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Appendix 6 Developments in ACLEI's operating environment

Developments in legislation or government policy can have a direct impact on ACLEI's jurisdiction, powers, procedures or practices. Significant changes which occurred in 2016–17 are set out here.

Legislative change affecting ACLEI

Law Enforcement Integrity Commissioner Regulations 2017

These regulations—which commenced on 25 March 2017—replace the Law Enforcement Integrity Commissioner Regulations 2006. A number of changes were made to improve the general operation of the regulations, including to:

  • simplify the structure and numbering of the regulations
  • provide additional clarification to the prescribed particulars to be included in the Annual Report
  • recognise the establishment of the New South Wales Law Enforcement Conduct Commission, and
  • revise the process for travel allowances to be paid to witnesses summonsed to attend a hearing.

Relevant decisions of courts and administrative tribunals

Case law informs the interpretation of legislation. Accordingly, ACLEI monitors relevant decisions of courts and tribunals to guide its administration of the LEIC Act and the use of powers. These decisions, and their effects, are summarised in the table below.

Citation

Relevance to ACLEI

Mentink v Minister for Justice (No 2) [2017] FCA 681

Reeves J dismissed an application for review of the Justice Minister's further decision in relation to an alleged "ACLEI corruption issue". The court rejected a number of attacks on the validity of the Minister's decision to take no further action on the basis that no such corruption issue was raised.

A v Maughan [2016] WASCA 128

Consideration of prosecution access to coerced interview by West Australian Crime and Corruption Commission. Copies of public examination records included in prosecution brief. Consideration of High Court decision in X7 v ACC. Prosecution notices were quashed.

Lazarus v Independent Commission Against Corruption [2017] NSWCA 37

New South Wales (NSW) Court of Appeal considered effect of provision validating past actions of the Independent Commission Against Corruption (ICAC) on pending appeals against conviction where accused person may have had a defence had those actions not been validated. The provisions validating past actions of ICAC were found to apply.

Macdonald v R; Maitland v R [2016] NSWCCA 306

NSW Court of Appeal considered the provision of an ICAC examination transcript to prosecutors (via a public database) before charges were laid. In dismissing appeals, the Court noted the stress placed on the "accusatorial principle" by public examination.

R v Obeid (No 12) [2016] NSWSC 1815

and

Obeid v R [2017] NSWCCA 221

Sentencing principles for the common law offence of misconduct in public office. Beech-Jones J considered maximum sentences for equivalent statutory offences, and a wide range of the accused's circumstances as well as the objective seriousness of the offending.

The second case (appeal against conviction and sentence dismissed) considered the term 'wilfullness', and NSW sentencing principles in the context of common law offences.

Pallier v NSW State Emergency Service [2016] NSWCATAD 293

Consideration of FOI access to investigation records. Analysis of risks in disclosure of information provided in a context of confidentiality or in relation to a sensitive matter.

F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42

Consideration of FOI access to investigation records and range of grounds for refusal.

F60XCX and Public Service Commission [2016] QICmr 29

Consideration of FOI access to records following Queensland Crime and Corruption Commission provision of information.

Edward Moses Obeid Snr -v- David Andrew Ipp [2016] NSWSC 1376

Considers extent of right to procedural fairness in a corruption investigation.

Atkinson v Independent Commission Against Corruption [2016] NSWCA 194

Application for variation of court order following review of ICAC decisions (applicant seeking declarations to nullify ICAC findings of corrupt conduct).

The application was dismissed with the NSW Court of Appeal finding that the orders made were appropriate.

Allchin v Police Integrity Commission [2017] NSWCATAD 219

FOI access to specific integrity testing records of former NSW Police Integrity Commission.

The respondent's internal decision to refuse production of documents was affirmed, with consideration given to sufficiency of searching and 'excluded information' under the NSW FOI legislation.

F v CDG [2017] QSC 111

Consideration of alleged contempt of Queensland Crime and Corruption Commission. Sentence of imprisonment for eight months for refusing to answer questions.

67IEWN and Queensland Health [2016] QICmr 40

The Queensland Assistant Information Commissioner affirmed the respondent's internal decision, in refusing FOI access to investigation records.

Consideration of 'exempt information'.

Commissioner of the Australian Federal Police v Wen & Ors [2017] VSC 391

Compulsory examination under Proceeds of Crime Act 2002 (Cth). Consideration of purpose, disclosure and effect on fair trial.