Australia: NSW Government Bulletin - 23 September 2015

Last Updated: 30 September 2015
Article by Jack O’Donnell, Kim Nguyen and Christine Jones

Most Read Contributor in Australia, September 2017

Duncan v ICAC

Earlier this month, the High Court handed down its decision in Duncan v Independent Commission Against Corruption [2015] HCA 32 (Duncan v ICAC), unanimously dismissing Mr Duncan's application, which sought a declaration that Part 13 of Schedule 4 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) was invalid.

Mr Duncan challenged the NSW government's legislative response to the decision of the High Court in ICAC v Cunneen [2015] HCA 14 (the Cunneen decision). The Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) inserted Part 13 of Schedule 4 into the ICAC Act following the Cunneen decision in order to retrospectively validate findings and activities of the Commission of the type the High Court had found to be outside its powers. For more on Mr Duncan's application see our 12 August edition.

Mr Duncan submitted that Part 13 does not deem his conduct in the ICAC report to be "corrupt conduct" and that the Part 13 does not validate invalid acts of the Commission, but rather directs Courts to treat as valid acts, acts which were and remain invalid. Mr Duncan also argued that this case can be distinguished on this basis from others where High Court has upheld the validity of laws which effect the retrospective validity of invalid acts.

The High Court held that clauses 34 and 35 of Part 13 of Schedule 4 of the ICAC Act (the Clauses) deem the Commission's acts completed before 15 April 2015 to be valid to the extent that they would have been valid if the definition of corrupt conduct in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. A majority of the High Court held that the Clauses operate to effect an alteration in the substantive law as to what constitutes corrupt conduct. The High Court unanimously held that the Clauses retrospectively confer jurisdiction upon the Commission.

ICAC Amendment Bill

The Independent Commission Against Corruption Amendment Bill 2015 (NSW) was passed by both houses of parliament last week. The Bill was introduced to implement the recommendations of the report made on 30 July 2015 by the Independent Panel appointed by the Premier and established to review the Commission's jurisdiction. Together with the decision in Duncan v ICAC, it provides greater certainty in relation to the Commission's powers to investigate and make findings of corruption.

The Bill broadens the Commission's power by enabling it to investigate and make findings of corruption in relation to the conduct of any person (as opposed to just government officials) that impairs, or that could impair, public confidence in public administration and which could involve:

  • collusive tendering;
  • fraud in or in relation to certain applications for licences, permits or clearances under statutes designed to facilitate the management and commercial exploitation of resources or designed to protect health and safety;
  • dishonestly obtaining or assisting or benefiting from the payment or application of public funds or the disposition of public assets for private advantage;
  • defrauding the public revenue; and
  • fraudulently obtaining or retaining employment as a public official.

Seminar – contemporary issues with expert evidence – a practical guide

Save the date! We are pleased to host Michael Williams who will be presenting on contemporary issues with expert evidence – a practical guide on Tuesday 20 October at 12.45pm.

Michael Williams is a Barrister of the Middle Temple and the High Court of Australia. He practised as a Senior Crown Prosecutor and Revenue and Customs Prosecutor in England, in-house with the Australian Federal Police, as Crown Counsel in Queensland, and latterly as in-house Counsel with the General Medical Council.

Michael holds, or has held a number of quasi-judicial appointments in which he regularly receives, assesses and makes determinations upon expert evidence. He is an experienced trainer and presently conducts training for the Royal Institution of Chartered Surveyors (RICS) and the Academy of Experts (among others). In that capacity, he regularly conducts courtroom skills and expert witness training courses for a variety of diverse organisations.

An invitation will be sent shortly. Registration will be open to lawyers employed in the public sector.

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

Strengthening court security in NSW
Security at key courthouses across NSW will be further strengthened with the appointment of 40 new Sheriff's Officers as part of the NSW Government's counter-terrorism response, during a period when the National Terrorism Public Alert is at high (21 September 2015). Strengthening court security [PDF, 192kb]

Treatment of inmates serving life sentences in NSW
An Upper House inquiry has been established to examine the security classification and custodial management of inmates sentenced to life imprisonment. It has been reported that prisoners facing life behind bars have been reclassified from maximum security prisons to medium and minimum security facilities, resulting in concerns that these inmates are being treated too leniently, especially considering the seriousness of their crime (11 September 2015). More...

Online court makes access to justice easier in NSW
Access to justice will be faster, easier and cheaper with the pilot of the State's first Online Court. This will initially be used for civil cases in the Local Court General Division and will eliminate the need for legal practitioners to attend pre-trial hearings in court (09 September 2015). More...

New prison crackdown on illegal mobile phones in NSW
The Minister for Corrections has announced a new crackdown on contraband mobile phones in prisons, including new detection equipment and the expansion of phone jamming. By the end of this year, all maximum and medium security prisons will have a full body scanner capable of detecting switched off mobile phones concealed within a body cavity (09 September 2015). More...

High court decision should embolden Premier to pursue reform
The High Court handed down a unanimous decision to reject the case brought forward by mining mogul Travers Duncan to overturn laws passed by NSW parliament. Today's decision in Duncan v. ICAC called for the introduction of further corruption-fighting reform and the corruption findings from July 2013 will stand despite repeated legal appeal (09 September 2015) More...

Making jury service easier and simpler in NSW
New technology is dramatically speeding up and simplifying the process of being called for jury service. The NSW Attorney General announced that year after a new online jury management system was introduced, time savings achieved have exceeded all expectations (07 September 2015) More...

In practice and courts

ICAC: Prosecution outcomes and briefs
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 11 September 2015 (11 September 2015). Prosecution outcomes and briefs with the DPP

ICAC: Public inquiry into corruption allegations involving $1.7 million obtained by TAFE ICT manager
The ICAC's public inquiry held as part of its Operation Sonet investigation 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 has concluded (087 September 2015). Public inquiry into corruption allegations involving $1.7 million obtained by TAFE ICT manager concluded

NSW Parliament

Inquiries receiving submissions
Inquiry into Reparations for the Stolen Generations in New South Wales, closes 27 September.
Inquiry into The Final Report of the Expert Panel – Political Donations and the Government's Response, closes 16 October.
Inquiry into Remedies for the serious invasion of privacy in New South Wales, closes 20 September.
Inquiry into Reparations for the Stolen Generations in New South Wales, closes 27 September.
Inquiry into elder abuse in New South Wales, closes 15 November.
Inquiry into Security classification and management of inmates sentenced to life imprisonment, closes 25 October.


Inquiry into Progress of the Ombudsman's investigation 'Operation Prospect' (report due) (Tue 08)

Published – articles, papers, reports

After Heydon and Carmody, does Australia need a new test for judicial recusal?
Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW Australia
Under the Australian procedure for determining disqualification for bias, the judge must apply the test of whether a "fair-minded lay observer" might reasonably apprehend that they might not be impartial (September 2015). More...


Duncan v Independent Commission Against Corruption [2015] HCA 32
Statutes – Interpretation – Amending Acts – Independent Commission Against Corruption Act 1988 (NSW) – Meaning of corrupt conduct – Where High Court decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14 declared meaning of "corrupt conduct" in ICAC Act – Where effect of Cunneen was to make invalid some past acts of respondent – Where Pt 13 of Sched 4 to ICAC Act inserted to validate otherwise invalid acts done by respondent before decision in Cunneen – Whether Pt 13 invalid. Constitutional law – Validity of legislation – Retrospective amendments – Relevance of Kable principle – Relevance of Kirk principle.
Words and phrases – "corrupt conduct", "deem", "Kable principle", "legal consequences", "retrospective validity". More...

BLW v Nepean Blue Mountains Local Health District [2015] NSWCATAD 184
PRIVACY – Health privacy principles – Information protection principles – Alleged contravention of disclosure, use and security principles – Whether alleged conduct occurred – Information held by agency – Conduct of employees which is attributable to agency More...

BTX v University of Wollongong [2015] NSWCATAD 190
LEAVE to proceed out of time – reasonable time to lodge application – reasonable explanation for delay – leave refused – application dismissed – basis to consider merits as part of explanation for delay.
University (respondent), by way of an internal review under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). In that review the respondent examined whether the applicant's allegations of breaches of privacy were established. More...

Workers' Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270
STATUTORY INTERPRETATION – application of general law principles to statutory compensation scheme – construing two statutes of the same legislature conformably – whether provisions of one statute picked up by second statute WORKERS' COMPENSATION – dust diseases – whether qualified claimant entitled to payment of benefit – whether Dust Diseases Board entitled to refuse claim where damages recovered – whether general law prohibition on double recovery applies to a claim for compensation under Workers' Compensation (Dust Diseases) 1942 (NSW) More...



Bills introduced Government – 18 September 2015 (week ending)
Fair Trading Amendment (Information About Complaints) Bill 2015
Local Government Amendment (Councillor Misconduct and Poor Performance) Bill 2015

Non-Government – 18 September 2015
Limitation Amendment (Child Abuse) Bill 2015

Bills passed by both Houses of Parliament – 18 September 2015
Child Protection Legislation Amendment Bill 2015
Independent Commission Against Corruption Amendment Bill 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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Kim Nguyen
Christine Jones
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