Warnings and cautions
A recent decision of the Land and Environment Court has served as a reminder to those exercising enforcement powers and functions to ensure that they:
Any failure to do so could lead to evidence being inadmissible and have the potential to derail a prosecution, as recently occurred in Port Macquarie-Hastings Council v Waite  NSWLEC 146.
The judgment concerned the admissibility of a record of interview (ROI) conducted between the accused (Accused), and the prosecutor, Port Macquarie-Hastings Council (Council).
Council had charged the Accused with three offences under the Environment Planning and Assessment Act 1979 (EPAA), including carrying out development without consent and carrying out prohibited development on the land.
During the ROI, Council’s investigating officer gave the following warning to the Accused:
…… I’ll caution you that you don’t have to say or do anything here today but anything you do say or do can be recorded and may be used in evidence against you. Do you understand that?
The central question was whether, to enable the Council to use the ROI as evidence in the hearing, the then s 119S of the EPAA (now s 9.31) required it to warn the Accused that he could object to answering a question during the interview on the ground that it might incriminate him.
Then s 119S (now s 9.31) of the EPAA sets out the provisions relating to requirements to furnish records or information or answer questions, and provides that:
(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection
However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:
(a) the person objected at the time to doing so on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
Put simply, two of the key findings of the Court were that:
The Council conceded, with which the Court agreed, that this result followed notwithstanding that the Accused was given a warning for the purposes of s 139(2) of the Evidence Act 1995 (the caution that a person does not have to say or do anything but anything the person does say or do may be used in evidence against them).
As the Accused submitted, the failure to give the warning in respect of his privilege against self-incrimination meant that he was not informed of his fundamental right to answer but maintain an objection based on self-incrimination. Rather, the choice presented to him was to either say nothing and forgo the opportunity to potentially exculpate himself, or provide an answer and potentially incriminate himself. This was contrary to s 119S (now s 9.31) of the EPAA.
In order to ensure that evidence is admissible and to have the best chance of success in any enforcement action, enforcement officers should always ensure that any enforcement and investigative actions are undertaken strictly in accordance with the terms of any applicable delegation, within the terms of the relevant statutory provisions and that appropriate warnings are given and recorded. Training and enforcement guidelines can assist in this regard.
It is also important for enforcement officers to consider and develop a strategy as to how an investigation should be conducted, including whether they are conducting the investigation for civil enforcement or criminal prosecution. For example, the power to object the subject of these proceedings only applies in criminal proceedings. However, enforcement officers should be mindful of how this power is exercised if they are also contemplating criminal enforcement as well.
 Former s 119K (now s 9.23) of the EPAA sets out the powers of “investigation officers” to require answers and record evidence.
Author: Breellen Warry
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Paul Farrell and Department of Home Affairs (No 6)  AICmr 66
FREEDOM OF INFORMATION – whether documents contain deliberative matter prepared for a deliberative purpose – Whether disclosure of personal information unreasonable – Whether contrary to the public interest to release conditionally exempt documents – Freedom of Information Act 1982 (CTH) ss 11A(5), 47C and 47F
Paul Farrell and Department of Home Affairs (No 5)  AICmr 65
FREEDOM OF INFORMATION – whether disclosure would disclose commercially valuable information – Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency – Whether disclosure of personal information unreasonable – Whether contrary to public interest to release conditionally exempt documents – Freedom of Information Act 1982(CTH) ss 11A, 47, 47E(d) and 47F
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HUMAN RIGHTS – application for interlocutory injunctive relief in relation to claims of disability discrimination and adverse actions arising from the Department of Health ’s treatment of an application for registration in the Australian General Practice Training Program – objection to competency on the basis the Court does not have jurisdiction – claims brought under the Disability Discrimination Act 1992 (Cth) and Fair Work Act 2009 (Cth) – no employment or prospective employment relationship – no termination of the disability discrimination complaint by the President of the Australian Human Rights Commission – whether jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – objection to competency upheld
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CRIMINAL OFFENCES – voir dire as to the admissibility of a record of interview in criminal proceedings – whether evidence inadmissible by reason of a failure of the council to advise the accused of his privilege against self-incrimination as required under statute – whether accused required to answer questions or whether interview voluntary.
EVIDENCE – whether record of interview was illegally or improperly obtained – whether admissions contained in record of interview should be excluded on discretionary grounds.
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PRIVATE INTERNATIONAL LAW – application for leave to serve subpoenas and accompanying letters of request in Bermuda, Nevada, Florida and California for production of medical records – whether jurisdiction pursuant to the Hague Evidence Convention or inherent jurisdiction of the court
Zoran Divis v Georgia Knight & Ors  NSWSC 1344
Dismissal of proceedings, Judicial Immunity, Witness Immunity, Police Officers as Defendants
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ADMINISTRATIVE REVIEW – accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders
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ADMINISTRATIVE LAW – Freedom of Information – access to information – scope of the application – personal information – sufficiency of searches – prejudice to future supply of information from informants – prejudice to prevention, detection or investigation of a contravention or enforcement of the law
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ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – cancellation of authorisation as an authorised carer
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ADMINISTRATIVE REVIEW – occupational licensing – security licence – revocation – whether applicant fit and proper person – whether contrary to public interest for applicant to hold a security licence
Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2019 (2019-495) – published LW 11 October 2019
Civil and Administrative Tribunal (Amendment No 6) Rule 2019 (2019-496) – published LW 11 October 2019
Rule 42 Inspections of documents in Registry Insert “(other than a sound recording)” after “record” in paragraph (d) of the definition of public access document in rule 42(8)
Education Amendment (Non-Government Schools) Regulation 2019 (2019-497) – published LW 11 October 2019
Law Enforcement (Powers and Responsibilities) Amendment (Custody Notification Service) Regulation 2019 (2019-500) – published LW 11 October 2019
Civil Liability (Non-economic Loss) Amendment Order 2019 (2019-485) – published LW 1 October 2019
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.