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Is Official Inducement A Defence?

There is a whole range of circumstances where a person may seek out and be given advice by public officials, be they local council employees, police officers, or other government employees. From time to time this advice, whilst given in good faith, may in fact be legally inaccurate or incomplete. For example, a town planner at a local council might mistakenly tell a resident that they are entitled to make modifications to their home without first obtaining development consent or other formal approval. Another situation might be where a customer service officer at Centrelink incorrectly explains an individual’s specific reporting obligations.

In acting directly in response to such advice from a government official, if a person unknowingly commits a criminal offence, it only seems fair to expect that their good faith reliance on the advice would be a complete defence to any criminal charges that are subsequently brought against that person. Unfortunately, this is not the case in New South Wales, as confirmed in the recent decision of Environment Protection Authority v Unomedical Pty Limited (No 3) [2010] NSWLEC 198. Following on from the High Court of Australia’s judgment in Ostrowski v Palmer [2004] HCA 30, this decision of the Land and Environment Court of NSW confirms that courts will take a very strict approach and that because such an error falls into the category of “mistake of law” it cannot provide a defence.

If you’ve been charged with an offence in circumstances where you believe you have acted in good faith and relying on advice given to you, depending on the circumstances of the particular offence, there may be strong grounds to argue that the court should dismiss your matter pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. The courts have recognized that, whilst not amounting to a complete defence, circumstances of official inducement are relevant considerations in determining the appropriate sentence and provide a basis for leniency (see for example, Environment Protection Authority v Fletcher (2001) 114 LGERA 187).

If you’re facing a situation where you believe you have been given some incorrect advice from a public official and are concerned about possible further action, it is important to seek specialist legal assistance as soon as possible to avoid criminal charges being brought. Contact the expert team at Armstrong Legal to make an appointment.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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