is to amend the Supreme Court (Corporations) Rules 1999 to remove the requirement in rules 3.4, 5.6, 5.10, 5.11, 6.2 and 7.9 for notice of external administration events in relation to a body to be published once in a daily newspaper circulating generally in the State or Territory where the body has its principal, or last known, place of business. Instead, notice is to be effected by electronically lodging the notice with the Australian Securities and Investments Commission (ASIC) for publication on the ASIC Insolvency Notices website.

Uniform Civil Procedure Rules (Amendment No 69) 2014 (2014-709) — published LW 7 November 2014
The object of these Rules is to repeal requirements in the Uniform Civil Procedure Rules 2005 relating to notices of intended distribution under section 60 of the Trustee Act 1925 which are inconsistent with requirements relating to the same notices in the Supreme Court Rules 1970.

Introduced Government

Statute Law (Miscellaneous Provisions) Bill (No 2) 2014 – Introduced 05 October 2014
The objects of this Bill are to make minor amendments to various Acts and regulations, to amend certain other Acts and instruments for the purpose of effecting statute law revision and to repeal various Acts and provisions of an Act and regulation.

Bills Progress

Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014
Legislative Assembly 4/11/2014 Read a third time and sent to Legislative Council for concurrence.

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Christine Jones
Kim Nguyen
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