Australia: NSW Government Bulletin - 17 June 2015

Last Updated: 25 June 2015
Article by Harold Werksman, Sylvia Fernandez and Greg Wrobel

Most Read Contributor in Australia, September 2017

On 10 and 11 June 2015, the High Court of Australia heard an application by Jeff McCloy (and others) against the State of New South Wales and the Independent Commission Against Corruption (ICAC) in relation to the validity of various provisions of the Election Funding Expenditure and Disclosure Act 1981 (NSW) (EFED Act), which prohibit the making of political donations by certain persons including property developers. Mr McCloy was investigated by the ICAC in relation to political donations made before the New South Wales March 2011 election.

The proceedings brought by the plaintiffs challenge the legislation on the basis that at least some of the relevant provisions impermissibly infringe the freedom of communication on political or governmental matters implied in the Commonwealth Constitution.

The plaintiffs also argued that there was no rational connection between the provisions of the EFED Act and a legitimate end, as it did no more than impose a blanket prohibition on the making of donations by particular classes of individuals.

The State of New South Wales submitted the provisions in the EFED Act do not directly restrict political communication. For example, the EFED Act does not constrain a prohibited donor from voicing support for, or publicly associating/disassociating themselves from a party or candidate. The State of New South Wales also argued that the legislation was for a legitimate purpose and was warranted where there has been a history of property developers having influence on State and local governments.

The interveners were the Attorney-Generals for the Commonwealth and States of South Australia, Western Australia, Queensland and Victoria. One of the Commonwealth's key points was, the objects of avoiding the appearance of corruption, or to promote confidence in the system was not less important and not less compatible with the implied freedom of political communication. This is because, if confidence in the system is lost, individuals will think that they will simply not be heard and feel that they have no influence on political debate; inhibiting the implied freedom of political communication.

The Court has reserved its decision, with a decision expected in three to six months.

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

Jeff McCloy challenges NSW law banning political donations from developers in High Court
Former lord mayor of Newcastle and developer Jeff McCloy has taken his fight against a ban on political donations from developers in New South Wales to the High Court of Australia (11 June 2015) More...

NSW moves to merge councils labelled a "mockery of fair process"
Local Government NSW has blasted the state government and the Independent Pricing and Regulatory Tribunal (IPART) for releasing critical information late and rushing councils to complete submissions that will determine their very existence (09 June 2015) More...

Double jeopardy laws to be reviewed as part of NSW Government's inquiry into Bowraville murders
New South Wales' double jeopardy laws will be reviewed as part of the State Government's response to a parliamentary inquiry into the Bowraville murders (03 June 2015) More...

ICAC finds former Ausgrid engineer Phillip Cresnar made $252,000 from corrupt kickbacks
A former Ausgrid engineer corruptly solicited more than $250,000 in kickbacks from contractors, the New South Wales corruption watchdog has found (03 June 2015) More... See ICAC statement ICAC finds former Ausgrid engineer and contractors corrupt

NSW Recorded Crime Statistics quarterly update March 2015 released
In the two years to March 2015, only one major offence showed a significant upward trend, seven were trending downward and the remaining nine major offences were stable (02 June 2015) More...

In practice and courts

ICAC: Public inquiry into corruption allegations concerning Department of Justice courthouse refurbishment contracts
The ICAC will hold a public inquiry starting on 22 June 2015 as part of an investigation it is conducting into corruption allegations concerning the abuse of procurement processes by a Department of Justice Asset Management Branch senior officer in awarding contracts to refurbish NSW courthouses in 2013 (Operation Yancey) (10 June 2015) Public inquiry into corruption allegations concerning Department of Justice courthouse refurbishment contracts

ICAC: Public inquiry into corruption allegations concerning NSW Rural Fire Service catering supply
Operation Vika public inquiry into allegations concerning corrupt payments related to the supply of catering and other products to the NSW Rural Fire Service (RFS) will now start 2 June 2015 Public inquiry into corruption allegations concerning NSW Rural Fire Service catering supply and other matters to start 2 June

NSW Inquiries receiving submissions
Inquiry into Progress of the Ombudsman's investigation 'Operation Prospect', closes 15 June.
Inquiry into Companion Animal Breeding Practices in New South Wales, closes 15 June.
Inquiry into Local government in NSW, closes 5 July.

Upcoming hearings

Progress of the Ombudsman's investigation 'Operation Prospect', #1 (Fri 19).
Progress of the Ombudsman's investigation 'Operation Prospect', #2 (Fri 26).

NSW Appointments

10 June 2015 - NSW appoints first female Crown Solicitor [PDF, 104kb]
9 June 2015 - Appointment of NSW Ombudsman
03 June 2015 - New judges appointed [PDF, 162kb]

Published – articles, papers, reports

ICAC Corruption Matters
The June edition is out now. Read the latest news from the NSW ICAC (10 June 2015) Corruption Matters June edition out now

NSW recorded crime statistics: quarterly update March 2015
NSW Bureau of Crime Statistics and Research; 2 June 2015
In the 60 months to March 2015, domestic violence, indecent assault, sexual assult, theft from dwelling and fraud increased in New South Wales, while other types of major offences decreased or remained stable. More...


Trives v Hornsby Shire Council [2015] NSWCA 158
ADMINISTRATIVE LAW – judicial review – grounds – jurisdictional fact – whether fact extrinsic to the power conferred on the decision-maker or part of the function conferred – whether validity of certificate depends on certifier's satisfaction that proposed development is a "complying development" – relevance of inconvenience and uncertainty as factors APPEAL – interlocutory decision – determination of separate question – whether complying development certificates issued by accredited certifier invalid – whether characterisation of development as "complying development" a jurisdictional fact – issue clearly arguable – case of public importance – whether leave should be granted CONSTITUTIONAL LAW – privative clause – State legislation limiting time for review of decision – whether limitation effective – whether limitation removes defining characteristic of Supreme Court – Environmental Planning and Assessment Act 1979 (NSW), s 101 – Kirk v Industrial Court of New South Wales [2010] HCA 1; 228 CLR 651 referred to ENVIRONMENT AND PLANNING – development control – complying development – certificate issued by accredited certifier – Council challenged validity of certificate – Council alleged development not "complying development" under relevant planning instruments – Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 85A – Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 distinguished STATUTORY INTERPRETATION – whether characterisation of proposed development as "complying development" is a jurisdictional fact – whether "complying development" a generic label or an operative precondition to exercise of power – whether reasoning by analogy from development consent procedure permissible WORDS AND PHRASES – "complying development" – Environmental Planning and Assessment Act 1979 (NSW), s 76A – "jurisdictional fact" More...

Ryan v The Minister for Planning [2015] NSWLEC 88
JUDICIAL REVIEW – challenge to making of a local environmental plan – whether the LEP as made is "significantly" different from the publicly exhibited proposal – invalidity – the LEP must remain "a product" of the LEP making process under the Environmental Planning and Assessment Act 1979 – the impugned LEP differed in material respects to the exhibited proposal and was therefore not a "product of the process" – LEP invalid More...



Bills introduced Government – 06 June 2015

Child Protection Legislation Amendment Bill 2015

Crimes (Sentencing Procedure) Amendment (Firearms Offences) Bill 2015

Non-Government – 06 June 2015

Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015

Bills passed by both Houses of Parliament - 06 June 2015

Legal Profession Uniform Law Application Legislation Amendment Bill 2015

Child Protection Legislation Amendment Bill

Legislative Assembly 3/6/2015 Introduced and read a first time; Moved second reading, debate adjourned. This Bill is for an Act to amend the Adoption Act 2000, the Child Protection (Working with Children) Act 2012, the Children and Young Persons (Care and Protection) Act 1998 and other Acts

Regulations and other miscellaneous instruments
Public Authorities (Financial Arrangements) Amendment (Sydney Motorway Corporation Pty Ltd) Regulation 2015 (2015-275) — published LW 3 June 2015 Commencement: 3/6/2015 (Whole The object of this Regulation is to authorise the Treasurer to make certain investments in Sydney Motorway Corporation Pty Ltd (ACN 601 507 591) and any of its subsidiaries.

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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