Australia: Government Bulletin - 25 February 2015

Last Updated: 1 March 2015
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

With the Cunneen matter due to be considered by the High Court next week, what better time than the present to take stock of the road so far and focus on the legal issues.

Whilst this matter has occupied much column space in the press, in no small part because of the circumstances of the alleged conduct and the identity of the applicant, it is, at its heart a statutory construction case, concerning s.8(2) of theICAC Act (the Act).

At first instance it had been argued that the two limbs of section 8(2) of the Act each needed to be satisfied and that the two tests could not overlap or be satisfied by the same conduct. The Supreme Court rejected this construction.

The Court of Appeal allowed the appeal on an argument not raised at trial or in written submissions on appeal. The majority, consisting of their Honours Justice Ward and Justice Basten, holding that 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. This text with context and purpose interpretation of s.8(2) appears to import some of the elements of s.8(1), namely in relation to "honest or impartial" exercise of official functions, which the drafters had not included in s.8(2).

In dissent, his Honour Chief Justice Bathurst held that conduct will have an adverse effect where it limits or prevents the proper performance of a public official's functions.

Therefore the issue for consideration by the High Court, is whether the power of the ICAC to investigate conduct that "adversely affects, or that could adversely affect" the exercise of official functions within the meaning of s.8(2) extends to conduct within the ordinary meaning of that phrase (Bathurst CJ) or:

  1. (a) should be constrained to conduct which "has the capacity to compromise the integrity of public administration", such that the conduct has the potential to "lead a public official into dishonest, partial or otherwise corrupt conduct" (Basten JA); and/or
  2. (b) conduct which has the potential to cause "'corruption' in the exercise by a public official of his or her functions, or which could have [an] adverse outcome when viewed from a public corruption perspective" (Ward JA).

The ICAC advances three main criticisms of the majority's approach which are summarised below.

Relationship between s.8(1)(a) and s.8(2)

  • various other sections of the Act indicate that they are alternatives
  • the use of 'also' in s.8(2) indicates that it creates an extra species not a sub-set
  • the text itself (by the omission of the words "honest or impartial") indicates that they are meant to add to the scope of s.8(1)(a)
  • to limit the section in the way suggested by the majority would leave s.8(2) superfluous as such conduct would fall within s.8(1)
  • nothing in the text of s.8 or ss.7, 9, 13 of the Act suggests an intent to confine the notion of "adversely affect", rather the language is broad.

Surplusage between the two limbs

  • the majority should not have extended the presumption against surplusage to require the first limb of s.8(2) to have additional work to do in all cases to which the provision could apply.

Section 2A and generic notions of corruption

  • the majority used generic notions of corruption as part of their constrained construction of s.8(2)
  • the ordinary meaning of corruption is inconsistent with this approach (e.g. to taint does not involve improper conduct by the official)
  • s.2A does not support the majority's approach as it contemplates corruption affecting (as an alternative to involving) public authorities
  • the approach involves broad considerations of purpose to read in requirements not found in the text
  • the approach offends the statutory and common law presumption that cognate words in legislation have corresponding meanings
  • the approach is inconsistent with High Court authority in Shin Kobe Maru that it would be circular to construe the words of the definition by reference to the term defined.

The High Court's approach to s.8(2), coupled with any legislative response, will define the future of corruption investigations in NSW. It may also have a bearing on the powers of any national corruption body should the political will be found for the creation of such a body.

As well as the ICAC deferring the completion of the Operation Spicer and Operation Credo reports, the ICAC's submissions reveal that the issue for consideration by the High Court has a bearing on three further unnamed investigations as well as corruption findings against 26 individuals in similar circumstances, that is where the conduct did not involve dishonesty or partiality on the part of officials. The issue is also said to be relevant to the pending Court of Appeal matter, Duncan v ICAC, which relates to Operation Jasper.

Government Lawyers half day conference follow up

If you are a lawyer employed in the public sector, unable to attend our event yesterday and would like a set of the materials, please contact us.

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

Super tribunal marks successful first year - NSW
NSW Attorney General Brad Hazzard has welcomed strong figures from the state's super tribunal showing that more than 70 per cent of matters in 2014 were resolved at, or prior, to the first hearing. The NSW Civil and Administrative Tribunal (NCAT), which was established on 1 January 2014 to consolidate the work of 22 former tribunals, has conducted more than 92,000 hearings (19 February 2015) More...

Justice system delivering for the community A new report released shows the majority of NSW residents are confident that the justice system is bringing criminals to account. The NSW justice system is improving community confidence by conducting public forums for the community and the media and passing laws to support the media broadcasting judgments and sentences in major criminal trials (12 February 2015) More...

NSW Local Court Most Efficient
The Department of Justice (DoJ) has announced that the Local Court has been found to be the most efficient court in Australia, according to a report (January 2015) released by the Productivity Commission (09 February 2015) DoJ's media release

In practice and courts

ICAC: Operation Misto witness list - updated 17 February 2015
Last updated on Tuesday 17 February 2015. Please note that witness lists are subject to change
Operation Misto witness list - updated 17 February 2015

ICAC current investigations

University IT management – allegations concerning former IT manager (Operation Misto)
Ausgrid – allegations concerning former engineer (Operation Jarah)M

NSW Transcript of Hearing No.5: the conduct and progress of "Operation Prospect" Transcript of the report of proceedings before the Committee on the Conduct and Progress of the Ombudsman's Inquiry "Operation Prospect was released on 11 February 2015. The Inquiry report is due on 25 February 2015 See Inquiry into The conduct and progress of "Operation Prospect" (report due) (Wed 25).

NSW Judicial Appointment
Mr Scotting will be sworn in as Dust Diseases Tribunal and District Court judge on 17 February 2015 and will replace Judge Michael Finnane (11 February 2015) Attorney General's media release

National draft contract standard available for comment
Standards Australia is seeking public comment on a draft of the new Australian Standard AS 11000, which combines general conditions of contract standards AS 2124 and AS 4000. The public comment period ends on 27 March 2015 click here. See the standard here DR AS 11000:2015

Published – articles, papers, reports

New Judicial Speeches

O pening of Law Term Address 'Reformulating Reform: Courts and The Public Good', a speech delivered by Chief Justice Thomas Bathurst on 4 February 2015 in Sydney (NSW Supreme Court)

Reducing adult reoffending
NSW Parliament Briefing Paper No 2/2015 by Lenny Roth
Repeat offenders are responsible for a large proportion of crime in NSW; and those returning to prison make up more than half of the prison population. The costs of reoffending to society and the criminal justice system are therefore clear (February 2015) Reducing adult reoffending

Public confidence in the New South Wales Criminal Justice System: 2014 update
NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 182
Two out of three NSW residents (64 per cent) are confident that the criminal justice system (CJS) brings people who commit crimes to justice. The overwhelming majority of those surveyed in 2014 also expressed confidence that the criminal justice system respects the rights of the accused (81%) and treats accused people fairly (81%) (February 2015) More...


Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10
JUDICIAL REVIEW – statutory notice requiring answers to questions – statutory power to give notice only to enable a council to exercise its functions under the Environmental Planning and Assessment Act 1979 ('EPA Act') – prosecution for an offence against the EPA Act already commenced against an accused person when notice given – whether statutory power authorised the notice – notice given to a potential witness to enable council to exercise its prosecutorial function in aid of the pending criminal proceedings – prosecutorial function not a function under the EPA Act – notice ultra vires statutory power as not given to enable exercise of function under EPA Act – notice not ultra vires merely because given after a prosecution commenced – notice to potential witness, and not the accused, does not necessarily interfere with administration of justice – whether issue of notice involves a contempt of court – no actual or real risk of interference with administration of justice – no improper advantage to council such as would be contempt of court – whether notice defective – notice not defective in not stating functions of council or that person suspected of having knowledge – notice not defective in identifying authorised person giving notice – notice is defective in not identifying matter in relation to which person required to answer questions – notice declared invalid More...

A J Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 17
ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW) – application for review of decision - questions remitted for determination – TAXES & DUTIES - gaming machine tax – whether persons directly interested in hotel business or profits of the business – whether appropriate to apportion liability
Applicants not liable under s 6(3)(b) of Gaming Machine Tax Act 2001 (NSW). Decisions under review revoked More...



Regulations and other miscellaneous instruments

Child Protection (Offenders Registration) Amendment (Personal Information) Regulation 2015 (2015-59) — published LW 13 February 2015

Crimes (Administration of Sentences) Amendment (Classification and Placement) Regulation 2015 (2015-68) — published LW 13 February 2015

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Christine Jones
Kim Nguyen
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.