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.
Reports
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...
Cases
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...
Legislation
NSW
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.
