Australia: Government Bulletin - 25 February 2015

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

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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

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Christine Jones
Kim Nguyen
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