NSW Government Bulletin - 11 July 2018: Part 2 - Constitutional & Administrative Law

In the media

Part-time Commissioner appointed
On 29 June 2018, The Hon Christian Porter MP, Attorney-General for Australia, announced the appointment of Dr Andrew Bickerdike as a Part-time Commissioner to the ALRC Review of the Family Law System (29 June 2018). More...

AAT Appointments
The Government announces four reappointments and one new appointment to the Administrative Appeals Tribunal. Mr Matthew Groom has been appointed to the Tribunal as a full-time senior member for five years, commencing on 23 July 2018 (02 July 2018). More...

National Redress Scheme starts in NSW
NSW survivors of institutional child sexual abuse will be among the first in Australia to be able to seek redress under a new national scheme that begins today. The National Redress Scheme will be administered by the Commonwealth Department of Social Services and will run for 10 years (01 July 2018). More...

IPC publishes the Agency Information Guide Review Report
On 29 June 2018, Elizabeth Tydd (NSW Information Commissioner and Open Data Advocate) published the Agency Information Guide Review Report of the ten principal departments and the IPC, with the results demonstrating significant improvements in compliance levels by NSW principal departments (29 June 2018). More...

Targets for briefing female Barristers
The Turnbull Government will for the first time set all Commonwealth agencies specific targets to brief senior and junior female barristers from 1 July 2018. All Commonwealth entities are bound by the Legal Services Directions, which encourage the briefing of a broad range of barristers and, in particular women, based on their skill, experience and expertise (29 June 2018). More...

PS impersonation laws made tougher
New laws making it a criminal offence to impersonate a Commonwealth entity, company or service, including Government Agencies and Departments, have been passed by the Australian Parliament (25 June 2018). More...

In practice and courts

Consultations for Australia's second Open Government National Action Plan 2018-20
Final consultations are now open until 8 July. See the Phase Two: Draft Plan. In this second phase, from 25 June-8 July, a draft Plan has been released for comment. More...

OAIC: Commencement of the Australian Government Agencies Privacy Code
The Australian Government Agencies Privacy Code (the Code) came into effect on 1 July 2018, requiring Australian Government Agencies to move to a best practice approach to privacy governance across the APS, with the ongoing support of the Office of the Australian Information Commissioner (OAIC) (02 July 2018). More...

Deferred prosecution agreement scheme code of practice
Submissions close on Monday, 9 July 2018. The draft code provides guidance on the intended operation of the DPA scheme and outlines the DPA process for industry, from the point of entering into DPA negotiations to fulfilling the terms of a DPA. More...

Acting Australian Information Commissioner and acting Privacy Commissioner approves variations to the Privacy (Credit Reporting) Code 2014
On 29 May 2018, the acting Australian Information Commissioner and acting Privacy Commissioner approved a variation of the registered Privacy (Credit Reporting) Code 2014 Version 1.2 (CR Code Version 1.2). The variations are proposed to commence on 1 July 2018. More...

Human rights and technology
New challenges to our basic rights and freedoms in an age of big data, artificial intelligence and social media, will be explored by leaders in industry, government and academia at a landmark event in Sydney. The Australian Human Rights Commission's Human Rights and Technology conference will take place on 24 July 2018, at the Four Seasons Hotel in Sydney. More...

ALRC Discussion Paper: Class Action Proceedings and Third-Party Litigation Funders (DP 85)
The ALRC invites submissions in response to the proposals, questions and analysis in the Discussion Paper, which is available on the ALRC website. Submissions are due to the ALRC by 30 July 2018.

High Court of Australia
High Court of Australia Bulletin [2018] HCAB 05 (27 June 2018). More...

Changes to AAT application fees
From 1 July 2018 application fees in the Administrative Appeals Tribunal will increase. More...

AAT Bulletins 2018
Issue No. 25/2018, 2 July 2018
Issue No. 24/2018, 25 June 2018

OAIC Key dates
Australian Government Agencies Privacy Code - Commences 1 July 2018.

New South Wales

JUDCOM Updates
Equality before the Law Bench Book Update 12 published 29 June 2018.
Sexual Assault Trials Handbook Update 19 published 29 June 2018.

IPC Newsletter July 2018
The aim of the IPC Bulletin is to provide support and advice to public sector agencies, practitioners, interested parties from the private, government and university sectors, by publishing case notes and providing timely statutory updates that align with the IPC's administered legislation. More...

IPC: Agency Information Guide Review Report
the Agency Information Guide Review Report of the ten principal departments and the IPC, with the results demonstrating significant improvements in compliance levels by NSW principal departments, was released on 29 June 2018.

NCAT Fees and charges from 1 July 2018
NCAT's fees and charges for the filing of applications, appeals and other services will change on 1 July 2018. NCAT Fees More...

ICAC briefs with the DPP and prosecution outcomes
Tables summarising information about briefs that are with the DPP, and prosecution outcomes. Last updated 20 June 2018. More...

ICAC Operation Dasha public inquiry concerning former Canterbury City Council resumes 9 July
The ICAC's Operation Dasha public inquiry into allegations concerning the former Canterbury City Council resumed on Monday 9 July. More...

ICAC: Operation Dasha public inquiry witness list - week beginning 9 July 2018
Witness list for the Operation Dasha public inquiry into allegations concerning the former Canterbury City Council, week commencing Monday 9 July 2018. Please note that this list is subject to change. More...

ICAC briefs with the DPP and prosecution outcomes
Tables summarising information about briefs that are with the DPP, and prosecution outcomes. Last updated 29 June 2018. More...

Register now for the 12th National Investigations Symposium
Early bird registration is now open for the 12th National Investigations Symposium, to be held in Sydney this November. More...

COAT NSW Annual Conference
The 2018 Council of Australasian Tribunals (COAT) NSW Annual Conference will be held at the Pullman Sydney Hyde Park on 7 September 2018. To view the full conference program and to register, please visit the official Conference website. Early Bird Registration will be available until Friday, 13 July 2018.

Published – articles, papers, reports

Consumer Safeguards Review Part A — Redress and complaints handling: consultation paper
Department of Communications and the Arts (Australia): 05 July 2018
This consultation paper sets out the problems and complexities that consumers face when navigating current regulatory and institutional arrangements and proposes reforms to address these problems. More...

Digital delivery of government services
Senate Finance and Public Administration References Committee; Parliament of Australia: 27 June 2018
Digital transformation represents one of the best opportunities to deliver more to those who pay for government, those who work for government, and those who government works for. More...

Review of the operation of Schedule 5 to the Broadcasting Services Act 1992
Department of Communications, Information Technology and the Arts (Australia): 26 June 2018
This is the report of the Review of Schedule 5 to the Broadcasting Services Act 1992 (the Act), conducted by the Department of Communications, Information Technology and the Arts (the Department). Schedule 5 of the Act establishes the Online Content Co-regulatory Scheme (the Scheme), which commenced on 1 January 2000. More...

Cases

Blacktown City Council v Concato [2018] NSWSC 1039
ADMINISTRATIVE LAW – practice and procedure - stay of administrative action pending judicial review - source of power - discretionary considerations.

Lazarus v Independent Commission Against Corruption [2018] NSWSC 997
CIVIL PROCEDURE – summary – dismissal – no reasonable cause of action – abuse of process in the alternative – UCPR r.13.4 – removal of reports – civil penalty – compensation and damages for criminal act – statutory immunity – bad faith –whether false or misleading statements – exercise of power and official duties – validity of prosecutions – prior disposal of issue – protection from liability under the Independent Commission Against Corruption Act 1999 (NSW) – no breach of statutory duty – no claim in negligence – in any event no basis claim in negligence – statement of claim dismissed – costs.
The charges alleged misuse of requisition forms, "vendor maintenance forms" and "non-order vouchers", used at the Royal Hospital for Women and the Royal North Shore Hospital to support payments for goods and services.

Loussikian v University of Sydney [2018] NSWCATAD 140
Government information public access - refusal to deal with access application - unreasonable and substantial diversion of agency resources.

Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139
ADMINISTRATIVE LAW – application for access to government information – whether overriding public interest against disclosure by reason of legal professional privilege – whether public interest in favour of disclosure is outweighed by public interest in favour – whether disclosure would expose persons to risk of harm or of serious harassment or intimidation - whether reasonable searches conducted – whether processing charge reasonable – whether an officer has failed to exercise a function in good faith.

DCF v Life Without Barriers [2018] NSWCATAD 142
ADMINISTRATIVE LAW- administrative review jurisdiction of the Tribunal - order dispensing with a hearing – section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 - where no administratively reviewable decision - where the decision sought to be reviewed does not come within section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW).

Cairns v ANZ Banking Group Limited [2018] NSWCATAD 138
HUMAN RIGHTS - discrimination in provision of marketing services – both applicants of New Zealand nationality and origin – first respondent marketed second respondent's life insurance to first applicant - whether direct discrimination on grounds of race – whether indirect discrimination HUMAN RIGHTS - discrimination in provision of insurance services –second respondent issued life insurance policy to both applicants - exclusion clause enabled insurer to decline benefit unless insured held Australian citizenship or permanent residency visa - whether direct discrimination on grounds of race - whether indirect discrimination HUMAN RIGHTS - aiding and abetting – whether in marketing life insurance to the first applicant the first respondent aided or abetted the second respondent to discriminate directly or indirectly against him.

M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101
PRACTICE AND PROCEDURE – notice of motion – whether appropriate to hear issues raised as separate questions – where similar submissions would be made in hearing of another notice of motion in any event STATUTORY INTERPRETATION – whether amendments to the Environmental Planning and Assessment Act 1979 (NSW) have the effect of constituting a new statutory entity or continuing an existing entity – application of interpretive principles JOINDER – whether appropriate to join planning panel to Class 1 proceedings – where panel is the consent authority but decision is deemed to be made by Council – where panel has power to control and direct Council COSTS – costs sought in relation to conciliation conference – presumptive rule against costs in Class 1 proceedings – costs sought against non-party – where agreement reached in conciliation conference but planning panel exercised its power to control and direct Council.

Rogers v The Independent Liquor and Gaming Authority [2018] NSWSC 1014
ADMINISTRATIVE LAW – liquor licensing – extended trading authorisation varied by Authority – where plaintiffs contended lack of procedural fairness – where plaintiffs sought interlocutory order staying decision of authority – whether serious question to be tried – doubtful prospect of serious case – whether balance of convenience favours making of order – staffing and financial consequences unlikely to be particularly detrimental – application refused. ADMINISTRATIVE LAW – liquor licensing – jurisdiction of Civil and Administrative Tribunal under Gaming and Liquor Administration Act 2007 s.13A – where authority varied license – whether NCAT has jurisdiction to review decision to vary license made on Authority's own initiative – doubtful that decision made by Authority is beyond review – s.13A refers to person aggrieved "in relation to" an application – s.13A appears to encompass Authority's decision – unnecessary to decide at interlocutory stage.

Richard Rudd and Civil Aviation Safety Authority (Freedom of information) [2018] AICmr 56
Freedom of Information — Whether disclosure would have a substantial adverse effect on the management or assessment of personnel — Whether disclosure of personal information is unreasonable — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss.11A(5), 47E(c) and 47F.

Lee v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 101
ADMINISTRATIVE LAW – Home building – Supervisor certificate – Where respondent refused applicant's application for a supervisor certificate on grounds that he was not a fit and proper person – Where applicant had convictions for drug supply and possession committed about four years ago – Where applicant claimed to have been rehabilitated – Whether applicant had deliberately concealed criminal history on his application form - Whether a person may be fit and proper whilst still serving a sentence in the community.

Park v Transport for NSW (No 2) [2018] NSWCATAD 134
GIPA Act – Government information – access – confidential information – cabinet material – position Minister was taking – whether conclusive presumption of overriding public interest against disclosure - Cabinet information – special procedure for dealing with Cabinet information.

Commissioner of Corrective Services v Liristis [2018] NSWCA 143
APPEALS – jurisdiction exercised by trial judge unclear – whether primary judge purported to review administrative decision – scope of Court's judicial review jurisdiction – Supreme Court Act 1970 (NSW), s.69 CRIME – administration of prisons – prisoner applied for orders for access to personal laptop and printer/scanner while in custody –prisoner on remand awaiting trial – whether prisoner had directly enforceable "right to fair trial" or "right of access to courts" JURISDICTION – Supreme Court – inherent jurisdiction – scope of jurisdiction – defendant in District Court criminal proceedings commenced proceedings in Supreme Court – application for orders for access to personal laptop and printer/scanner while in custody – whether defendant had directly enforceable "right to fair trial" or "right of access to courts" – whether inherent jurisdiction supported positive orders binding third party to District Court criminal proceedings – Supreme Court Act 1970 (NSW), s.23 JURISDICTION – Supreme Court – supervisory jurisdiction – scope of jurisdiction to supervise ongoing District Court criminal proceedings – principle of restraint – Smith v Commissioner of Correctives Services [1978] 1 NSWLR 317, applied.

Manning v Bathurst Regional Council [2018] NSWCATAD 132
ADMINISTRATIVE LAW – government information – whether disclosure could reasonably be expected to diminish the competitive commercial value of information or prejudice any person's legitimate business, commercial, professional or financial interests – whether disclosure could reasonably be expected to enhance open discussion or Government accountability.

DEN v Benevolent Society [2018] NSWCATAD 131
ADMINISTRATIVE LAW- administratively reviewable decision – where decision to cancel authorised carer status and remove the responsibility for the daily care and control of children under the care of the Minister.

Cobar Shire Council v Harpley-Oeser [2018] NSWSC 964
ADMINISTRATIVE LAW – Judicial Review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether plaintiff entitled to jurisdictional relief in the form of certiorari quashing the decision of the Medical Appeal Panel – whether the Appeal Panel failed to properly apply criteria in paragraphs 1.36 and 2.5 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment – whether the Appeal Panel's assessment included chronic pain presentation – whether Appeal Panel erred by not measuring or commenting upon whether there was any muscle wasting – procedural fairness – whether Appeal Panel failed to give party an opportunity to be heard.

Legislation

New South Wales

Proclamations commencing Acts

Regulations and other miscellaneous instruments

Bills assented to

Modern Slavery Act 2018 No 30 — Assented to 27 June 2018.
Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 No 32 — Assented to 27 June 2018.
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33 — Assented to 27 June 2018.
Victims Rights and Support Amendment (Statutory Review) Act 2018 No 34 — Assented to 27 June 2018.

For the full text of Bills, and details on the passage of Bills, see Bills.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

Australia: NSW Government Bulletin - 11 July 2018: Part 2