In the media
New pathway to guide Cootamundra-Gundagai Regional
Council de-amalgamation
The NSW Government has today salvaged the plan to
de-amalgamate Cootamundra-Gundagai Regional Council (CGRC). A new
plan to guide the establishment of two new sustainable local
government areas will be assessed by the public inquiry led by the
Boundaries Commission (3 October 2023). Read more
here.
NSW inquiry to hear from children forced into motels,
hotels due to shortage of foster carers
A special New South Wales inquiry will hear from
vulnerable children who are living in hotels, motels and caravan
parks due to an acute shortage of foster carers. Minister for
Families and Communities Kate Washington said the inquiry, to be
led by the Office of the NSW Advocate for Children and Young
People, would shine a light on the problem (24 September 2023).
Read more
here.
Building an innovation sector for New South Wales
The Minns Labor Government will work with the innovation
sector, leading experts including universities and business to
produce a blueprint to guide how to support the NSW innovation
sector. The Innovation Blueprint will be drafted alongside sector
leaders and experts to start innovation in new sectors including
energy, advanced manufacturing and agrifood and to enable new
technologies like artificial intelligence and robotics. Roundtable
discussions will help guide the Blueprint's development (22
September 2023). Read more
here.
NSW mayors from tourism hotspots eye Victoria's
Airbnb, short-stay accommodation levy
From 2025, holiday-goers across Victoria will be expected
to pay extra to help with funding the state-s social and affordable
housing by introducing a 7.5% levy on short-term rental properties.
A mayor from a holiday hotspot in New South Wales says the
"balancing act" between tourism and housing supply should
be carefully considered before a short-term rental levy is
introduced for platforms like Airbnb and Stayz. (21 September
2023). Read more
here.
Changes to Minns Government Ministry strengthens focus
on skills, jobs and regions
On 27 September 2023, NSW Premier Chris Minns announced
changes to the NSW Ministry with the aim of boosting the
government's focus on skills, domestic manufacturing and the
importance of TAFE to regional NSW. A new portfolio of Domestic
Manufacturing and Government Procurement will seek to drive the
return to domestic manufacturing and boost local jobs (27 September
2023). Read more
here.
In practice and courts
Civil and Administrative Tribunal Amendment Act
2023
The NSW Government has implemented recommendations arising
out of the Report of the Statutory Review of the Civil and
Administrative Tribunal Act 2023 which concluded minor and
technical changes to support the conduct of proceedings and
relating to the Occupational Division and Guardianship Division of
the NSW Civil and Administrative Tribunal (20 September 2023). Read
the Amendment Act here.
Read the second reading speech
here.
Publications
Final Report of the Royal Commission into Violence,
Abuse, Neglect and Exploitation of People with Disability
The Governor-General, the Honourable David Hurley AC DSC,
delivered the Final Report on 28 September 2023. Government will
table the report in the Australian Parliament at a later time. The
report will be available to the public on this website after the
tabling process is complete. The Royal Commission has made 222
recommendations and the Final Report consists of 12 volumes plus an
additional introductory volume. Click
here to access the Final Report volumes. Click here to view the
Royal Commission's "A brief
Guide to the Final Report".
Final Report of the Future Drought Fund
The Australian Government Productivity Commission's
final inquiry report examines the effectiveness, efficiency and
appropriateness of Part 3 of the Future Drought Fund Act 2013. The
report was handed to the Australian Government on 8 September 2023
(26 September 2023). Read more
here.
Working Future: The Australian Government's White
Paper on Jobs and Opportunities
On 25 September 2023, the Treasury published its
Employment White Paper. The paper says policymakers needs to
acknowledge the reality of underemployment and under-utilisation in
the economy, and the impact they've had on communities across
the country. The government says it plans to use the policy tools
available to remove barriers to work, to help Australians acquire
the skills they need, and to ensure people have secure jobs that
are fairly paid (25 September 2023). Read the Paper
here.
Cases
Harbourlights – Strata Plan 32515 v Chief Commissioner of
State Revenue [2023] NSWCATAP 265
TAXATION AND DUTIES – Parking Space Levy – exemption
– whether parking spaces 'set aside exclusively' for
exempt / non-exempt purposes – whether visitor parking spaces
in a residential complex can be said to be spaces that are set
aside exclusively for the purpose of parking of motor vehicles
'by' persons who reside on the premises within the meaning
of reg 7(1)(b) of the Parking Space Levy Regulation 2009 (NSW) and
reg 8(1)(b) of the Parking Space Levy Regulation 2019 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Interpretation
Act 1987 (NSW); Parking Space Levy Act 2009 (NSW); Parking Space
Levy Regulation 2009 (NSW); Parking Space Levy Regulation 2019
(NSW); Trade Practices Act 1974 (Cth).
The Trusteee For Good Time Holdings NSW Trust v The Council of
the City of Sydney [2023] NSWLEC 1572
DEVELOPMENT APPLICATION – demolition of part of a former
warehouse building and construction of a hotel including ancillary
uses – insufficient environmental planning grounds to justify
the exceedance of the height of buildings development standard
– the provisions in the Sydney Development Control Plan 2012
regarding warehouse buildings older than 50 years apply to the
existing building notwithstanding that the site is not identified
as a local heritage item – the proposal does not conserve the
significant elements of the part of the former warehouse on the
site.
Environmental Planning and Assessment Act 1979, ss 8.7, 8.15; Land
and Environment Court Act 1979, s 39; Sydney Local Environmental
Plan 2012, cll 4.6, 6.4, 6.21B, 6.21C, Sch 5.
Alves v State
Insurance Regulatory Authority [2023] NSWCA 232
ADMINISTRATIVE LAW – Judicial review – Jurisdictional
error – application for review of District Court decision
dismissing appeal against sentence imposed by Local Court –
where applicant pleaded guilty to charge of dishonestly obtaining
financial advantage by deception – where applicant claimed he
was criminalised for no reason – where leave to appeal
against conviction not sought – whether District Court
committed jurisdictional error in determining sentence
appeal.
Crimes Act 1900 (NSW), s 192E; Crimes (Appeal and Review) Act 2001
(NSW), ss 11, 12, 17, 20; Crimes (Sentencing Procedure) Act 1999
(NSW), ss 4, 5, 7, 73, 73A; District Court Act 1973 (NSW), s 176;
Supreme Court Act 1970 (NSW), s 69; Uniform Civil Procedure Rules
2005 (NSW), rr 42.1, 59.4.
Hamdan v
Commissioner for Fair Trading [2023] NSWCATOD 147
OCCUPATIONS – other occupations – electrical
contractors and electricians – whether the Applicant is a fit
and proper person to hold the licence.
Administrative Decisions Review Act 1997 (NSW) Home Building Act
1989 (NSW); Home Building Regulation 2014 (NSW).
Andrews v Transport for NSW [2023] NSWLEC 1568
COMPULSORY ACQUISITION – objection to the amount of
compensation offered by the Respondent – conciliation
conference – agreement between the parties –
orders.
Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55,
66; Land and Environment Court Act 1979, s 34.
Fire Brigades
Employees Union v Fire and Rescue NSW [2023] NSWCATAD
253|
ADMINISTRATIVE LAW – administrative review – Government
information – Whether reasonable searches were conducted
– absence of supporting evidence from the respondent –
whether summonses should be issued to officers and/or former
officers of the respondent – matter remitted to the
respondent for reconsideration.
Administrative Decisions Review Act 1997 (NSW); Government
Information (Public Access) Act 2009 (NSW).
Greyhound Welfare
and Integrity Commission v Bell [2023] NSWSC 1150
ADMINISTRATIVE LAW – JUDICIAL REVIEW – where greyhound
tested positive to prohibited substances after a race –
whether factual finding as to when the greyhound ingested the
prohibited substances was legally unreasonable – finding was
based on expert evidence – high threshold for establishing
legal unreasonableness or illogicality – not established
– whether Commission was denied procedural fairness in not
being on notice that the Tribunal would find the contamination
happened post-race – where finding not specifically advanced
by the parties – Commission was on notice and had the
opportunity to make submissions – whether Commission was on
notice that the Tribunal would accept expert evidence as to timing
but not contamination – no denial of procedural fairness
– whether penalty imposed was unreasonable or irrational
because it was manifestly inadequate – not established.
Greyhound Racing Act 2017 (NSW), ss 4, 55, 58(1), 59(1); Greyhound
Racing Rules 2022, rr 42(2), 83(2(a); Racing Appeals Tribunal Act
1983 (NSW), ss 5, 6, 15A, 16(1)(2), 17A(1)(2), 18; Racing Appeals
Tribunal Regulations 2015 (NSW), regs 9(1), 10; Supreme Court Act
1970 (NSW), s 69.
Independent Liquor
and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor
and Gaming Authority v Area Hotel UT Pty Ltd; Independent Liquor
and Gaming Authority v The Griffith Hotel Pty Ltd [2023] NSWCA
224
ADMINISTRATIVE LAW – gambling regulation – applications
to transfer or lease gaming machine entitlements –
applications to increase gaming machine thresholds –
conditions imposed on hotel licenses – whether declarations
as to construction of statute were appropriate – whether
order requiring grant of application was appropriate – scope
of discretions under ss 19, 25 and 34 of the Gaming Machines Act
2001 (NSW) – scope of discretion under s 53 of the Liquor Act
2007 (NSW) – whether s 53 of the Liquor Act provides power to
impose conditions on liquor licences relating to harm minimisation
concerns relating to gaming machines.
Casino Control Act 1992 (NSW); Community Gaming Act 2018 (NSW);
Gaming and Liquor Administration Act 2007 (NSW); Gaming Machines
Act 2001 (NSW); Gaming Machines Amendment Act 2008 (NSW); Gaming
Machines Amendment Bill 2008; Gaming Machines Regulation 2019
(NSW); Interpretation Act 1987 (NSW); Liquor Act 2007 (NSW);
Unlawful Gambling Act 1998 (NSW).
Regan v
Commissioner of Police (No 2) [2023] NSWIRComm 1097
EMPLOYMENT AND INDUSTRIAL LAW – appeal from two decisions
– application for leave to appeal –unfair dismissal
application – victimisation application – no error of
law identified – leave to appeal refused in both
appeals.
Industrial Relations Act 1996, ss 181, 187, 190A, 191; Police Act
1990 s 72 A.
Police
Association of New South Wales v Commissioner of Police, NSW Police
Force [2023] NSWIRComm 1095
EMPLOYMENT AND INDUSTRIAL LAW – Appeals – application
for leave to appeal – Commissioner at first instance
exercised discretion not to grant orders sought pursuant to ss 136
and 137 of Industrial Relations Act 1996 to prevent medical
retirement of police officer pursuant to s 94B of the Police Act
1990 – no practical utility in appeal – appeal raises
significant questions with implications for jurisprudence of
Commission – leave to appeal granted – relevance of
collective character of dispute in exercising discretion to grant
relief in industrial dispute proceedings – collective
character relevant to making dispute orders pursuant to s 137
– appeal dismissed.
Commonwealth of Australia Constitution Act; Industrial Relations
Act 1996 (NSW) ss 3, 6, 84, 89, 130, 132, 133, 134, 135, 136, 137,
139, 187, 188, 191, 193; Police Act 1990 (NSW) s 94B; Workers
Compensation Act 1998 (NSW); Workplace Injury Management and
Worker's Compensation Act 1998 (NSW) s 49; Workplace Relations
Act 1996 (Cth).
Fairfield
City Council v Bastow Civil Constructions Pty Ltd [2023] NSWSC
1143
STATUTORY INTERPRETATION – Impounding Act 1993 (NSW)
(repealed) – whether s 45(3) confers statutory right of
action – whether subsection creates exception to statutory
extinguishment of right of former owner to sue impounding authority
for damages for exercise of power of sale of impounded item.
TORTS – negligence – duty of care – public
authority – whether Civil Liability Act 2002 (NSW), 43A
engaged – whether liability based on exercise of special
statutory power.
TORTS – negligence – standard of care – Civil
Liability Act 2002 (NSW), s 43A(3) – whether no public
authority could properly consider pleaded acts and omissions a
reasonable exercise of its power – multiple failures to keep
records leading to sale of impounded vehicle.
TORTS – negligence – Civil Liability Act 2002 (NSW), s
43 – whether s 43 applies to actions in negligence.
Civil Liability Act 2022 (NSW), ss 40, 41, 43, 43A, 44; Civil
Liability Amendment Act 2003 (NSW); Impounding Act 1993 (NSW)
(repealed), ss 15, 16, 17, 18, 20, 23, 24, 25, 27, 45; Local Court
Act 2007 (NSW), ss 39, 40.
Ugur
v Commissioner of Police [2023] NSWCATAP 261
GOVERNMENT INFORMATION – whether in deciding to affirm the
"information not held" decision under s 58(1)(b) of the
Government Information (Public Access) Act, the Tribunal made a
decision without evidence.
PROCEDURAL FAIRNESS – apprehended bias – whether the
reason for decision given by the Tribunal gave rise to a reasonable
apprehension of bias.
PROCEDURAL FAIRNESS – adjournment – whether by
declining to grant the appellant's application for adjournment
of the hearing the appellant was denied procedural fairness.
EVIDENCE – no evidence – whether Tribunal made findings
of fact without evidence.
REASONS FOR DECISION – whether delay in making decision
resulted in a denial of procedural fairness.
REASONS FOR DECISION – whether reasons for decision were
adequate.
APPEAL – fresh evidence – whether the power conferred
by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to
deal with an appeal by way of a new hearing should be
exercised.
Administrative Decisions Review Act 1997 (NSW), ss 63, 65; Civil
and Administrative Tribunal Act 2013 (NSW), ss 38(2), 41, 62(3),
80, 81; Civil and Administrative Tribunal Rules 2014 (NSW), reg
25(4)(c); Government Information (Public Access) Act 2009 (NSW), ss
3, 4, 5, 9, 12, 13, 14, 53, 55, 58(1)(b), 74, 80, 86, 89, 93, 100,
105, 107, 108(3), Sch 1, cll 4, 7(b).
Environmental Protection Authority v Maules Creek Coal Pty Ltd
(No 2) [2023] NSWLEC 97
PRACTICE AND PROCEDURE – application to trial judge to
certify recusal decision as a proper one for determination on
appeal – whether recusal decision is an "interlocutory
judgment or order" within meaning of s 5F(3) of the Criminal
Appeal Act 1912 (NSW) – application for stay of proceedings
pending determination of appeal of recusal decision to the Court of
Criminal Appeal – applications dismissed.
Criminal Appeal Act 1912 (NSW) s 5F; Supreme Court Act 1970 (NSW) s
101.
Environmental
Protection Authority v Clarence Valley Metal Recyclers Pty Ltd
[2023] NSWLEC 96
APPEALS – defendant pleaded guilty in the Local Court to
three offences in breach of the Waste Avoidance and Resource
Recovery (Container Deposit Scheme) Regulation 2017 (the
Regulation) – guilty pleas entered at earliest opportunity
– offences arose out of the Defendant fraudulently claiming
refunds pursuant to the Regulation for containers for which refunds
had previously been claimed by others – defendant's
offending conduct found by the Local Court to be in the mid-range
– offences were committed for financial gain – penalty
of $15,000 imposed by the Local Court for each offence –
Prosecutor's appeal against sentences imposed –
Prosecutor complains Local Court sentencing process miscarried as
sentences were manifestly inadequate – held Local Court
sentencing process miscarried as sentences were manifestly
inadequate – prosecutor's appeals upheld –
appropriate to resentenced Defendant – sentencing limit of
$110,000 for each offence in the Local Court – no comparable
sentencing information available as these were the first offences
charged for breaches of the Regulation – appropriate starting
penalty for each offence of $72,000 – defendant entitled to
25% discount for early guilty pleas – prosecutor accepts that
all three offences arose from a single course of offending conduct
– appropriate to adjust the overall penalties to reflect
totality and accumulation of penalties to be imposed on the
Defendant – defendant resentenced – defendant ordered
to pay the Prosecutor's costs of the appeal as agreed or
assessed – prosecutor seeks moiety of penalties –
appropriate to order moiety of penalties (50%) to be paid to the
Prosecutor.
Corporations Act 2001 (Cth), s 198A(2); Crimes (Appeal and Review)
Act 2001, ss 42(2) and 48(1)(b); Crimes (Sentencing Procedure) Act
1999, ss 21A and 23; Criminal Procedure Act 1986, ss 257B and 257G;
Fines Act 1996, ss 6 and 122; Waste Avoidance and Resource Recovery
(Container Deposit Scheme) Regulation 2017.
Chalhoub
v Commissioner for Fair Trading [2023] NSWCATOD 142
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL
DECISION-MAKER – decision to refuse contractor licence
pursuant to the Home Building Act 1989 (NSW) – fit and proper
person.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Civil and Administrative
Tribunal Rules 2014 (NSW); Firearms Act 1996 (NSW); Home Building
Act 1989 (NSW).
Legislation
Acts compilation
Australian
Securities and Investments Commission Act 2001 30/09/2023
– Act No. 51 of 2001 as amended
Australian
Prudential Regulation Authority Act 1998 30/09/2023 – Act
No. 50 of 1998 as amended
International
Organisations (Privileges and Immunities) Act 1963 30/09/2023
– Act No. 50 of 1963 as amended
National
Consumer Credit Protection Act 2009 30/09/2023 – Act No.
134 of 2009 as amended
Foreign
Acquisitions and Takeovers Act 1975 30/09/2023 – Act No.
92 of 1975 as amended
Income
Tax Assessment Act 1997 29/09/2023 – Act No. 38 of 1997
as amended
Competition
and Consumer Act 2010 29/09/2023 – Act No. 51 of 1974 as
amended
Treasury
Laws Amendment (2023 Measures No. 3) Act 2023 28/09/2023
– Act No. 75 of 2023 as amended
Banking
Act 1959 28/09/2023 – Act No. 6 of 1959 as amended
Export
Control Act 2020 27/09/2023 – Act No. 12 of 2020 as
amended
Insurance
Act 1973 27/09/2023 – Act No. 76 of 1973 as amended
Superannuation
Industry (Supervision) Act 1993 27/09/2023 – Act No. 78
of 1993 as amended
Criminal
Code Act 1995 27/09/2023 – Act No. 12 of 1995 as
amended
Excise
Act 1901 27/09/2023 – Act No. 9 of 1901 as amended
Financial
Sector (Transfer and Restructure) Act 1999 27/09/2023 –
Act No. 45 of 1999 as amended
Corporations
(Aboriginal and Torres Strait Islander) Act 2006 26/09/2023
– Act No. 124 of 2006 as amended
Private
Health Insurance (Prudential Supervision) Act 2015 26/09/2023
– Act No. 85 of 2015 as amended
Payment
Systems and Netting Act 1998 26/09/2023 – Act No. 83 of
1993 as amended
Tax
Agent Services Act 2009 26/09/2023 – Act No. 13 of 2009
as amended
Safe
Work Australia Act 2008 26/09/2023 – Act No. 84 of 2008
as amended
Financial
Regulator Assessment Authority Act 2021 25/09/2023 – Act
No. 63 of 2021 as amended
Small
Superannuation Accounts Act 1995 25/09/2023 – Act No. 52
of 1995 as amended
Therapeutic
Goods Act 1989 22/09/2023 – Act No. 21 of 1990 as
amended
Financial
Sector Reform (Hayne Royal Commission Response – Protecting
Consumers (2019 Measures)) Act 2020
21/09/2023 – Act No. 65 of 2020 as amended
Commonwealth
Registers Act 2020 21/09/2023 – Act No. 65 of 2020 as
amended
NSW Legislation
Appropriation (Parliament) Act 2023 No 25 – assented to
27 September 2023
Sydney Olympic Park Authority Amendment (Hill Road Upgrade) Act
2023 No 20 – assented to 20 September 2023
Crimes Amendment (Corrupt Benefits for Trustees) Act 2023 No 21
– assented to 20 September 2023
Civil
and Administrative Tribunal Amendment Act No 22 –
assented to 20 September 2023
Explosive Amendment Act No 23 – assented to 20 September
2023
Bills Introduced by Government
Criminal Procedure Amendment (Child Sexual Offence Evidence) Bill
2023 – introduced LA 20 September 2023
Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Sustainable
Buildings) Regulation 2023 (SI 531) – published LW 22
September 2023
Parliamentary Remuneration Amendment Regulation (No 2) 2023 (SI
533) – published LW 22 September 2023
Environmental Planning Instruments
Warringah Local Environmental Plan 2011 (Amendment No 28) 2023
(EPI 539) – published LW 22 September 2023
State Environmental Planning Policy (Sustainable Buildings)
Amendment 2023 (EPI 537) – published LW 22 September
2023
Sydney Local Environmental Plan Amendment (Sirius Site) 2023
(EPI 538) – published LW 22 September 2023
Armidale Regional Local Environmental Plan 2012 (Amendment No
19) 2023 (EPI 534) – published LW 22 September 2023
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.