Australia: NSW Government Bulletin - 8 February 2017

Last Updated: 18 February 2017
Article by Christine Jones and Kim Nguyen

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.

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.

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In the media

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In practice and courts

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COAT National Conference, 8 - 9 June 2017
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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
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Right to Information and Privacy Practitioners Network forum 15 February 2017 to 15 November 2017
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New South Wales Consultations
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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.


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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.


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.

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Christine Jones
Kim Nguyen
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