Australia: NSW Government Bulletin - 12 August 2015

The High Court has reserved its decision on whether to strike down legislative amendments which solidify the powers of the NSW corruption watchdog.

On 5 August 2015, proceedings were heard in the High Court brought by Mr Travers Duncan challenging the newly inserted Part 13 in Schedule 4 of the Independent Commission against Corruption Act 1988  (NSW) (the ICAC Act), which purported to validate the ICAC's decisions regarding corrupt conduct. 

The laws were introduced by the NSW Government following the High Court's decision earlier this year in ICAC v Cunneen  [2015] HCA 14 (read more here).  

InCunneen, it was held that the ICAC had been misinterpreting "corrupt conduct" in the ICAC Act to include conduct that adversely affects not only the probity but also the efficacy  of the exercise of official functions. 

Mr Duncan initiated proceedings on the premise that the Cunneen  decision potentially invalidated many of the ICAC's investigations, including one involving Mr Duncan, former Minister Ian Macdonald, Obeid family members and others.

In order to be successful, Mr Duncan will need to overturn a line of cases that recognises the practical utility of remedial legislation.

It was also submitted on Mr Duncan's behalf that the actions of the NSW government in introducing these retrospective laws were unconstitutional as they oust the power of the Supreme Court over the ICAC's actions, which means that the NSW Parliament is effectively directing an independent court: "attributing consequences of valid validity to an invalid act, yet accepting that the act is invalid."

In response the ICAC argued the new law does not direct the courts; it simply changes the law to be applied by the courts.

In considering this argument, both Gageler J and Kiefel J were quick to note that "In its terms it is not directed to the court at all. It is directed to and intends to operate upon the findings."

The Court reserved its decision. Read the transcript here.

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

NSW parliament considers three-strikes public housing rule

New laws would make it easier for antisocial tenants who commit serious crimes to be booted out of public housing. The proposed One Strike policy for a serious breach of a tenancy agreement meant the NCAT must terminate a tenancy where it is proven, on balance of probabilities, that a tenant committed a serious criminal offence (08 August 2015) More...

Man to face drink-drive charge after High Court rules on bungled second test

Doctors are not legally obliged to take blood samples effectively in drink-drive cases, the High Court found. The High Court this week ruled that allowing the police breath test results to be used as evidence in the trial would not result in an "unacceptable risk of miscarriage of justice" (07 August 2015) More...

Liverpool Plains coal mine: Shenhua directors investigated for corruption in China

A number of directors of the Chinese company granted approval for a coal mine on New South Wales' Liverpool Plains have been investigated for corruption in China (07 August 2015) More...

Privacy vs Convenience: The NSW e-ticketing tussle

The state's Privacy Commissioner, Dr Elizabeth Coombs, isn't so sure that the imminent elimination of almost all paper tickets is a good thing for those in the community who want to remain anonymous in this age of big data without having to pay a premium (06 August 2015) More...

High Court hears appeal of miner Travers Duncan over ICAC ruling

The High Court reserves its decision on whether to strike out new New South Wales laws which shore up the powers of the NSW corruption watchdog (06 August 2015) More...

New specialist judges appointed to support victims of child sexual assault

The appointment of two specialist judges will make access to justice faster and easier for victims of child sexual assault, Attorney General Gabrielle Upton today announced. Specialist District Court Judges will hear child sexual assault matters across NSW (05 August 2015) More...

New Protocol for Guns in Court: NSW

Police will be able to wear their guns in court, under a new protocol announced by Deputy Premier and Minister for Justice and Police. The new protocol outlines the circumstances in which police will be allowed to carry their guns as a standing arrangement, while not abrogating the right of judicial officers to control their court rooms (04 August 2015) More...

Judges and lawyers raise concerns about NSW Police carrying guns in court

Judges and lawyers have expressed  alarm about a plan to allow NSW police to take their guns into courthouses, fearing it could undermine rather than bolster court security (09 August 2015) More...

Moves to deal with councillor misconduct in NSW

Minister for Local Government Paul Toole today announced planned changes to the New South Wales Local Government Act to strengthen and improve the way councillor misconduct is handled. The changes, to be introduced to NSW Parliament later this month, will more effectively deal with councillor misconduct, poor performance and council maladministration (03 August 2015) More...

Delivering for victims of crime in NSW

The victims of crime who were in the transition between the old Victims Compensation Scheme and the new Victims Support Scheme can have their claims reassessed from 1 September 2015. All eligible victims of crime will receive written notification from the Department of Justice outlining the application process (02 August 2015) More...

Countering extremism in public schools

NSW Premier Mike Baird today announced a state-wide audit of prayer groups in public schools, in response to concerns about a small number of students being potentially exposed to violent extremist ideologies (29 August 2015) More...

Former Mayor of Ryde and others prosecuted following ICAC investigation

Former City of Ryde Mayor Ivan Petch is being prosecuted for offences including misconduct in public office, blackmail, and giving false or misleading evidence to the NSW ICAC. Operation Cavill concerned alleged attempts to improperly influence the exercise of official functions of the council's general manager and acting general manager, and the release of confidential council information (29 July 2015) More...

In practice and courts

ICAC: Prosecution outcomes and briefs with the DPP

Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 30 July 2015 More...

ICAC: Public inquiry into corruption allegations involving $1.7 million

The ICAC will hold a public inquiry starting on 17 August 2015 as part of an investigation it is conducting into allegations that a TAFE ICT manager dishonestly obtained over $1.7 million from the Department of Education and Communities TAFE South West Sydney Institute (27 July 2015) More...

NSW Law Society Submission on Tribunal Independence and Appointments
The Law Society of NSW (LSNSW) has made available its submission (22 July 2015) to the Administrative Appeals Tribunal in relation to the Council of Australasian Tribunals' (COAT) More... (May 2015).

NCAT appointments

Appointment of NCAT Principal Registrar – 04 August 2015

IPCNSW CEO Update

IPC CEO Elizabeth Tydd has published CEO Update on operations of the IPC for 2014/15 on the 24 July 2015 More...

NSW Parliament

Inquiries receiving submissions

Inquiry into the Regulation of Brothels, closes 19 August.

Inquiry into the 2015 NSW state election, closes 24 August.

Inquiry into Remedies for the serious invasion of privacy in New South Wales, closes 4 September.

Inquiry into Reparations for the Stolen Generations in New South Wales, closes 27 September.

Reports

Legislation Review Digest No 2 of 2015 (Tue 04)

Inquiry into Companion Animal Breeding Practices in New South Wales (report due) (Mon 31)

Government responses due

Ministerial Propriety in New South Wales (response due) (Mon 24)

The conduct and progress of "Operation Prospect" (response due) (Tue 25)

Published – articles, papers, reports

NSW Custody Statistics June 2015

Bureau of Crime Statistics and Research statistics released on 29 July 2015

NSW Custody Statistics June 2015

OAIC Publications

OAICicon — 5 August 2015

Read more: OAICicon — 5 August 2015

OAICnet — 5 August 2015

Read more: OAICnet — 5 August 2015

Cases

Admissibility of Evidence and "General Unfairness Discretions" in Police v Dunstall [2015] HCA 26

The High Court has unanimously allowed an appeal from South Australian Supreme Court in Police v Dunstall  [2015] HCA 26.  The case considered the discretionary powers of courts to exclude evidence where the admission of the evidence would render the trial unfair (06 August 2015) More...

Spencer v Commonwealth of Australia [2015] FCA 754

CONSTITUTIONAL LAW – s 51(xxxi) conditions financial assistance power under s 96 Constitution – Natural Resources Management (Financial Assistance) Act 1992 (Cth) and Natural Heritage Trust of Australia Act 1997 (Cth) characterised as laws supported by s 96 – s 96 agreements between Commonwealth and State pursuant to those laws – no contravention of s 51(xxxi) – consideration of practical operation and effect of federal laws, intergovernmental agreements and state legislation

CONSTITUTIONAL LAW – s 51(xxxi) Constitution – whether state laws restricting native vegetation clearance effected acquisition of bundle of rights in farming property – state laws effected "taking" of bundle of rights – no acquisition where proprietary rights sterilised by regulatory control without acquisition of a benefit or advantage of a proprietary nature – relevance of history of regulatory control – no contravention of s 51(xxxi)

TORTS – whether any action on the case for legislative and executive conduct alleged intentionally to inflict harm– no correspondence with Northern Territory v Mengel or James v Commonwealth – no cause of action established – no unlawful conduct – no intention to inflict harm – failure to prove any damage caused by impugned conduct More...

Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 159

EQUAL OPPORTUNITY — sex discrimination — direct discrimination — "on the grounds of sex"   PRACTICE AND PROCEDURE — whether Tribunal obliged to consider new evidence provided after hearing — no invitation by Tribunal to provide or make submissions about new evidence More...

SHCAG Pty Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122

JUDICIAL REVIEW – challenge to assessment under Environmental Planning and Assessment Act 1979 of exploration licence enabling drilling of boreholes on private land under the Mining Act 1992 – statutory regime for gaining access to private land for exploration under the Mining Act – whether Minister complied with duty to examine and take into account environmental impacts as required by s 111 of Environmental Planning and Assessment Act – whether activity likely to significantly affect impact on the environment pursuant to s 112 of the Environmental Planning and Assessment Act More...

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218

ADMINISTRATIVE LAW – supervisory jurisdiction – judicial review of District Court – appeal to District Court from Local Court – whether District Court judge misapprehended the extent of appellate jurisdiction – whether constructive failure to exercise jurisdiction – Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20 – Supreme Court Act 1970 (NSW), s 69   APPEAL – criminal – appeal by way of rehearing – appeal from criminal conviction by Local Court – finding of guilt based on accepting evidence of victims of sexual offences – no fresh evidence tendered on appeal – availability of review of magistrate's credibility findings – "natural limitations" of proceedings wholly or substantially on the record   APPEAL – conviction appeal from Local Court to District Court – powers of District Court under Crimes (Appeal and Review) Act 2001 (NSW), s 20 – whether finding of error by the magistrate necessary – whether District Court may remit to Local Court – Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 discussed   WORDS AND PHRASES – "appeal by way of rehearing" – Crimes (Appeal and Review) Act 2001 (NSW), s 18 More...

Legislation

NSW

Bills introduced Government

Residential Tenancies and Housing Legislation Amendment (Public Housing—Antisocial Behaviour) Bill 2015

Workers Compensation Amendment Bill 2015

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

Bill debated, passed Legislative Assembly 05 August 2015

Regulations and other miscellaneous instruments

Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2015 (2015-421) — published LW 31 July 2015

Crimes (Administration of Sentences) Further Amendment (Smoke-free Prisons) Regulation 2015 (2015-423) — published LW 31 July 2015

Uniform Civil Procedure Rules (Amendment No 75) 2015 (2015-443) — published LW 31 July 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.

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Authors
Christine Jones
Kim Nguyen
 
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