Icons/Ionic/Social/social-pinterest

NSW Government Bulletin

20 February 2019

#Government

Christine Jones

Published by Christine Jones, Julia Gitonga

NSW Government Bulletin

Knightsbridge North Lawyers Pty Ltd v State of New South Wales (No 2) [2019] NSWSC 45 

In this case, Schmidt J of the NSW Supreme Court considered, amongst other things, whether a failure to comply with a requirement in the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) affected the validity of a decision made under that legislation. The Supreme Court determined that if there was a failure to comply with a requirement in the ICAC Act, it was not of a kind that would give rise to the conclusion that failure to comply should invalidate the decision. 

Legislation

In November 2016 the Independent Commission Against Corruption Amendment Act 2016 (NSW) (the Amendment Act) was enacted to amend the ICAC Act in order to, amongst other things, re-organise the structure of NSW Independent Commission Against Corruption (the ICAC) by introducing offices of Chief Commissioner and Commissioners and replacing the former single Commissioner structure. The Amendment Act came into force on 7 August 2017.

On 31 March 2017 the Independent Commission Against Corruption Regulation 2010 was amended by the Independent Commission Against Corruption Amendment (Commissioner) Regulation 2017 (NSW) (the Amendment Regulation). The object of the Amendment Regulation was to make a transitional provision relating to the first appointment of the Chief Commissioner and other Commissioners of the ICAC who were to take office on the commencement of the Amendment Act.

Background

The ICAC was investigating the activities of the Awabakal Local Aboriginal Land Council (Awabakal Land Council). The investigation related to, amongst other things, the proposed sale and development of properties which the Awabakal Land Council owns and the question of whether any public official, being an Awabakal Land Council Board director, acted dishonestly and/or in breach of their duty as a Board member, in agreeing to or purporting to retain or retaining Knightsbridge North Lawyers Pty Limited (Knightsbridge), to act for the Awabakal Land Council on the proposed sale and development.

The ICAC summoned Knightsbridge to appear at its public inquiry into these matters.

Previously, in March 2018, Fagan J in Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387 dismissed Knightsbridge’s application to restrain the ICAC from pursuing its inquiry.

The present decision concerned a challenge by Knightsbridge to the validity of the appointment of the ICAC’s Chief Commissioner and Commissioners. It sought, amongst other things, a declaration that the purported referral made pursuant to the Amendment Regulation and the purported appointments of the Chief Commissioner and Commissioners made under the ICAC Act, were invalid and of no effect.

In particular, Knightsbridge contended that the appointments of the ICAC’s Chief Commissioner and Commissioners were invalid because:

  • the requirements of section 64A of the ICAC Act were not complied with. Section 64A of the ICAC Act required, among other things, that the Minister refer a proposal to appoint a person as a Commissioner to the Joint Committee in writing
  • further, properly construed, section 64A of the ICAC Act did not empower the Joint Committee to advise of its decision not to veto the proposed appointments, until 8 August 2017 (the day after the Amendment Act came into force on 7 August 2017). Accordingly there was no power to make the appointments on 7 August 2017.

The State of New South Wales argued that if there had been any failure to comply with a statutory requirement when the appointments of the Chief Commissioner and Commissioners were made, Parliament did not intend that the consequence was the invalidity of the appointments.

The Supreme Court had regard to Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [91] in which the High Court held that even an act done in breach, rather than attempted compliance with a condition such as that then imposed by section 64A of the ICAC Act, regulating as it does the exercise of an important statutory power, is not necessarily invalid and of no effect. 

In this regard, the Supreme Court determined that the Chief Commissioner’s appointment was not rendered invalid by the failure to refer his proposed appointment to the Joint Committee in writing or by the confirmation of the appointment on 7 August 2017. If this involved a failure to comply with the requirements of section 64A of the ICAC Act, then it was not a failure of a kind which could give rise to the conclusion that the legislature intended that it render the Chief Commissioner’s appointment invalid.

Editorial: Christine Jones & Julia Gitonga

In the media

Claims of judicial overreach
The New South Wales Bar Association has the highest regard for the integrity of the judiciary and has concerns about recent claims in the media of judicial overreach with respect to the judgment of Preston CJ in Gloucester Resources Ltd v Minister for Planning (13 February 2019).  More...

New South Wales coal mine ruled out due to climate change, in landmark court decision
Australia’s coal-lump caressing prime minister won’t speak its name, but a NSW judge has cited climate change in a landmark ruling on Friday, blocking plans to develop an open-cut coal mine in the state’s Hunter Valley region (8 February 2019).  More...

Social disadvantage and emotional abuse link to repeat intimate partner violence
A new study by the NSW Bureau of Crime Statistics and Research (BOCSAR) has found that the odds of being a repeat victim of intimate partner violence (IPV) within 12 months are 10 times higher in the most disadvantaged 20 per cent of the Australian population than in the least disadvantaged 20 per cent. See the report here (11 February 2019).  More... 

Victims to have their say in forensic mental health cases in New South Wales
Victims of forensic patients will have a greater opportunity to be heard in Mental Health Review Tribunal (MHRT) proceedings following the commencement of new laws which allow submissions to be made outlining the impact a forensic patient’s leave or release would have on a victim (4 February 2019).  More...

In practice and courts

Law Council of Australia submissions
11 February 2019—Law Council
Review of the foreign lawyers’ regulatory regime

NCAT: New adjournment request form to help parties
NCAT's Consumer and Commercial Division has developed a new PDF-fillable form to help parties request an adjournment (8 February 2019).  More...

Online Court – Supreme Court Possession List
The Online Court commenced on 6 February 2019 for matters in the Common Law Division Possession List. All defended matters will be eligible for the Online Court unless the registrar otherwise directs.  More...

ICAC: Operation Gerda witness list - Week two
Witness list for the Operation Gerda public inquiry, week commencing Monday 18 February 2019. Please note that witness lists are subject to change (15 February 2019).  More...

ICAC to hold public inquiry into allegations concerning University of Sydney and contract security services providers
A public inquiry commenced on Monday 11 February as part of an investigation it is conducting into allegations concerning the University of Sydney, its contracted security services provider Sydney Night Patrol & Inquiry Co Pty Ltd (SNP Security) and SNP Security’s subcontractor, S International Group Pty Ltd (SIG) (Operation Gerda).  More...

Practice and procedure: New rule for indexation of amounts under the Uniform Law
The Legal Profession Uniform General Amendment (Indexation) Rule 2019, made by the Legal Services Council pursuant to the Legal Profession Uniform Law, was published on the Legislation NSW website on 25 January 2019. The new rule provides the formula for indexation of amounts pursuant to s 471 Legal Profession Uniform Law, and commences on 1 July 2019.

IPC Reminder: 2018-19 Report on the operation of the GIPA Act
Under the GIPA Act and the GIPA Regulation, agencies are required to report annually on their obligations. The 2018-19 annual report is currently being prepared and is due to be tabled in Parliament.

Published - articles, papers, reports

Explainer: Workplace monitoring and surveillance
Alexandra Mateescu, Aiha Nguyen; Data & Society Research Institute: 6 February 2019
This explainer identifies four current trends in workplace monitoring and surveillance: prediction and flagging tools; biometrics and health data; remote monitoring and time-tracking; and gamification and algorithmic management. 

Filicide offenders
Thea Brown, Samantha Bricknell, Willow Bryant, Samantha Lyneham, Danielle Tyson, Paula Fernandez Arias; Australian Institute of Criminology: 06 February 2019
This paper describes offenders charged with the murder or manslaughter of their child(ren) in Australia between 2000–01 and 2011–12 to examine the prevalence of risk factors documented in the literature among custodial parents, non-custodial parents and step-parents.

OAICnet
For the latest news about our activities, publications and other relevant information. The first issue for 2019 is available here

Cases

Unions NSW v New South Wales [2019] HCA 1
Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(10) of Electoral Funding Act 2018 (NSW) ("EF Act") substantially reduced cap on electoral expenditure applicable to third-party campaigners from cap applicable under previous legislation – where third-party campaigners subject to substantially lower cap than political parties – where s 35 of EF Act prohibits third-party campaigner from acting in concert with another person to incur electoral expenditure exceeding cap – where preparatory materials to EF Act recommended reduction in cap for various reasons, including that third parties should not be able to "drown out" political parties, which should have a "privileged position" in election campaigns – where subsequent parliamentary committee report recommended that, before reducing cap, government consider whether proposed reduced cap would enable third-party campaigners reasonably to present their case – where no evidence that such consideration was undertaken – whether s 29(10) enacted for purpose compatible with maintenance of constitutionally prescribed system of representative government – whether s 29(10) necessary to achieve that purpose – whether necessary to decide validity of s 35.
Constitution, ss 7, 24.

DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39
ADMINISTRATIVE LAW – Privacy – exemption – educative and administrative – exemption by other law – no error of law. 

Zonnevylle v Minister for Education [2019] NSWCATAD 28
ADMINISTRATIVE LAW – Government information – offences – jurisdiction – reviewable decision - reasonableness of searches.  

Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 26
ADMINISTRATIVE LAW – Where respondent refused application for packaged liquor licence – assessment of overall social impact of granting the licence – whether that impact will not be will not be detrimental to the well-being of the local or broader community. 

Knightsbridge North Lawyers Pty Ltd v State of New South Wales (No 2) [2019] NSWSC 45
ADMINISTRATIVE LAW – Judicial review – whether appointments of the Chief Commissioner and Commissioners of ICAC invalid – s 64A Independent Commission Against Corruption Act 1988 (NSW) – consequence of failing to make a written referral of the appointment of the Chief Commissioner to Parliamentary Joint Committee after Independent Commission Against Corruption Amendment Act 2016 (NSW) came into force – whether s 64A required Joint Committee to consider referred appointments for at least a day before making and communicating its decision and appointments being made – consequence of consultation required by s 5(2) of the Independent Commission Against Corruption Amendment Act being undertaken before Chief Commissioner appointed – appointments valid - application dismissed – costs.
STATUTORY INTERPRETATION - Transitional provisions – whether clause 19A of the Amendment (Commissioners) Regulation 2017 (NSW) valid – whether clause 19A “of a savings or transitional nature” – effect of s 26 of the Interpretation Act 1987 (NSW) – regulation valid.
EVIDENCE — Relevance – opinion required by s 7(c) of the Subordinate Legislation Act 1995 (NSW) – presumption of validity – s 45 Interpretation Act and s 9(1) Subordinate Legislation Act – opinion not relevant.
EVIDENCE — Privileges — client legal privilege – whether opinion required by s 7(c) of the Subordinate Legislation Act 1995 (NSW) privileged under s 118 of the Evidence Act 1995 – whether the State was a client of the Attorney or Parliamentary Counsel who gave the opinion – opinion unlikely to be privileged. 

Webber v Racing NSW [2019] NSWSC 46
ADMINISTRATIVE LAW – Judicial review – grounds of review – decision by Racing NSW refusing to renew a trainer’s licence to an experienced thoroughbred trainer – review of licence renewal application prompted by concerns stemming from workers compensation proceedings against the same entity as authorised workers compensation insurer – failure to disclose internal material adverse to plaintiff including material concerning workers compensation claims – late concession by decision-maker that the decision entailed denial of procedural fairness – whether necessary or appropriate to determine remaining grounds of review – where decision no longer operative at time of hearing – utility of relief sought – discretion to grant declaratory relief – impact of decision on plaintiff’s reputation and future applications for a trainer’s licence.  

Legislation

Proclamations commencing Acts

Justice Legislation Amendment Act (No 3) 2018 No 87 (2019-70) — published LW 15 February 2019

Regulations and other miscellaneous instruments

Crimes (Administration of Sentences) Amendment (Parole Supervision of Serious Sex Offenders) Regulation 2019 (2019-69) — published LW 13 February 2019

Electoral Funding Amendment (Savings and Transitional) Regulation 2019 (2019-58) — published LW 8 February 2019

NSW Government Bulletin editor:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Other contacts:
Dispute Resolution, Inquiries and Administrative Law
Greg Wrobel, Partner 
T: +61 2 8083 0411 
E: greg.wrobel@holdingredlich.com

Bede Haines, Special Counsel 
T: +61 2 8083 0447 
E: bede.haines@holdingredlich.com

Workplace Relations & Safety
Michael Selinger, Partner 
T: +61 2 8083 0430 
E: michael.selinger@holdingredlich.com

Privacy & Data Protection
Lyn Nicholson, General Counsel 
T: +61 2 8083 0463 
E: lyn.nicholson@holdingredlich.com

Planning, Property & Environment
Robina Kidd, Partner 
T: +61 2 8083 0454 
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner 
T: +61 2 8083 0462 
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner 
T: +61 2 8083 0461 
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Lindsay McGregor, Partner
T: +61 2 8083 0459 
E: Lindsay.McGregor@holdingredlich.com

Alexander McNutt, Special Counsel 
T: +61 2 8083 0495 
E: Alexander.McNutt@holdingredlich.com

Peter Holt, Special Counsel 
T: +61 2 8083 0421 
E: peter.holt@holdingredlich.com

Construction and Infrastructure (Projects and Procurement)
Scott Alden, Partner 
T: +61 2 8083 0419 
E: scott.alden@holdingredlich.com

Disclaimer
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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Christine Jones

Published by Christine Jones, Julia Gitonga

Share this