AGL pleads guilty to failure to disclose political donations
AGL Energy Limited and its subsidiary AGL Upstream Infrastructure (together AGL) pleaded guilty in the Land and Environment Court (Court) to eleven failures to make complete disclosures of political donations in breach of the statutory requirements. The matter was heard before Justice Moore.
Requirement to disclose
There has been a requirement to disclose relevant political
donations in the context of various planning applications since 1
October 2008. The requirements to disclose were introduced to
minimise any perception of undue influence in respect of an
undetermined planning application.
The prosecution of AGL is the second successful set of prosecutions
and follows on from the prosecution of Aston Coal 2 Pty Ltd for
similar offences in 2013.
Background to the offences
The offences occurred between January 2008 and April 2014 in the
context of various planning applications (project applications and
subsequent modifications) made to the Minister for Planning in
relation to the Camden Gas Project, the Newcastle Gas Storage
Facility Project, the Broken Hill Solar Power Plant, the Dalton
Power Project and the Gloucester Gas Project.
The offences stemmed from the failure to disclose donations worth
$73,800 to variously the Australian Labour Party, the Liberal Party
and the National Party.
Outcomes
In total AGL was fined $124,000. The Court also ordered that AGL
pay the Secretary's costs of bringing the proceedings and that
half of the fine was to be paid to the Secretary to cover some of
the costs associated with the investigation and other expenses.
Approach to sentencing
The maximum penalty for each offence was $22,000 or imprisonment
for 12 months or both. His Honour found that the offences could be
broken down into two categories: the more serious offences
involving multiple failures to disclose warranted a starting
penalty at the upper end of the range of $18,000 and the less
serious offences involving a single failure to declare warranted a
starting penalty of $12,000, somewhere in the middle of the range.
AGL had entered into a guilty plea at the earliest opportunity and
for that it was given the maximum discount (25%). The result was to
reduce the fines for the higher range offences to $12,000 and each
of the middle range offences to $8,000.
No power to impose publication orders
Changes were made to the Environmental Planning and Assessment
Act 1979 (EP&A Act) on 15 July 2015 which
expanded the range of orders that were able to be made as a
consequence of a conviction for breaching that Act, including the
making of orders to take specified action to publicise the
offence.
The Prosecutor had sought a publication order with respect to each
of the offences.
His Honour said that while he would have ordered the publication
notices he did not have the power to do so because, given that the
offences were committed before 15 July 2015, the provisions in
section 19(1) of the Crimes (Sentencing Procedure) Act
1999 which dealt with the effect of alterations in penalties,
would prevent such an order from being imposed.
Payment of half of the fine to the
Prosecutor
As part of the orders the Prosecutor sought up to 50% of each of
the fines imposed for the offences. His Honour pointed out that
while since 15 July 2015 the Court has had the power to order that
the offender pay the regulatory authority the costs and expenses
incurred during the investigation of an offence and in this case
the Prosecutor did not seek such an order, it would be appropriate
to make an order requiring 50% of each of the fines to be paid to
the Prosecutor.
His Honour did not deal with the situation where a prosecutor
sought both the payment of up to 50% of the fine and the costs and
expenses incurred during an investigation, saying that was a matter
for another day and other proceedings.
Save the Date - 24 March 2017
Government Lawyers half day conference
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In the media
High Court Rules Culleton Disqualified from Federal
Election [2017] HCA 4
The High Court has today (3 February 2017) unanimously held that
Rodney Norman Culleton was incapable of being chosen as a Senator
under s44(ii) of the Constitution at the time of the 2016 election.
The High Court found that Mr Culleton was convicted of a crime and
was subject to be sentenced to imprisonment for one year or longer
and that this disqualified him from being elected during the
Federal election (03 February 2017). More...
Senate recount after High Court rules Culleton's
election invalid
The High Court orders a special recount of the WA Senate vote after
declaring the election of former One Nation senator Rod Culleton
invalid (03 February 2017).
More...
Culleton asks High Court for stay on removal from
Senate
Former One Nation Senator Rod Culleton asks the High Court for a
stay on his ejection from the Senate pending the outcome of two
court cases (31 January 2017).
More...
Susan Kiefel sworn in as first female High Court Chief
Justice
She was appointed as Chief Justice in November and was today
received by a full High Court bench (30 January 2017).
More...
Re Day [2017] HCA 2: Senate Eligibility and Court of
Disputed Returns
Last Friday (27 January 2017), the High Court of Australia
delivered judgment from a single justice in the case of Re Day
[2017] HCA 2. The hearing was to determine questions forwarded by
the Court of Disputed Returns (30 January 2017). More...
Live entertainment venues gain lock out and last drink
extensions
As part of the NSW Government's commitment to creating a more
vibrant nightlife for Sydney while keeping the community safe,
three live entertainment venues have been granted exemptions to the
Sydney CBD and Kings Cross 'lockout' and 'last
drinks' laws (27 January 2017).
More...
High Court takes rare step to hear witnesses in Bob Day
case
It's a high stakes game for former Labor senator Anne McEwen,
who is waiting not just to hear whether former Family First senator
Bob Day was validly elected,, but also what orders the court will
make about how the vacancy should be filled (23 January 2017).
More...
Amendments needed to same-sex marriage Exposure Draft to
ensure it is free from discrimination
The legal profession has recommended a series of changes to the
Exposure Draft of the Marriage Amendment (Same-Sex Marriage)
Bill during a Parliamentary inquiry hearing in Melbourne today
(23 January 2017).
More...
Major Shake Up of Victoria's Bail
System
Under the changes, the Government will ensure magistrates are
available after hours to consider bail applications for people
charged with violent offences where police oppose bail. This will
mean more matters are heard by magistrates, rather than bail
justices (23 January 2017).
More...
Deadly Bourke St rampage prompts bail law reform in
Victoria
The Victorian Government will establish a night court for
magistrates to hear after-hours bail requests, as part of a big
shake-up of the system following Melbourne's Bourke Street
tragedy (23 January 2017).
More...
Brisbane courts: Juror's internet search may force
retrial
Taxpayers may be forced to stump up for the cost of a new trial for
a Queensland police officer, after a judge told a court that a
juror playing detective during a criminal trial may have flouted
his orders (21 January 2017).
More...
An Australian court has ruled your metadata is not
personal information
The Australian Privacy Commissioner's quest to have
telecommunications metadata classified as personal has come to an
abrupt halt, with the full bench of the Federal Court ruling
against the organisation (20 January 2017).
More...
NSW Venues gain lockout and last drinks
extensions
The NSW Government has announced the first live entertainment
venues to gain extensions to the Sydney CBD and Kings Cross lockout
and last drinks laws (20 January 2017).
More...
Two charged over alleged fraud and identity crime
offences: Australian Federal Police
A man and woman have been charged as part of an ongoing
joint-agency investigation into alleged identity crime offences.
Investigators seized various forms of identification and
documentation (20 January 2017).
More...
NSW Government Releases Consultation Paper on Civil
Justice System Reform
The NSW Government is reviewing the civil justice system, releasing
a consultation paper late last year that asks for public
submissions on how it can improve the current system. In a media
release announcing the launch of the paper, the Government cited
figures from the Law and Justice Foundation saying that around 2.8
million people in NSW face a significant legal problem each year,
with 85% of those matters involving civil law (19 January 2017). More...
Personal data up for grabs in NSW land titles sale,
experts warn
The private operator of NSW's land titles registry would not
only have access to all property and ownership data, but also
sensitive information about bankruptcies, marriages, divorces and
deaths, experts warn (12 January 2017).
More...
In practice and courts
Productivity Commission: Report on Government
Services
The annual Report on Government Services (RoGS) provides
information on the equity, effectiveness and efficiency of
government services in Australia. The 2017 RoGS will be
progressively released from 24 January to 3 February.
More...
OAIC: 28 January is Data Protection Day — are your
digital accounts data-tight?
28 January 2017 is the 11th annual
Data Protection Day — to mark the occasion, check the
security of your digital accounts, and encourage others to do the
same.
More...
Applied Research in Crime and Justice Conference
2017
On 15 & 16 February 2017 the NSW Bureau of Crime Statistics and
Research and the Griffith Criminology Institute will host the
annual Applied Research in Crime and Justice Conference in Sydney.
The conference will showcase empirical, policy relevant research
across all crime and justice domains.
More...
COAT National Conference, 8 - 9 June 2017
COAT National conference will be held in conjunction with the COAT
NSW Conference in Sydney on 8 & 9 June 2017. SAVE THE DATE! 8 - 9 June 2017
CONFERENCE http://www.coat.gov.au/
OAIC: Privacy Commissioner v Telstra Corporation Limited Federal Court decision The Office of the Australian Information Commissioner notes the judgment made by the Federal Court today to dismiss our appeal of the Administrative Appeals Tribunal's decision in Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991 (18 December 2015). The OAIC is currently considering the decision (19 January 2017). More...
Attorney-General's Department (AGD) Consultation -
Telecommunications Data in Civil Proceedings
Released for public comment
Consultation Paper - Access to Retained Data in Civil
Proceedings (undated), the . AGD is interested in the following
issues: the circumstances in which parties to civil proceedings
request access to telecommunications data; the impact on civil
proceedings if parties are unable to access telecommunications
data; and the kinds of civil proceedings or circumstances where the
Telecommunications
Act 1997 No. 47 (Cth) should not apply.
More...
Right to Information and Privacy Practitioners Network
forum 15 February 2017 to 15 November 2017
View more:
NSW Right to Information and Privacy Practitioners Network
forum
New South Wales Consultations
17 March 2017 - Closing date for comments to the NSWLRC on
Consultation Paper 18 - Dispute resolution: model
provisions
NSW ICAC: Prosecution briefs with the DPP and
outcomes
Tables showing outcomes of ICAC-related prosecutions and briefs
with the Director of Public Prosecutions Updated 30 January 2017
Prosecution briefs with the DPP and outcomes
NCAT: Videos help make tribunal processes
clearer
Four common issues presented in five different languages - NCAT has
produced four videos that show people how to deal with four common
matters that the tribunal's divisions hear (23 January 2017).
More...
NSW Consultation: Dispute Resolution Model
Provisions
The NSW Law Reform Commission has released for public comment
Consultation Paper 18 - Dispute resolution: model provisions
(December 2016). The Consultation Paper provides a set of draft
model provisions related to mediation and some options for
implementation including the possibility of applying them to
non-statutory mediation. Comments close on 17 March 2017.
More...
New Proclamation - Law Enforcement Conduct Commission
Act
Certain provisions of the Law
Enforcement Conduct Commission Act 2016 No. 61 (NSW) have
been proclaimed by Statutory Rule
2017 No. 1 (NSW) to have commenced on 13 January 2017.
This affects the Ombudsman
Act 1974 No. 68 (NSW).
Published – articles, papers, reports
Australia's privacy laws gutted in court ruling on what is
'personal information'
Jake Goldenfein: 19 January 2017
In possibly Australia's most important privacy case to date,
the Federal Court today dealt a severe blow to Australia's
information privacy laws by narrowing the definition of
"personal information". By reasoning that data is only
"personal information" if a person is the actual subject
matter of that information, the court's decision means
"personal information" does not include data that only
reveals identity if linked with other data.
Cases
Casenote: Privacy Commissioner v Telstra Corporation
Limited [2017] FCAFC 4
The Full Federal Court has unanimously overturned an appeal from
the Privacy Commissioner against Telstra in a case concerning
customer access under the Privacy Act 1988 (Cth) to
"metadata" held by the company. While the case has a
lengthy history, the appeal itself was determined on what Justice
Kenny and Justice Edelman described as "a very narrow question
of statutory construction concerning the meaning of the words
"about an individual" as they applied in the Privacy Act
prior to 12 March 2014" [at 5] (30 January 2017).
Re Culleton [2017] HCA 3
Constitutional law (Cth) – Judicial power – Election of
Senator – Validity – Court of Disputed Returns –
Power to hear petition – Whether non-judicial
–Constitution, Ch III – Commonwealth Electoral Act 1918
(Cth), Pt XXII, Div II. Practice and procedure – High Court
of Australia – Failure to raise argument at hearing –
Principles applicable – Validity – Commonwealth
Electoral Act 1918 (Cth), Pt XXII, Div II.
AIN v Medical Council of New South Wales [2017]
NSWCATAP 23
ADMINISTRATIVE REVIEW – application under Privacy and
Personal Information Protection Act 1998 – use and
disclosure of personal information – duration of disclosure
contravention - nature and content of disclosure - whether use as
well as disclosure – errors of fact and law.
AIN v Medical Council of New South Wales [2017]
NSWCATAP 22
ADMINISTRATIVE REVIEW – application under Privacy and
Personal Information Protection Act 1998 – collection of
personal information – meaning of lawful purpose –
failure to exercise jurisdiction by not addressing Appellant's
case on unlawfulness - disclosure of information – effect of
non-publication order.
AIN v Medical Council of New South Wales [2017]
NSWCATAP 21
ADMINISTRATIVE REVIEW – application under Privacy and
Personal Information Protection Act 1998 – access to
personal information – scope of application – meaning
of s 14 of PPIP Act – identification of matters relevant to
liability and remedy.
Harrington v Corrective Services New South Wales,
Department of Justice [2017] NSWCATAD 46
ADMINISTRATIVE LAW; Disability Discrimination; direct
discrimination; indirect discrimination; victimisation; application
for dismissal under s 55 of the Civil and Administrative
Tribunal Act 2013; lacking in substance; want of
prosecution.
Edward Lee's Imports Pty Ltd v Commissioner for
Fair Trading [2017] NSWCATOD 13
ADMINISTRATIVE LAW – merits review - application for remittal
at early stage of proceedings – relevant factors when
exercising discretion to remit.
Purdie v Commissioner for Fair Trading [2017]
NSWCATAD 38
ADMINISTRATIVE LAW – review of decision to decline the grant
of a tattoo parlour licence – adverse security determination
by Commissioner of Police – what is the correct and
preferable decision in relation to the licence application.
Sharkey v Minister Administering the Water Management
Act 2000 [2017] NSWLEC 3
PRACTICE AND PROCEDURE: whether a specific question of statutory
construction should be dealt with separately and before any
residual factual issues requiring expert evidence –
principles to be applied.
Meineke v Acting Chief Executive, Office of Local
Government (No 2) [2017] NSWCATOD 14
CIVIL AND ADMINISTRATIVE TRIBUNAL – Local Government Act
1993 – breach of Code of Conduct ––
councillor retained to assist a client have his land compulsorily
acquired by the Council of which he was a councillor – paid a
standard fee rather than a success fee – one of a number of
preconditions to this was having the Council designated in the
Local Environmental Plan as the acquisition authority –
appellant did not absent himself from two meetings and in relation
to one meeting made no declaration –– misconduct
established – decision of Respondent confirmed.
NSW Commissioner of Police v Keep Sydney Open Ltd
[2017] NSWSC 5
PUBLIC ASSEMBLY – Protest against State Government
"lock-out" laws affecting licensed premises –
Application by Police Commissioner for Order under Summary
Offences Act 1988 NSW, section 25(1) – Order made.
Acting Chief Executive, Office of Local Government v
Passas (No 2) [2017] NSWCATOD 12
CIVIL AND ADMINISTRATIVE TRIBUNAL – Local Government Act
–misconduct of Local Government Councillor – Disruption
to Council meetings – Unauthorised interaction with Council
staff – disqualification ordered.
CGG v Commissioner of Police, NSW Police Force
[2017] NSWCATAD 29
PRIVACY – Retention by Commissioner of Police of fingerprints
obtained for security licensing purposes under the Security
Industry Act 1997 (NSW) – Second applicant failed to
apply for internal review – Tribunal lacks jurisdiction in
respect of second applicant's application - Whether
Commissioner exempt from compliance with amendment principle
– Security Industry Act provides that Commissioner may use
fingerprints obtained under that Act for any purpose and confers
discretion to refuse application for destruction of fingerprints -
Whether Security Industry Act reasonably contemplates
non-compliance with obligation to delete personal information upon
request where not relevant to purposes of collection and use -
Whether Commissioner has contravened obligation to ensure first
applicant's personal information kept for no longer than is
necessary for the purposes for which it may lawfully be used
– Whether power in Security Industry Act to use fingerprints
for any purpose authorises use for purposes extraneous to that
Act.
Marden v Pharmacy Council of New South Wales
[2017] NSWCATAD 34
GOVERNMENT INFORMATION – Personal factors of application
favouring disclosure – Applicant is pharmacist the subject of
a complaint to which access is sought – Complainant has
objected to disclosure including disclosure of complainant's
identity - Public interest in applicant being provided with her
personal information – Public interest in obtaining
information to which individual entitled as matter of procedural
fairness - To what extent information sought is applicant's
personal information – To what extent applicant is entitled
to information as a matter of procedural fairness –
Procedural fairness only requires disclosure of substance of
complaint - Public interest considerations against disclosure
– Disclosure could reasonably be expected to reveal
complainant's personal information – Whether scheme
concerning the handling of complaints under the Health Care
Complaints Act 1993 (NSW) has the effect that the
complainant's information is not personal information - Whether
the decision to refuse access to information is inconsistent with
that scheme – Whether complainant knew that complainant's
identity would be provided to applicant at time of making complaint
– Public interest consideration against disclosure of
complainant's personal information outweighs considerations in
favour of disclosure of that information – Applicant
otherwise entitled to access information in complaint.
Turner v Commissioner of Police, NSW Police Force
[2017] NSWCATAD 33
ADMINISTRATIVE LAW – access to government information –
access application – whether information not held by agency -
reasonableness of search.
McCurday v Commissioner for Fair Trading [2017]
NSWCATAD 35
ADMINISTRATIVE REVIEW - tattoo parlours – tattoo operator
licence - adverse security determination - fit and proper person -
public interest.
Secretary, Department of Planning and Environment v AGL
Energy Limited; Secretary, Department of Planning and Environment v
AGL Upstream Infrastructure investments Pty Limited [2017]
NSWLEC 2
SENTENCING – characterisation of offences – approach to
consideration of offences collectively – offences with
multiple failures to declare being toward the upper end of the
range – offences with single failure to declare being in the
middle of the range – accumulation and totality where
multiple offences – fines imposed.
SENTENCING - publication orders – availability to be ordered
when legislation providing for them came into force after
commission of offences but before charges laid – legislative
prohibition on retrospective application of increased penalty
– are publication orders a penalty? – held publication
orders are to be characterised as a penalty and not able to be
required in these circumstances.
CRIMINAL PROCEDURE – prosecutor's application for moiety
of fines imposed – purpose for ordering such payment being to
compensate for investigation and other expenses – statutory
power now available to make additional order for such purposes
– appropriate to make an order in present circumstances.
Commissioner of Police v Danis [2017] NSWCATAP
7
GOVERNMENT INFORMATION (PUBLIC ACCESS) – Agency refusal to
deal with access application – Set aside by Tribunal –
Appeal – Interpretation of agency discretion to refuse to
deal with access application – Whether Tribunal's further
order requiring agency to disclose within scope of proceedings.
Government Information (Public Access) Act 2009, ss 58,
60(1)(d); Administrative Decisions Review Act 1997, s
65.
Seven Network v Commissioner of Police, NSW Police
Force [2017] NSWCATAD 31
GOVERNMENT INFORMATION – Applicant withdrew proceedings for
review of a decision to refuse access to information –
Tribunal dismissed proceedings – Whether Tribunal has
jurisdiction to review the decision the subject of the proceedings
which have been dismissed – No power to renew or reinstate
proceedings – Tribunal functus officio - No jurisdiction.
Mumby v Commissioner for Fair Trading [2017]
NSWCATAD 27
ADMINISTRATIVE REVIEW - tattoo parlours – tattoo operator
licence - adverse security determination - fit and proper person -
public interest.
ALZ v SafeWork NSW (No 4) [2017] NSWCATAD
1
Privacy - information protection principle - personal information
-Health information - Health Privacy Principle - retention and
security safeguards - reasonable steps to prevent unauthorised
access - psychological harm – damages.
Noble v University of New South Wales [2017]
NSWCATAD 2
GOVERNMENT INFORMATION – Access to information in part of
workplace report refused –Whether disclosure could reasonably
be expected to prejudice the supply to the University of
confidential information – Whether disclosure could
reasonably be expected to reveal personal information –
Weight to be given to competing considerations.
Legislation
Proclamations commencing Acts
Law Enforcement Conduct Commission Act 2016 No 61 (2017-1) — published LW 13 January 2017.
Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—General) Order 2017 (2017-17) — published LW 30 January 2017.
Administrative Arrangements (Administrative Changes—Ministers) Order 2017 (2017-18) — published LW 30 January 2017.
Administrative Arrangements (Interim Ministerial Changes) Order 2017 (2017-7) — published LW 23 January 2017.
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.