Double jeopardy – Can this principle apply where a local councillor’s misconduct has been dealt with in criminal proceedings and occupational disciplinary proceedings are subsequently commenced?

On 5 July 2017, the NSW Civil and Administrative Tribunal (Tribunal) handed down its decision in Chief Executive of the Office of Local Government v Bagnall (No.1) [2017] NSWCATOD 106. This decision explored whether the Tribunal had jurisdiction to consider an application made by the Chief Executive of the Office of Local Government (the Applicant) under s 440J(2)(b)of the Local Government Act 1993 (the Act).

Section 440J of the Act sets out alternative powers the Applicant has to deal with allegations of misconduct made against a councillor. Pursuant to section 440J(2)(b) of the Act, the Applicant can instead of taking disciplinary action against a councillor, refer the matter to the Tribunal for consideration.

Factual background

The Respondent, a councillor of Tweed Shire Council (Council), was involved in an incident with another councillor at Council’s chambers. The Respondent faced three charges in the Local Court relating to the incident which were dealt with in that jurisdiction.

The other councillor involved in the incident subsequently lodged a complaint against the Respondent under the Council’s Model Code of Conduct (the Code) relating to the same conduct. The matter was ultimately referred to the Applicant, who approved the preparation of a departmental report into the conduct of the Respondent (the Report) and submitted the Report to the Tribunal, commencing the s 440J(2)(b) application.

Jurisdictional issue

The Respondent contended that the Tribunal lacked the jurisdiction to hear the application, relying on the provisions of the Procedures for the Administration of the Code (the Procedure) adopted by the Council. The Procedure stated that:

  • a complaint made under the Code may be referred to an external agency or body (e.g. to the Police, NSW Ombudsman, Independent Commission Against Corruption); and
  • that referral of the matter to an external body or agency shall finalise consideration of the matter under the Code, unless the Council is advised otherwise by the referral agency or body.

The Respondent’s contention was that the facts relevant to the matter had previously been referred to the Police and as there was no advice from the Police to the Council otherwise, the matter was therefore finalised. However, the Police involvement was not due to the Council referring the complaint.

Decision

The Tribunal held that it had jurisdiction to consider the application. This was for reasons including that if the Respondent’s arguments were accepted, any referral of the matter under complaint e.g. at a preliminary investigation level, prohibits and invalidates any further consideration or referral of the matter. That would include, prohibiting consideration and referral at the “departmental level”, or by the Applicant. The Tribunal held the Act and Procedure did not convey or intend this construction.

The Tribunal also considered the Respondent’s “no double jeopardy” claim for completeness, and dismissed it as irrelevant as the purpose and nature of criminal proceedings and sanctions are distinct from occupational disciplinary matters.

Editorial: Olivia Pasternak

 

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In the media

Community groups call for greater freedom to speak out
Australian governments must act now to safeguard and encourage vibrant debate on matters of public interest, 15 non-government organisations have said in a new report Defending Democracy, to be released today (05 July 2017).  More...

Statement by the Australian Information and Privacy Commissioner, Timothy Pilgrim, on personal information of Australian telecommunication customers
In light of the information provided, the OAIC considered that these allegations did not point to a failure on the part of the three providers to ensure reasonable steps are being taken to protect the personal information of Australian telecommunication customers at offshore call centres, and that no further regulatory action is warranted at this time (04 July 2017).  More...

National Firearms Amnesty officially commences today
The National Firearms Amnesty will commence today, giving Australians an opportunity to hand in unregistered and unwanted firearms and improve community safety (01 July 2017).  More...

Record funding begins for access to justice in NSW
Increased investment in access to justice from the NSW Government will start to flow to Community Legal Centres (CLCs) from 1 July ensuring more people around the state are able to access vital legal support (29 June 2017).  More...

Appointments to the Administrative Appeals Tribunal
The Attorney-General announces the appointment of the Hon Justice David Thomas as President of the Administrative Appeals Tribunal (AAT). Justice Thomas has also been appointed as a judge of the Federal Court (28 June 2017).  More...

New AHRC President; New Proposed Privacy Commissioner and Youth Koori Court in NSW
On 20 June 2017, there was an announcement by the Federal Attorney-General of the appointment of Emeritus Professor Rosalind Croucher AM as the next President of the Australian Human Rights Commission (AHRC) commencing her seven-year term on 30 July 2017. Additionally, the NSW Attorney-General has announced a proposed Privacy Commissioner appointment and additional funding for a Youth Koori Court in NSW (26 June 2017).  More...

NSW 2017 Community attitudes towards Privacy Report
The NSW Acting Privacy Commissioner, Dr Elizabeth Coombs, today released a summary report of a survey of attitudes of the NSW community towards privacy. Nearly two thirds (63%) of survey respondents do not think, do not know or are undecided if those in authority generally, are taking privacy seriously (27 June 2017).  More...

Extra Offender Management Service targets repeat offending causes
The Extra Offender Management Service (EOMS) that targets the underlying causes of repeat offending, including domestic violence offending, is available in five NSW locations as of 2 June 2017 (26 June 2017).  More...

In practice and courts

Commonwealth Ombudsman now handles complaints about VET FEE-HELP and VET Student Loans
The VET Student Loans Ombudsman function is operational and available to the public (01 July 2017).  More...

Family Court, FCC orders now all digital
As of 1 July, all orders from the Family Court and Federal Circuit Court will be signed and sealed electronically and available for download from comcourts.gov.au. Practitioners will need to register at this portal, link their firm and files, and set email notifications. More...

High Court of Australia
High Court of Australia Bulletin [2017] HCAB 05 (28 June 2017).  

Accountability and the Law 2017 Conference
The conference will be held on 17 August in Canberra by the Australia Institute.  More...

NDIS costs: Productivity Commission costs position paper, including NIIS comment
Released by the Productivity Commission’s NDIS Costs position paper, this it sets out preliminary conclusions and seeks feedback by 12 July 2017.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions:
Issue No. 27/2017, 03 July 2017
Issue No. 26/2017, 26 June 2017 

OAIC: Notifiable Data Breaches draft resources
Draft resources on the Notifiable Data Breaches (NDB) scheme have been published to assist organisations in understanding their compliance obligations from 22 February 2018. The OAIC is still in the process of developing resources about a number of other topics relating to the NDB scheme. These will be published on our website. Any comments on the draft resources are open until 14 July 2017.

OAIC: Data + Privacy Asia Pacific Conference 2017
Privacy and data protection regulators from across the Asia Pacific region will join Australian industry leaders and data experts for the Data + Privacy Asia Pacific Conference in Sydney on 12 July this year.  More...

AHRC: OPCAT submissions
The Human Rights Commissioner has released a consultation paper and a call for submissions on Australia’s implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The Federal Government intends to ratify OPCAT by December 2017. Parties wishing to respond to the OPCAT consultation paper should do so by 21 July 2017.

ANAO: Performance audit in-progress
Due to table: July 2017, the audit objective is to assess the effectiveness and efficiency of entities’ implementation of the Freedom of Information Act 1982.  More...

AIJA Court Media Officers’ Conference
The Conference will be held Thursday 31 August and Friday 1 September 2017 in Sydney.  More...

COAT National Registrars & Executive Officers Conference
Save the date! 20 October 2017 in Adelaide.  More...

Commonwealth Consultations
October 2017 - Closing date for comments to the FCA on the General Practice Notes.  More...

NSW

Fees and charges as at 1 July 2017
NCAT's fees and charges schedule for the filing of applications, appeals and other services change from 1 July 2017 (30 June 2017).  More...

Proposed Criminal Procedure Regulation 2017
The Department of Justice invites people who are interested in the proposed Criminal Procedure Regulation 2017 to tell us what they think. Submissions close 26 July 2017.  More...

ICAC:  Early bird discount registration are now open for the Australian Public Sector Anti-Corruption Conference
Register by 15 August 2017, to take advantage of the early bird discount, via the above link to the APSACC 2017 website.  More...

ICAC: Operation Tarlo public inquiry witness list
The Operation Tarlo public inquiry has adjourned until Wednesday, 12 July 2017. The witness list can be accessed at the above link, while transcripts for this inquiry are available at the quick link to the right of screen (21 June 2017).  More...

ICAC: Prosecution briefs with the DPP and outcomes
Last updated 06 July 2017.  More...

Victims' involvement in sentencing
The NSW Attorney General has asked us to conduct a review of victims' involvement in the sentencing process. The deadline for preliminary submissions is Monday 31 July 2017.  More...

Published – articles, papers, reports

Implementation of the Annual Performance Statements Requirements 2015–16
ANAO: 26 June 2017 - The objective of the audit was to examine the implementation of the annual performance statements requirements under the Public Governance, Performance and Accountability Act 2013 and the enhanced Commonwealth performance framework.  More...

Foreign political donations
e-brief 02/2017 June 2017: Chris Angus
This e-brief discusses current restrictions on political donations in NSW and other Australian jurisdictions in the light of recent media reports on donations from foreign and foreign-linked donors. It then outlines the means by which donors could bypass these restrictions, before briefly detailing the constitutional limitations to reform as a result of the implied freedom of political communication.  More...

Tradition versus research
Jenny Awad; Law Institute Journal July 2017
Irrespective of the limited evidence as to the fairness and efficacy of juries in the administration of justice, the recent High Court decision of Alqudsi v The Queen (Alqudsi) 4 has cemented the constitutional validity of trial by jury as a political and social institution.  More...

Sentencing Trends & Issues No 46 — Common offences in the NSW Local Court
Amanda Jamieson, Senior Research Officer (Legal) Brandi Baylock, Research Officer (Stastistics) Patrizia Poletti, Principal Research Officer (Statistics) Editor: Roslyn Cook: 07 July 2017
General findings about offender characteristics, the frequency  with which statutory, regulatory and common law offences come before the court, and their classification under the Australian and New Zealand Standard Offence Classification (ANZSOC) are discussed.  More...

Cases

'LW' and Department of Human Services (Freedom of information) [2017] AICmr 65
Freedom of Information — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 s 24A. 

'LV' and Department of Defence (Freedom of information) [2017] AICmr 64
Freedom of Information — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 s 24A.

Patrick Conheady and Australian Taxation Office (Freedom of information) [2017] AICmr 63
Freedom of Information — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E(d).

The Australian and Department of Immigration and Border Protection (Freedom of information) [2017] AICmr 62
Freedom of 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 is unreasonable — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 47E(d) and 47F.

'LU' and Department of Defence (Privacy) [2017] AICmr 61
Privacy — Privacy Act — Information Privacy Principles — Privacy Act 1988 (Cth) s 52 — IPP 4 — Data security failure — IPP 10 — Unauthorised use of sensitive personal information — Compensation awarded – Non-economic loss – Section 52(3) expenses awarded. 

'LS' and 'LT' (Privacy) [2017] AICmr 60
Privacy — Privacy Act 1988 (Cth) — s 52 — Australian Privacy Principles – APP 12 – Access to personal information – APP 12.3 —Serious threat to life, health or safety – Breach of APP 12.5 — Failure to consider steps (if any) to give access — Breach of 12.9 — Failure to give written reasons for refusal — Use of intermediary – Compensation awarded – non-economic loss – Aggravated damages not awarded.

Buttigieg and Comcare [2017] AATA 1002
PRACTICE AND PROCEDURE – whether application for confidentiality order to be disclosed to other party – s 38AA decision-maker has an ongoing requirement to lodge documents relevant to the review – document includes surveillance – legal professional privilege and public interest immunity still apply - the application itself is to be disclosed to other party or parties but not the document over which the confidentiality is sought – matter adjourned. The applicant, Mr Buttigieg, has applied for review of a decision made by the respondent, Comcare.

Chief Executive of the Office of Local Government v Bagnall (No.1) [2017] NSWCATOD 106
Local Government; disciplinary action against councillor; referral of matter to the Tribunal under s 440J (2) (b) of the Local Government Act. Preliminary issue as to whether Tribunal lacks jurisdiction to consider the matter on a proper construction of the Council’s Procedures for Administration of the Model Code of Conduct and the Local Government Act. Enforceability of the Procedures and whether binding on the Chief Executive. Double jeopardy. Determination that Tribunal has jurisdiction to hear the matter referred, on proper construction of the Procedures and the Act; and that the double jeopardy principle was not applicable.

Allchin v Police Integrity Commission [2017] NSWCATAD 219
GOVERNMENT INFORMATION – access application – adequacy of search – excluded information.  

Bev Butler and Commonwealth Scientific and Industrial Research Organisation (Freedom of information) [2017] AICmr 59
Freedom of Information — Refusal of access to documents — Whether documents are in respect of commercial activities — (CTH) Freedom of Information Act 1982 s 7(2). 

'LR' and Australian Federal Police (Freedom of information) [2017] AICmr 58
Freedom of Information — Whether material in documents irrelevant to the request — Whether reasonable steps taken to locate documents — Whether disclosure would prejudice lawful methods or procedures — Whether documents subject to legal professional privilege — 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 — (CTH) Freedom of Information Act 1982 ss 11A(5), 22, 24A, 37(2)(b), 42, 47E(d) and 47F.

David Griffiths and Department of Human Services (Freedom of information) [2017] AICmr 56
Freedom of Information — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 s 24A.

Tristan Masterson and the Murray-Darling Basin Authority (Freedom of information) [2017] AICmr 57
Freedom of Information — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E(d).

'LQ' and Department of Human Services (Freedom of information) [2017] AICmr 55
Freedom of Information — Whether disclosure of personal information is unreasonable — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47F.

Amanda Hay and Australian Bureau of Statistics (No. 2) (Freedom of information) [2017] AICmr 54
Freedom of Information — Whether disclosure would have a substantial adverse effect on the management or assessment of personnel — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E(c).

McKay v Transport for NSW [2017] NSWCATAD 212
Government information – cabinet information – reasonable grounds – cabinet submissions – dominant purpose – cabinet deliberations or decisions – minister’s position – parliamentary privilege – public interest considerations in favour of disclosure – public interest considerations against disclosure – confidentiality – breach of confidence – legitimate business, commercial, professional or financial interests – unfair advantage or disadvantage – correct and preferable decision. 

Zonnevylle v Department of Education [2017] NSWCATAD 214
ADMINISTRATIVE REVIEW - Government Information – refusal to deal – unreasonable and substantial diversion of resources - allegations of misconduct - request for referral to Minister – allegations of offences - jurisdiction PROCEDURAL FAIRNESS – application for disqualification.

Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210
Government Information (Public Access) – application for disclosure of CCTV footage of assaults on staff at hospitals – whether overriding public interest against disclosure – disclosure of personal information and health information – disclosure prejudicing the effective exercise of the agency’s functions - whether pixelation of faces and identifying marks would avoid concerns – impact on operations of hospitals if footage recording treatment of patients was released.

Miskelly v Transport for NSW [2017] NSWCATAD 207
Government Information (Public Access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – weight of evidence – cumulative effect of additional information - presumption in favour of disclosure not displaced.

Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206
GIPA ACT- Government Information – access – could reasonably be expected to - reveal personal information - prejudice a person’s legitimate business, commercial, professional or financial interests – reveal false or unsubstantiated allegations about a person that are defamatory – disclose personal information about a child that would not be in the best interests of the child to have disclosed - processing charges for dealing with an access application – organisation from which records sought not an agency under the GIPA Act – agency email address used to conduct business for the organisation.

Legislation

NSW

Proclamations commencing Acts

Statute Law (Miscellaneous Provisions) Act 2016 No 27
(2017-293) — published LW 28 June 2017.

Bills assented to

Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 No 25
— Assented to 27 June 2017.
Crimes Amendment (Intimate Images) Act 2017 No 29
— Assented to 27 June 2017.

For the full text of Bills, and details on the passage of Bills, see Bills.

Regulations and other miscellaneous instruments

Witness Protection Regulation 2017
(2017-346) — published LW 7 July 2017.
Administrative Arrangements (Administrative Changes—Inspector of Law Enforcement Conduct Commission) Order 2017
(2017-299) — published LW 30 June 2017.
Administrative Arrangements (Administrative Changes—Revenue NSW) Order 2017
(2017-300) — published LW 30 June 2017.
Civil and Administrative Tribunal Amendment (Fees) Regulation 2017
(2017-303) — published LW 30 June 2017.
Civil Procedure Amendment (Fees) Regulation 2017
(2017-304) — published LW 30 June 2017.
Criminal Procedure Amendment (Fees) Regulation 2017
(2017-305) — published LW 30 June 2017.
Jury Amendment (Daily Attendance Allowance) Regulation 2017
(2017-312) — published LW 30 June 2017.
Legal Profession Uniform Law Application Amendment (Fees) Regulation 2017
(2017-313) — published LW 30 June 2017.
Relationships Register Amendment (Corresponding Laws) Regulation 2017
(2017-314) — published LW 30 June 2017.


Editor:

Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
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