NSW Government Bulletin - 22 May 2013

Recent developments in public law and government in NSW

Welcome to the inaugural edition of our Government bulletin. In this edition we see that the High Court will shortly consider whether a distinction should be drawn between personal and business activities while employees are travelling for work, following a grant of special leave by Justices Hayne and Gageler, in a case that is likely to cause both public and private sector employers to examine their workplace policies regarding conduct while travelling for work. Closer to home we see the NSW Government taking steps to exempt Councils from privacy laws following the decision of the AAT in SF v Shoalhaven City Council, dealing with the Privacy and Personal Information Protection Act 1998 (NSW), where the Council was effectively ordered to turn off its CCTV cameras which breached the privacy of a resident. In a case which overruled a 1924 decision of the Court, the High Court has also considered proof of the tort of malicious prosecution in a case where the underlying criminal prosecution was terminated by an order of the DPP that no further proceedings be taken against the accused under s.7(2)b of the DPP Act 1986 (NSW).

In the media

Roseanne Beckett v the State of New South Wales [2013] HCA 17
The High Court of Australia has handed down a landmark decision overruling a previous High Court decision from nine decades ago. In its decision in Roseanne Beckett v the State of New South Wales [2013] HCA 17, the High Court held that the previous decision in Davies v Gell (1924) 35 CLR 275 should not be followed in this instance. Beckett v New South Wales [2013] HCA 17 (8 May 2013) More...

Public servant sex compo case heads to High Court
Comcare is challenging that, asking the High Court to clarify whether the Federal Court's ruling was sufficient in determining what falls within the course of employment (10 May 2013) More...

Mid north coast welcomes CCTV exemption
A state government move to continue using closed circuit television (CCTV) surveillance for crime prevention has been given the thumbs-up on the mid north coast. Last week a local council was forced to turn off its CCTV cameras after a ruling by the Administrative Appeals Tribunal over a privacy breach (09 May 2013) More...

Loophole closed to allow CCTV camera use
The New South Wales Government is introducing exemptions to privacy laws to ensure that local councils can continue to use CCTV cameras in public places (07 May 2013) More...

BLOG: CCTV decision a blow to crime-fighting
The decision of the NSW Administrative Decisions Tribunal (ADT) that Shoalhaven City Council's use of closed circuit television (CCTV) footage for ''law enforcement'' purposes breaches privacy laws has resulted in a serious precedent which will have widespread implications for local government across NSW if left unchecked (06 May 2013) More...

Allow due process' in Singleton-Waterhouse stoush
Racing New South Wales says a judicial inquiry into the stoush between millionaire businessman John Singleton and the Waterhouse family would be a gross overreaction (29 April 2013) More...

Barr to oversee NSW Crime Commission
Justice Graham Barr QC has been appointed as the first inspector to oversee the NSW Crime Commission More...

Published – articles, papers, reports

Is the giving of reasons for administrative decisions a question of natural justice?
Author: Justice Chris Maxwell
This article examines the doctrinal divergence between Australia and the United Kingdom and suggests that, given the continuing importance of the question, it would be timely for the High Court to revisit the decision in Osmond and the analysis on which it was founded. (2013) 20 AJ Admin L 76

In practice and courts

High Court - New Practice Direction
The High Court has released Practice Direction No 1 of 2013 - Authorities (1 May 2013). Applications for leave or special leave to appeal and applications for removal (other than applications for leave or special leave referred to an enlarged Court for hearing as if on appeal) pursuant to s40 of the Judiciary Act 1903 (01 May 2013) More...

COAT National Conference 2013 - Effective Communication for Tribunals
The COAT National Conference co-hosted by COAT and AIJA will be held at the Novotel in Brisbane from 6 - 7 June 2013. Under its theme, Effective Communication for Tribunals, the 2013 Conference will explore the different ways in which effective communication can take place in a tribunal setting (May 2013) http://www.coat.gov.au/events or Effective Communication for Tribunals, 6-7 June 2013, BRISBANE

Cases

ML v Australian Securities and Investments Commission [2013] NSWCA 109
ADMINISTRATIVE LAW - judicial review - jurisdiction of State courts - where Commonwealth authority party to proceedings - where State court exercising federal jurisdiction - where no Commonwealth law conferred such federal jurisdiction - whether s 9 Administrative Decisions (Judicial Review) Act 1977 (Cth) excludes jurisdiction - where s 9 subject to s 1337B(3) Corporations Act 2001 (Cth) - where s 1337H(3) requires State Court to transfer s 1337B(3) proceedings to Federal Court unless related to other proceedings pending in a State court - where no such proceedings pending
CONSTITUTIONAL LAW - judicial review - jurisdiction of State courts - whether State court has jurisdiction to prevent Companies Auditors and Liquidators Disciplinary Board exercising powers under Commonwealth law - where the Board is a Commonwealth authority - conferral of jurisdiction under Judiciary Act 1903 (Cth) s 39(2) - whether s 9 Administrative Decisions (Judicial Review) Act 1977 (Cth) excludes jurisdiction - whether s 23 Supreme Court Act 1970 (NSW) empowers State court to prevent Board exercising powers under Commonwealth Law
PROCEDURE - civil - whether stay should be granted in respect of disciplinary proceedings - commencement of criminal proceedings against applicant possible but no criminal charges laid - Board empowered to exercise powers even where conduct might amount to an offence - public interest in prompt resolution of disciplinary proceedings
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 9
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Judiciary Act 1903 (Cth), ss 39, 68, 79, 80 More...

People with Disability Australia Incorporated v The Honourable Andrew Constance Minister for Disability Services [2013] NSWSC 467
PROCEDURE - pleading - Points of Claim - novel claim - legislative duty on Minister - plaintiff seeks to enforce duty - disclaimer of reliance on administrative law remedies - need to plead material facts - jurisdictional basis for the claim - need for pleading to relate facts to basis of claim More...

Purnell v Pittendridge and Anor [2013] NSWSC 463
ADMINISTRATIVE LAW - claim for prerogative relief - decision of Review Panel under s.63 Motor Accidents Compensation Act 1999 - whether jurisdictional error or error of law on the face of the record - whether denial of procedural fairness - whether failure to give reasons as required by law - grounds for relief not established - Amended Summons dismissed with costs More...

SF v Shoalhaven City Council [2013] NSWADT 94
Privacy - personal information - information protection principle - Collection - lawful purpose - relevant to purpose - excessive - retention and security - law enforcement purpose
Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998

AFC v The Sydney Children's Hospital Specialty Network (Randwick and Westmead) (No 2) [2013] NSWADT 99
Privacy and Personal Information Protection - meaning of personal information and health information - scope of review - Privacy and Personal Information Protection Act 1998 More...

Summers v Director of Housing [2013] VSC 233
ADMINISTRATIVE LAW - Administrative Law Act - Decision of Medical Panel under Wrongs Act - Reasons for determination published - Request for reasons - Application for review for jurisdictional error and for error on face of reasons as published - Ancillary application for review for inadequacy of reasons - Inadequacy of reason per se not a ground of review - Administrative Law Act 1978 , s 3, 4 and 8

AEZ v Commissioner of Police, NSW Police Force (No 2) [2013] NSWADT 91
Administrative review – freedom of information – exempt documents – documents concerning the operations of agencies More...

Patsalis v Attorney General (NSW) [2013] NSWCA 98
ADMINISTRATIVE LAW - Judicial review - Whether proceedings for prerogative relief against non-judicial decision of a Supreme Court judge properly commenced in the Court of Appeal More...

Terzic v Registrar of Births, Deaths and Marriages [2013] NSWADT 82
MERITS REVIEW - Decision of Registrar of Births, Deaths and Marriages not to register a change of name on a fourth application - Meaning of exceptions to restrictions on registering name changes - No inflexible rule that name cannot be registered on a fourth or subsequent occasion if the reason for the application is personal preference - Fresh evidence justifies name change More...

Duncan v The Honourable David Andrew Ipp [2013] NSWSC 314
ADMINISTRATIVE LAW - Natural justice - Rule against bias - Apprehended bias - Test for - Actions of Commissioner of Independent Commission Against Corruption in course of a public inquiry - Bias by prejudgment - Public inquiry by Independent Commission Against Corruption into granting of Mining Exploration Leases - Contact between Commissioner and Departments of Government - Provision of legal advice by Commissioner to Departments of Government - Request by Commissioner that project approval not be granted until report made by Commission - Statements by Commissioner that no factual findings yet made - Application for injunction against Commissioner by potential beneficiary if Mining Lease granted More...

Colefax v Department of Education and Communities (NSW) [2013] NSWADT 75
ADMINISTATIVE LAW - Government information - public access - Reasonable and necessary search for information - Adequacy of - Client legal privilege More...

Legislation

NSW

Regulations and other statutory instruments
Allocation of the Administration of Acts 2013 (No 1—Amendment) (2013-186) — published LW 3 May 2013

Acts assented to
Powers of Attorney Amendment Act 2013 No 23 — Assented to 7 May 2013
For the full text of Bills, and details on the passage of Bills, see Bills.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.