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:

  • act in accordance with their relevant delegation(s)
  • strictly comply with the statutory requirements relevant to the exercise of investigative functions.

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 [2019] 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 ROI was a form of “required” questioning for the purposes of the relevant powers in the EPAA.[1] While it was the Accused who initially suggested the meeting at which the ROI occurred, the answering of the questions put to him by the Council officer on that day was found to have been “required” for the purpose of s 119K(1) (now s 9.31(3)) of the EPAA
  • the Council was therefore required to give the warning in s 119S(3)(b) (now 9.31(3)(b)). Its failure to do so rendered the ROI inadmissible, as a result of the operation of sub-section (3).

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.

Lessons learnt

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.

[1] Former s 119K (now s 9.23) of the EPAA sets out the powers of “investigation officers” to require answers and record evidence.

In the media

Health privacy gets its own guide The Office of the Australian Information Commissioner (OAIC) has released a new guide to health privacy to help keep patients’ personal information safe. The guide brings together a wide range of OAIC advice for all health service providers covered by the Privacy Act 1988 (10 October 2019). More...

'Robodebt’ practices are flawed and causing harm, ALA tells senate committee Centrelink’s Automatic Debt Raising and Recovery System, known as ‘robodebt’, is flawed and is causing serious harm in the community, the Australian Lawyers Alliance told the Senate Community Affairs Committee inquiry into the Centrelink Compliance Program (09 October 2019). More...

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The NSW Information Commissioner Right to Know Week NSW 2019 The NSW Information Commissioner released the results of the NSW Community Attitudes research to Government Information and launches a Citizen Checklist in Right to Know Week NSW 2019 (02 October 2019). More...

HRLC: Attorney-General’s announcement provides cold comfort on press freedom Journalists and whistleblowers will continue to face prosecution and jail time for revealing government misconduct and abuse, despite the Attorney-General’s announcement, warned the Human Rights Law Centre (01 October 2019). More...

In practice and courts

Administrative Law – Practice Support The NSW Court of Appeal has published a new resource for practitioners on administrative law (October 2019). More...

NSW Fair Trading The Building Professionals Board's website will permanently close from 2 October, and visitors will be redirected to the NSW Fair Trading website. You’re encouraged to visit the certifier section of the NSW Fair Trading website and update any weblinks and bookmarks. The website closure is part of the Board’s integration into NSW Fair Trading.

NSW IPC checklist: Tips for framing your information access application The released checklist includes key information that is often overlooked by applicants and can potentially cause their application to be rejected specifically due to an unreasonable and substantial diversion of resources for the agency (02 October 2019). More...

Published - articles, papers, reports

Cabinet Handbook – 13th edition Department of the Prime Minister and Cabinet (Australia): 08 October 2019 This handbook is designed to ensure that the Cabinet observes conventions and principles and fulfils its central purpose of informed decision-making. More...

The Australian Academy of the Humanities submission to the Senate Legal and Constitutional Affairs Reference Committee Inquiry into Nationhood, National Identity and Democracy; Australian Academy of the Humanities: 01 October 2019 This resource is the Australian Academy of the Humanities submission to the Senate Legal and Constitutional Affairs Reference Committee Inquiry into Nationhood, National Identity and Democracy. More...

DASSH response to the Parliamentary Inquiry into Nationhood, National Identity and Democracy (2019) Australasian Council of Deans of Arts, Social Sciences and Humanities: 30 September 2019 This response will focus on the role of HASS education in promoting, strengthening and securing the ongoing stability of democracy and democratic values in the Australian nation. More...

Legal framework for Defence administrative inquiries into a 'matter concerning the Defence Force': A quick guide APH Law and Bills Digest Section: 02 October 2019 This paper sets out the four different methods of conducting a general administrative inquiry into ‘a matter concerning the Defence Force’. The first two methods are internal inquiries used by, and subject to, the ordinary chain of command. The last two methods are independent inquiries external to the ordinary chain of command. More...


Paul Farrell and Department of Home Affairs (No 6) [2019] 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) [2019] 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

Taylor v Department of Health [2019] FCA 1588 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

Burns v Gaynor (No. 2) [2019] NSWDC 552 TORT – defamation – remedies for Facebook publications – plaintiff brings proceedings for defamation (in the District Court) and for remedies under the Anti-Discrimination Act 1977 (NSW) (in the NCAT) against a Facebook account holder the first defendant) and against the second defendant for his part of the publication on the first defendant’s Facebook page – publication pleaded as being downloaded by four of the other participants in the Facebook debate – plaintiff obtains damages award in the NCAT and settles his claim in the defamation proceedings against the first defendant, who was the Facebook account holder – remaining defendant seeks dismissal of the claim as an abuse of process – plaintiff seeks summary dismissal of the defence – whether action liable to be dismissed as an abuse of process on the grounds of proportionality –whether multiple proceedings for different causes of action arising from the same publication may amount to abuse of process – whether the court resources required to determine the claim will be out of all proportion to the interest at stake – trial issues may include consideration of overlapping heads of damage and s 38 Defamation Act issues – likelihood that damages awarded would be very small – proceedings dismissed on the principles of proportionality

Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146 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.

La Valette v Chambers-Grundy [2019] NSWSC 1355 CIVIL PROCEDURE – issue of notice to produce documents recording communications with overseas medical practitioners – whether merely a fishing expedition 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 [2019] NSWSC 1344 Dismissal of proceedings, Judicial Immunity, Witness Immunity, Police Officers as Defendants

Commandeur v Building Professionals Board [2019] NSWCATOD 152 ADMINISTRATIVE REVIEW – accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders

Fisher v Commissioner of Police, NSW Police Force [2019] NSWCATAD 205 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

DRO v South Coast Medical Aboriginal Corporation [2019] NSWCATAD 204 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

Ekila v Commissioner of Police, NSW Police Force [2019] NSWCATOD 150 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