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.
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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...
Cases
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...
Legislation
NSW
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.
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