On 5 December 2014, the New South Wales Court of Appeal delivered judgment in Cunneen v ICAC  NSWCA 421 following an unsuccessful application for declaratory and injunctive relief in the Court below ( read more in a previous edition).
Regular readers of Government Bulletin will recall that the ICAC is investigating 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, counselled Sophia Tilley to pretend to have chest pains, and that Sophia Tilley, with the intention to pervert the course of justice, did pretend to have chest pains, to prevent investigating police officers from obtaining evidence of Ms Tilley's blood alcohol level at the scene of a motor vehicle accident.
An issue in the Court below was the interpretation of s.8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
The majority of the Court of Appeal allowed Ms Cunneen's appeal, holding:
- The meaning of "adversely affects" in s 8(2) only extends to conduct that has the capacity to compromise the integrity of public administration. Unlawful conduct that falls within the second limb of s 8(2) is not "corrupt conduct" unless it could lead a public official to exercise his or her functions dishonestly, partially or otherwise improperly.
- The alleged conduct could amount to an attempt to pervert the course of justice but it was not "corrupt conduct" within the meaning of s 8(2) as it could not be said a police officer (or other public official) might be led to exercise his or her powers improperly.
The majority, employing the textual approach to statutory construction favoured by the High Court of Australia, found that conduct is not corrupt conduct unless it satisfies both criteria under s.8(2), that is, in relation to the first criterion, that it has at least the potential adversely to affect the exercise of official functions in the sense of corrupting the exercise of those functions having regard to the concept of corruption on which the ICAC Act focuses.
Examining the meaning "adversely to affect", the majority found that it is required for there to be an adverse effect on the exercise of the relevant official functions, where the word adversely should be construed having regard to the scope and purpose of the ICAC Act such that:
Conduct which could have a potential effect on the exercise of official functions in the sense that it might cause a different decision to be made or the functions to be exercised in a different manner but which does not have the potential to cause any "corruption" in the exercise by the public official of his or her functions, or which could have no adverse outcome when viewed from a public corruption perspective, is not conduct that could "adversely" affect the proper exercise of official functions in the relevant sense.
Applying this and assuming the facts alleged, it could not be said that the police officer acted otherwise than honestly and impartially in taking steps in accordance with his or her understanding of the circumstances. There was no suggested breach of public trust, in the sense of a statutory power being used for an extraneous purpose, nor any allegation of the misuse of information acquired in carrying out an official function.
The ICAC is seeking special leave to appeal to the High Court of Australia. The ICAC has announced that the majority decision in Cunneen v ICAC fundamentally alters the basis of its powers with respect to significant parts of Operations Credo and Spicer and, pending the outcome of the special leave application, it will not complete its reports in respect of those investigations.
Save the Date | 24 February 2015 | Government Lawyers half day conference
Holding Redlich and ACLA invite you to attend an intensive half day conference for public sector lawyers.
We will be giving workshops and seminars as follows:
- Planning and environment law update: where to from here?
- Statements of reasons for decisions and UCPR 59.9
- The new Privacy Government Framework, what does it mean for your agency?
- Recent judicial consideration regarding the ICAC: powers and findings
- Property law update, including the new contract for sale of land
- Drafting and negotiating contracts to manage legal and agency risk
- ACMA v Today FM – administrative bodies and the determination of the commission of an
- offence though the prism of the royal prank call case
- Coronials – tips and traps and lessons learned – panel discussion
Lunch and refreshments will be provided. We hope to see you at our seminar event.
WHEN: Tuesday, 24 February 2015 | 9.00am - 2.00pm (a formal invitation will be sent in the new year)
VENUE: NSW Trade & Investment, Level 47, MLC Centre, 19 Martin Place, Sydney
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
Appointment of the Honourable Geoffrey Nettle to the
High Court of Australia
The Honourable Geoffrey Arthur Akeroyd Nettle QC, a member of the Court of Appeal of the Supreme Court of Victoria, has been announced as the next Justice of the High Court of Australia (04 December 2014) 4 December 2014—Appointment of the Honourable Geoffrey Nettle to the High Court of Australia and Attorney-General's media release (04 December 2014)
Access to Justice Arrangements: Productivity Commission
Inquiry Report (Overview)
The Productivity Commission has released a report into Australia's system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law (03 December 2014) More...
Youth crime rates drop
Attorney General Brad Hazzard and Minister for Police and Emergency Services Stuart Ayres has welcomed a new report that shows a major decline in youth crime rates over the last decade. The Government funds a range of innovative programs and initiatives aimed at preventing and reducing crime (02 December 2014) More...
A United regulatory system for legal
The Legal Services Council is encouraging stakeholders to have their say on draft Operating rules for Australia's first united regulatory system for legal practitioners. The Legal Profession Uniform Law is due to start in mid-2015 and will initially provide a single regulatory framework for NSW and Victorian legal practitioners (28 November 2014) More...
Public service performance management is not bullying,
The Fair Work Commission has refused to grant a "stop the bullying order" to a senior Australian Bureau of Statistics public servant who alleged his boss was using the bureau's performance management system to bully and force him out of his job (25 November 2014) More...
No evidence licensed venues are under-reporting
Attorney General Brad Hazzard has welcomed a new report that shows the NSW Government's tougher stance against alcohol-related harm isn't deterring licensed venues from reporting violence (25 November 2014) More...
In practice and courts
Productivity Commission: Report on Access to
The Inquiry Report No. 72 - Access to Justice Arrangements (5 September 2014) includes:
Volume 1, accessibility of the justice system, alternative
forms of dispute resolution, the regulation of the legal profession
and the structure and operations of ombudsmen, tribunals and
Volume 2, discusses private funding of litigation; and the provision of legal aid
See the Productivity Commission overview (5 September 2014) of the report.
Legal Profession Uniform Law Consultation
The Legal Services Council has today issued a media release encouraging stakeholders to have their say on draft operating rules for Australia's first united regulatory system for legal practitioners. For more information on how to comment on the rules visit the Legal Services Council website at www.legalservicescouncil.org.au (28 November 2014)
Australasia's two largest membership organisations for ADR practitioners, LEADR and the Institute of Arbitrators and Mediators Australia (IAMA) made the historic decision to become a single entity. The members of both organisations voted overwhelmingly to proceed to a single, integrated body on 1 January 2015. See details here.
ICAC: Operation Hale public inquiry
Today's majority decision of the NSW Court of Appeal with respect to the ICAC's Operation Hale public inquiry fundamentally affects the scope of the Commission's powers to conduct investigations into corrupt conduct (05 December 2014) Operation Hale public inquiry
ICAC: Statement regarding Operations Credo and
The majority decision in Cunneen v ICAC  NSWCA 421 fundamentally alters the basis of the Commission's powers with respect to significant parts of Operations Credo and Spicer (05 December 2014) Statement regarding Operations Credo and Spicer
NSW Supreme Court Annual Review 2013
The Supreme Court has published the Annual Review 2013 (undated) on 2 December 2014, which summarises the activities of the [Supreme Court] which it carries out in its function as the superior court in [NSW] and its primary task of resolving disputes between parties
Published – articles, papers, reports
Corrective Services, Australia, September Quarter 2014
Contains national information on persons in adult custody and community-based corrections in Australia. Quarterly information is presented for each state and territory. Information available includes: sex; age; imprisonment rates; legal status (sentenced, unsentenced); type of custody (secure, open); sentenced receptions; federal prisoners and type of community-based corrective services orders (04 December 2014) Corrective Services, Australia
Young but not so restless: trends in the age-specific
rate of offending
Don Weatherburn, Karen Freeman, Jessie Holmes: NSW Bureau of Crime Statistics and ResearchDescribes and discusses trends in age-specific rates of offending for property crime, robbery and serious assault (02 December 2014) Young but not so restless: trends in the age-specific rate of offending
Youth detention population in Australia
Australian Institute of Health and Welfare
Presents information on the youth detention population in Australia, focusing on quarterly trends from June 2010 to June 2014 (28 November 2014) Youth detention population in Australia 2014
Counting the costs of crime in Australia: a 2011
Russell G. Smith, Penny Jorna, Josh Sweeney, Georgina Fuller; AIC
This report seeks to estimate how much crime costs the Australian economy by calculating the number of crimes that come to the attention of the authorities and, using crime victimisation survey data, the number of crimes that are not recorded officially (26 November 2014) Counting the costs of crime in Australia: a 2011 estimate
Cunneen v Independent Commission Against Corruption  NSWCA 421 ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - power to investigate "corrupt conduct" - whether allegations capable of falling within the meaning of "corrupt conduct" - whether conduct could "adversely affect" exercise of official functions by any public official - whether status of the applicant is an irrelevant consideration - whether conduct could pervert (or be an attempt to pervert) the course of justice - power to conduct "public inquiry" - whether legally unreasonable to conduct "public inquiry" - Independent Commission Against Corruption 1988 (NSW), ss 7, 8, 13, 31 More...
Ivan Petch v Independent Commission Against Corruption
 NSWSC 1693
Judgment for the first defendant (ICAC); ADMINISTRATIVE LAW - challenge to findings of ICAC - "insufficiency of evidence" - illogicality and irrationality - satisfaction of decision maker required, not objective existence of circumstances - summons dismissed More...
Ritson v Secretary of Department of Justice and anor
 NSWSC 1651
ADMINISTRATIVE LAW - judicial review - plaintiff a former police officer charged with an offence - matter dismissed - where plaintiff made application for ex-gratia payment in respect of a portion of legal costs incurred in successful defence of charge - where application declined - whether plaintiff denied procedural fairness in determination of application ADMINISTRATIVE LAW - allegation of bias - person against whom allegation made not the decision maker - necessity for connection between the alleged bias and the making of the decision PRACTICE AND PROCEDURE - application for judicial review - where proceedings commenced outside of prescribed limitation period - plaintiff unrepresented - all evidence documentary - no prejudice to the defendants - whether extension of time ought be granted More...
Hunter Quarries Pty Ltd v State of New South Wales
(Department of Trade & Investment)  NSWSC
ADMINISTRATIVE LAW - declaratory relief - proper construction of the Work Health and Safety Act 2011 (NSW) - order sought restraining inspectors appointed under the Mine Health and Safety Act 2004 (NSW) and/or Work Health and Safety (Mines) Act 2013 (NSW) from obtaining information by exercise of powers granted under s 171 of the Work Health and Safety Act - competing constructions of the Work Health and Safety Act - how s 155 and s 171 of the Work Health and Safety Act must be constructed - relevant rules of statutory construction - relief sought not granted - summons dismissed More...
Ghanem v State Parole Authority of New South Wales
 NSWSC 1666
ADMINISTRATIVE LAW - judicial review - decision of State Parole Authority to refuse parole - serious offender - lengthy period of time in custody from young age - no "absence of evidence" for conclusion that external leave programs necessary for release - assessments by Community Corrections and Serious Offenders Review Council that there was a need to determine ability to adapt to normal lawful community life - no inflexible application of Operating Guidelines or failure to have regard to personal circumstances - no failure to take into account mandatory considerations - fact that plaintiff had spent a lot of adult years in custody was not irrelevant More...
People with Disabilities Australia Incorporated v
Minister for Disability Services  NSWSC 1669
PROCEDURE - application for summary dismissal of application for judicial review - ADMINISTRATIVE LAW - judicial review - mandamus - where mandamus sought against minister for disability services to perform his duty under the Disability Services Act 1993 according to law - whether funding of certain style of housing for people suffering with disability not done in conformity with the objects of the act - whether "decision" amenable to judicial review - whether justiciable issue - whether attempt to engage court in merits review of ministerial policy decisions More...
Australia Skydive Pty Ltd v Wyong Shire Council 
JUDICIAL REVIEW - motion to extend time to commence judicial review proceedings - Uniform Civil Procedure Rules 2005 Pt 59, r 59.10 - Council resolution to increase differential airport charges for adventure sports aircraft - explanation for delay in commencing proceedings - 19 days outside limitation period - non-litigious steps initially pursued - arguable grounds for challenge - time extended; Local Government Act 1993 (NSW) More...
Office of Finance and Services v APV and APW 
PRIVACY - Privacy and Personal Information Protection Act 1998 - definition of personal information - information or opinion must be about an individual "whose identity is apparent or can reasonably be ascertained from the information or opinion" - whether other documents can be consulted to identify an individual
JURISDCITION - Privacy and Personal Information Protection Act 1998 - whether certain conduct was "the subject of" the application for internal review to the agency and therefore conduct that the Tribunal can review More...
Secretary of the Treasury (Department of Justice -
Corrective Services NSW) v Public Service Association and
Professional Officers' Association Amalgamated Union of NSW on
behalf of Richard Woelfl (No 5)  NSWIRComm 51
APPEAL - Application for leave to appeal and appeal from decision at first instance by respondent employer - Cross appeal by Public Service Association (PSA) on behalf of officer - Appeal upheld - Orders at first instance set aside - Cross appeal -dismissed - JUDICIAL REVIEW - PSA sought judicial review of Full Bench decision and orders - Court of Appeal found Full Bench erred in that it failed to identify the element of misconduct it regarded as "serious", assess its seriousness and weigh that against the consequences for the applicant of the proposed dismissal - Court of Appeal remitted the appeal and cross-appeal to the Full Bench of the Commission to be determined according to law - REMITTER - Held that dismissal would not be harsh, unreasonable or unjust More...
Eurobodalla Fluoride Issues Inc v Eurobodalla Shire
Council  NSWLEC 182
ADMINISTRATIVE LAW - judicial review proceedings - whether the Council's decision to install and operate a fluoride dosing facility was valid - whether the Council's failure to obtain and consider an environmental impact statement amounted to a breach of s 112 of the Environmental Planning and Assessment Act 1979 - whether fluoridation of water supply likely to significantly affect the environment in terms of risks to human health - whether installation of the fluoride dosing facility involved the construction or extension of a "water treatment works" - whether approval of the Minister for Land and Water Conservation was required by s 60 of the Local Government Act 1993 More...
Proclamations commencing Acts
Disability Inclusion Act 2014 No 41 (2014-745) —
published LW 28 November 2014
This Proclamation appoints 3 December 2014 as the day on which that Act commences.
Liquor Legislation Amendment (Statutory Review) Act 2014
(2014-746) — published LW 28 November 2014
This Act appoints 1 December 2014, 15 December 2014 and 1 March 2015 as the date on which different parts of the Liquor Legislation Amendment (Statutory Review) Act 2014 commence.
Regulations and other miscellaneous instruments
Disability Inclusion Regulation 2014 (2014-751) —
published LW 28 November 2014
The object of this Regulation is to amongst other things prescribe the disability service standards that must be complied with by the Secretary and certain eligible entities when providing support and services to persons in the target group under Part 5 of the Act and allowing for provisions relating to criminal records checks (including by use of statutory declarations) for the purposes of sections 32 and 36 of the Act.
Lobbying of Government Officials Amendment (Lobbyists Code of
Conduct) Regulation 2014 (2014-771) — published LW 5
The object of this Regulation is to amend the Lobbying of Government Officials (Lobbyists Code of Conduct) Regulation 2014 to enable contraventions of the pre-existing NSW Government Lobbyists Code of Conduct to be grounds for cancellation or suspension of registration under the Lobbyists Register established under the Lobbying of Government Officials Act 2011.
Supreme Court Rules (Amendment No 427) 2014 (2014-772) —
published LW 5 December 2014
The object of these Rules is to amend Part 75 (Criminal proceedings) of the Supreme Court Rules 1970 to make provision for the entering of judgments and orders of the Supreme Court.
Uniform Civil Procedure Rules (Amendment No 70) 2014 (2014-773)
— published LW 5 December 2014
The object of these Rules is to apply the procedure for court appointed referrals for legal assistance to the Industrial Relations Commission (including the Industrial Court).
The following NSW Bills received Royal Assent on 28
Crime Commission Legislation Amendment Bill 2014 - Act No 82 of 2014
Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 - Act No 83 of 2014
Ombudsman and Public Interest Disclosures Legislation Amendment Bill 2014 - Act No 86 of 2014
Statute Law (Miscellaneous Provisions) Bill (No 2) 2014 - Act No 88 of 2014
NSW Acts can be viewed at: https://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/V3BillsListAssented
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.