Australia: NSW Government Bulletin - 16 December 2015

The Supreme Court of NSW recently handed down its decision in McCloy v Latham [2015] NSWSC 1879 dismissing Jeff McCloy's summons seeking to restrain the Independent Commission Against Corruption (Commission) from continuing with, or reporting upon, an investigation conducted by it known as "Operation Spicer", at least while the first defendant (the Commissioner) was presiding over that investigation. Mr McCloy, a property developer and former mayor of Newcastle, alleged that there were reasonable grounds for apprehending that the Commissioner might not bring an open mind to the resolution of the question of what, if any, findings to make in respect of him.

"Operation Spicer", an inquiry into illegal political donations by property developers in NSW, was conducted from 28 April to 12 September 2014. It was particularly heated, and at times intensely confrontational. These matters, it was said by His Honour Justice McDougal, "must be assessed, in deciding whether the matters upon which Mr McCloy relies are capable of founding the necessary reasonable apprehension of bias".

The nature of Mr McCloy's allegations, broadly speaking, included adverse treatment of a number of witnesses, influenced by what was called a "predetermined case theory" implicating Mr McCloy, failure to put matters to Mr McCloy with a proper factual or legal basis, indications of political bias by both Counsel assisting and the Commissioner, lack of even-handed treatment and lack of procedural fairness.

At a general level, His Honour noted numerous structural flaws in the articulation of Mr McCloy's case, which from the outset made his case difficult to succeed. Firstly, Mr McCloy's case was not that any one, or indeed any one group, of the grounds on which he relied was of itself sufficient to give rise to a reasonable apprehension of bias. Rather, it was the cumulative effect of all the matters alleged that had this result. His Honour noted if, among the grounds, "something alleged is inherently incapable of creating a reasonable apprehension of bias, then the fact that it is combined with other matters that may contribute towards that apprehension does not add anything". Secondly, His Honour noted that the nature or content of the alleged "predetermined case theory" was "unilluminating". To allege that an investigative body such as the Commission had a "case theory" at the stage when it decided to conduct a public hearing was, in His Honour's eyes, to do no more than say that, in that body's view, on the basis of information already garnered, there was a reasonable basis for holding the public hearing. Thirdly, His Honour noted that particular matters complained of were consistently taken out of context and, when examined in context, lost much (and in many cases, all) of the sinister significance ascribed to them. Fourthly, Mr McCloy failed to articulate either the findings that might be affected by the alleged apprehended bias, or the way in which the matters complained of could rationally effect a consideration of those findings, which made it "very difficult to grant quia timet relief".

Turning to the specific issue of apprehended bias, His Honour noted that the question was whether the Commissioner's mind might reasonably be thought to be closed on the key question: namely, has Mr McCloy engaged in corrupt conduct? In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, this was stated by their Honours Justices Gaudron and McHugh at 100 as:

... what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

Adopting the fair-minded reasonable observer test, His Honour found that a rational consideration of the transcript of the whole of Mr McCloy's evidence, which put the matters complained of into their proper context, showed that he was treated with scrupulous fairness by the Commissioner, and given every opportunity by the Commissioner to state his position. Mr McCloy's summons was dismissed with costs.

Save the Date - 23 February 2016
Government Lawyers half day conference
Holding Redlich and the ACC invite you to attend an intensive half day conference. Registration is open to those 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

ICAC: Developer Jeff McCloy fails to force commissioner Megan Lathan to stand down from donations inquiry
Former Newcastle lord mayor Jeff McCloy has failed in his bid to force Independent Commission Against Corruption (ICAC) commissioner Megan Latham to stand down from an inquiry into political donations (10 December 2015). More...

Growing support for Cowra justice reinvestment pilot project
There is growing support for Cowra in central west New South Wales to pilot a program that sees millions of dollars redirected to keep low-risk criminals out of jail (09 December 2015). More...

The impact of the NSW Intensive Supervision Program on Juvenile Reoffending
An intensive supervision program for juvenile offenders has been found to be no more effective in reducing juvenile re-offending than placing them on a traditional supervised order, a new report by the NSW Bureau of Crime Statistics and Research has found (08 December 2015). The impact of the NSW Intensive Supervision Program on juvenile reoffending

In practice and courts

ICAC: Latest edition of Corruption Matters
The December 2015 edition of the ICAC's Corruption Matters newsletter is now available online ( 08 December 2015). Latest edition of Corruption Matters now available

ICAC: Statement regarding the Inspector of the ICAC's report
ICAC statement regarding the Inspector of the ICAC's "Report Pursuant to Section 77 Independent Commission Against Corruption Act 1988 Operation 'Hale' ICAC re Margaret Cunneen SC & Ors" (04 December 2015). Statement regarding the Inspector of the ICAC's report

ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 1 December 2015. Prosecution outcomes and briefs with the DPP

NSW Parliament: committees - Inquiries receiving submissions

Inquiry into the Management of NSW Public Housing Maintenance Contracts, closes 5 February.

Inquiry into Sexualisation of children and young people, closes 5 February.

Inquiry into elder abuse in New South Wales, closes 12 February.

Inquiry into Legislative Council committee system, closes 6 March.

Inquiry into Reparations for the Stolen Generations in New South Wales, closes 10 March.

NCAT: Updated 'Getting help' fact sheet
NCAT has revised its popular 'Getting help' fact sheet which provides contact details for organisations that can help you with free or low cost legal information, advice and assistance (02 December 2015). Getting help fact sheet [PDF, 122kB]

Published – articles, papers, reports

NSW Parliament House in Review 2015
This edition of House in Review summarises the work of the Legislative Council during 2015, the first sitting year of the 56th Parliament. See Vol 56/15, 2015 Summary

Cases

BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270
Alleged breach Section 18 Privacy and Personal Information Protection Act-No error of law disclosed by Tribunals decision. More...

McCloy v Latham [2015] NSWSC 1879 ADMINISTRATIVE LAW – judicial review – apprehended bias – where plaintiff was a witness in an inquiry conducted by the Independent Commission Against Corruption – where he alleges that the Commissioner might not bring an open mind to the question of what, if any, findings to make in respect of him – applicable test of whether a fair-minded lay observer might reasonably apprehend the same – where the conduct complained consisted of numerous episodes before and during the ICAC proceedings – where no episode alone could give rise to a reasonable apprehension – result that the cumulative effect of the episodes together could not do so – where much of the conduct referable to counsel assisting, rather than the Commissioner – whether attributable to the Commissioner – where many episodes explicable by reference to context – where, in any event, no rational connection was demonstrated between impugned conduct and the allegation that the Commissioner would not bring an open mind to her task – consequence that observer could not reasonably form the apprehension suggested. More...

Thomson v Sydney Trains [2015] NSWCATAD 257
GOVERNMENT INFORMATION – Application to Tribunal for review of agency's decision two years after making of reviewable decision – Application to extend time for the making of the application – Principles to be applied – Whether applicant provided a reasonable excuse for the delay in making the application – Excuse not reasonable. More...

Legislation

NSW

Regulations and other miscellaneous instruments
Civil and Administrative Tribunal (Amendment No 3) Rule 2015 (2015-735) — published LW 4 December 2015

Environmental Planning and Assessment Amendment (Proceedings) Regulation 2015 (2015-744) — published LW 4 December 2015

Evidence (Audio and Audio Visual Links) Amendment (Bail Matters) Regulation 2015 (2015-736) — published LW 4 December 2015

New Proclamation - Court Security Amendment Act
The remaining provisions of the Court Security Amendment Act 2011 No. 15 (NSW) have been proclaimed by Statutory Rule No. 716 (27 November 2015) to have commenced on 30 November 2015. This affects the Court Security Act 2005 No. 1 (NSW).

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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