Viscariello v Legal Profession Conduct Commissioner

[2017] SASCFC 98

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Interrogate

Catchwords

1. Administrative Law
2. › Delegated authority
3. › Delegation of statutory powers
4. › Conflict of interest
5. › Whether delegation made without ministerial authorisation was unlawful
6. › Whether delegations fell within scope of authorisation
7. › Public Sector (Honesty and Accountability) Act 1995 (SA), s 17
8. › Legal Practitioners Act 1981 (SA), s 77
1. Administrative Law
2. › Declarations
3. › Discretion to grant declaratory relief
4. › Whether declaration of unlawfulness should be made
5. › Declaration tantamount to declaration of criminal guilt
6. › Utility of declaration where breach superseded by subsequent compliance
1. Statutes
2. › Acts of Parliament
3. › Statutory powers and duties
4. › Exercise
5. › Delegation of power conferred by Act
6. › Scope of delegation
7. › Whether terms of delegation exceeded scope of ministerial authorisation
1. Public Service
2. › Duties and offences in relation to office
3. › Conflict of interest
4. › Senior officials
5. › Meaning of 'action' in relation to a matter
6. › Whether preparatory steps constitute prohibited action
7. › Public Sector (Honesty and Accountability) Act 1995 (SA), s 17

Quick Take

Section 17 of the Public Sector (Honesty and Accountability) Act 1995 (SA) applies to the Legal Profession Conduct Commissioner as a 'senior official', requiring the Attorney-General's prior written authorisation before the Commissioner can delegate powers in relation to matters in which the Commissioner has a conflict of interest. Delegations must fall within the precise terms of the authorisation given. However, the court retains discretion to decline declaratory relief where a declaration of non-compliance would be tantamount to a declaration of criminal guilt and the person has not been heard in a personal capacity. The recent insertion of s 77(4) of the Legal Practitioners Act now exempts such delegations from s 17.

Case Details

Citation[2017] SASCFC 98

CourtSASCFC

JurisdictionSouth Australia

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Relies on16

2016NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public ProsecutionsHCA 33
2015Viscariello v Legal Profession Conduct CommissionerSASC 132
2015Isbester v Knox City CouncilHCA 20
2014Viscariello v MacksSASC 189
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