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In the media
NSW premier's department says government workers may
have to make big adjustments with return to office directive
Some NSW government workers who have been instructed to
return to the office have been told they might have to make some
big adjustments. Premier Chris Minns on Monday sent out a memo
ordering public service workers to work out of an office for at
least three days a week. Read more here.
Mines subsidence compensation changes improve safety and
help residents with damaged property
Property owners impacted by coal mine subsidence will get
stronger protection following the passage of new laws to provide
better support and boost transparency. The Coal Mine Subsidence
Compensation Fund lets responsible miners in NSW support any
residents impacted by current, historic or former mining activity.
Under the new laws, Subsidence Advisory NSW can provide residents
with temporary accommodation, payments for relocation costs and,
where necessary, direct people to evacuate in a mine subsidence
emergency (9 August 2024). Read more here.
First conviction of an owners corporation over
industrial gate fatality
The owners corporations of commercial premises have been
put on notice after SafeWork NSW successfully prosecuted an owners
corporation for failing to fix a faulty gate which killed a worker.
It is the first time an owners corporation of a strata scheme at an
industrial complex has been found guilty of this type of offence
under the Work Health and Safety Act NSW 2011 (7 August 2024). Read
more here.
Background check fees banned to ensure a fairer go for
renters
The Minns Labor Government will change the law to stop
renters being slugged with charges for background checks when
they're applying for a rental property. There are 2.2 million
renters in NSW, and they're increasingly being asked to pay for
their own background checks just to apply for a home. These
'optional' charges often come with the promise that
they'll increase an applicant's chances of securing a home.
The Minns Labor Government will change the law to make it clear
that renters cannot be charged for background checks (6 August
2024). Read more here.
NSW to take action this week to appoint independent
administrator for the CFMEU Construction and General Division
The NSW Government through the Minister for Industrial
Relations has today filed an application in the Industrial Court
seeking orders for the appointment of an administrator for the
Construction, Forestry, Mining and Energy Union (CFMEU) NSW Branch,
Construction and General Division. To remove any doubt about the
validity of the appointment and powers of the administrator, the
NSW Government will this week introduce a bill to Parliament amend
the Industrial Relations Act 1996 to provide for the appointment of
an administrator for the CFMEU NSW Branch, Construction and General
Division (5 August 2024). Read more here.
Nominations now open for local government
elections
Nominations for the 14 September local government
elections are opened and people across NSW are encouraged to put
their hand up to represent their community on local council. The
decisions councils make have a direct impact on people's
everyday lives. The state's councils manage $151 billion in
infrastructure like pools, libraries and roads and every year spend
$15 billion delivering local services. There are not any formal
qualifications needed to become a councillor, just a passion to
work alongside fellow councillors to achieve great outcomes for the
community (5 August 2024). Read more here.
Delivering a tougher environmental watchdog
The Minns Labor Government promised a tougher
environmental watchdog. It has delivered with the NSW Environment
Protection Authority (EPA) taking on 70 prosecutions last financial
year, with a success rate of 97% (3 August 2024). Read more here.
Publications
C2024-03 NSW Government Sector workplace presence
This Circular updates advice for Government Sector
agencies regarding workplace presence. Read more here.
APHTI Competency Framework
NSW Health has published a new competency framework, which
underpins the delivery of the NSW Aboriginal Population Health
Training Initiative through setting objective standards for
workplace learning. Importantly, the competency framework provides
a common unit of analysis to review and assess trainee learning
experiences across a range of work settings. The framework also
supports academic learning within the Master of Public Health by
facilitating the application of new knowledge and skills within the
workplace. The framework is designed to be flexible and recognises
that trainees work across a broad range of population health
issues, community groups and settings. (5 August 2024). Read more
here.
Law Council Update
In this edition, learn about the Law Council of
Australia's newly launched 'Access to Justice for All'
campaign, which aims to increase funding for Australia's legal
assistance sector. Dive into an opinion piece titled 'Shameful
as vulnerable being turned away from legal aid' by the Law
Council President. In addition, read updates on recent advocacy
work in relation to the inquiry into economic self-determination
and opportunities for First Nations peoples, and the Nature
Positive Bills (2 August 2024). Read more here.
Closing the Gap – Annual Data Compilation Report
July 2024
The Productivity Commission has released fourth Annual
Data Compilation Report to inform reporting on progress under the
National Agreement on Closing the Gap. The report tracks progress
towards the targets and indicators in the National Agreement on
Closing the Gap, shows that five of 19 targets are on track to be
met (31 July 2024). Read the report here.
Casebook July 2024: Investigations and
complaint-handling case studies
Casebook July 2024: Investigations and complaint-handling
case studies provides a summary of investigations conducted and a
sample of complaints handled by the NSW Ombudsman from 1 October
2023 to 30 June 2024. This is the first of what will be biannual
reports to feature case studies demonstrating how the NSW Ombudsman
holds agencies to account, and how we have achieved positive
outcomes for the people of NSW (30 July 2024). Access the
publication here.
Practice and Courts
Richard McHugh SC appointed as a Judge of Appeal of the
Supreme Court of NSW
Senior barrister Richard McHugh SC has been appointed as a
Judge of Appeal of the Supreme Court of NSW. Mr McHugh has
conducted many high-profile cases at first instance and on appeal,
across a broad range of areas in courts around the country and in
international arbitrations. Richard McHugh SC will be sworn in on
20 August 2024 (7 August 2024). Read more here.
John Catsanos SC appointed to NSW District Court
Leading barrister John Catsanos SC has been appointed a
judge of the District Court of NSW. Mr Catsanos has a strong track
record of providing independent, specialist advice and
representation to a range of clients over four decades in law, from
medical malpractice and injuries in public places, to car crashes
and workplace accidents. Mr Catsanos was sworn in on 5 August 2024
(1 August 2024). Read more here.
Transport Management and Accessibility Plan Guidelines
– Have Your Say
Transport for NSW is seeking feedback on the draft
Transport Management and Accessibility Plan (TMAP) Guidelines. The
draft TMAP Guidelines are used for reviewing
and assessing the needs for transport infrastructure and services
to support major land use changes identified in proposed land use
plans, for example: precinct plans, masterplans and planning
proposals. The NSW government would like to hear from professionals
involved in these types of proposals from organisations such as
local councils, Department of Planning, Housing and Infrastructure,
Transport for NSW, and industry (developers and consultants). The
consultation is open until 16 August 2024. Access the consultation
here.
NSW Suicide Prevention Legislation
– Have Your Say
The NSW Government is seeking feedback on the NSW Suicide
Prevention Legislation. Legislation is one of many tools the
government will use to strengthen NSW's whole of government
approach to suicide prevention. If you have lived or living
experience of suicide, the NSW government encourages you to provide
feedback, which will be important in helping shape this
legislation. The consultation is open until 16 August 2024. Read
more about and access the consultation here.
Cases
Webster v Bayside Council [2024] NSWCATAD
226
ADMINISTRATIVE LAW – access to information – GIPA
– reasonableness of search – public interest
considerations against disclosure – cl 3(a), 3(e) and 3(f) of
the Table in s14 of the GIPA Act.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Government Information
(Public Access) Act 2009 (NSW).
Kenneth Linton Smith v Central Coast
Council [2024] NSWSC 981
LAND LAW – adverse possession – possessory application
over Torrens title land – where the plaintiff seeks
a declaration that he is the rightful owner of part of the
defendants' rural land by reason of adverse possession for more
than 40 years – whether the acts of the plaintiff and his
predecessors in title establish factual possession and intention to
possess.
Imperial Act Adoption Act 1837 (NSW) (repealed); Limitation Act
1969 (NSW); Public Roads Act 1902 (NSW); Public Roads Act 1897
(NSW) ss 4-5, 7, 19; Real Estate (Limitation of Actions) Act 1837
(NSW) (repealed) ss 17, 34; Real Property Act 1900 (NSW) ss 28U(2),
45C(2), 45D(2); Roads Act 1993 (NSW); Roads and Streets Act 1833
(NSW) ss 1-3, 16, 17.
Piety Developments Pty Ltd v Cumberland City
Council (No 2) [2024] NSWCA 196
PRACTICE AND PROCEDURE – urgent application for stay pending
as yet unfiled application for special leave to appeal to the High
Court – application of Burgundy Royale test – no
substantial prospect of special leave being granted – stay
refused.
Conveyancing Act 1919 (NSW), s 54A; Local Government Act 1993
(NSW), s 372; Uniform Civil; Procedure Rules 2005 (NSW), r
18.4.
SafeWork NSW v Scopeview Projects Pty Ltd;
SafeWork NSW v Cameron Doueihi [2024] NSWDC 323
CRIMINAL LAW – prosecution – work health and safety
– duty of persons undertaking business – risk of death
or serious injury.
SENTENCE – objective seriousness – mitigating factors
– aggravating factors – plea of guilty – general
deterrence – specific deterrence – capacity to pay
appropriate penalty.
COSTS – prosecution costs.
OTHER – demolition and excavation work – masonry brick
walls – digging trenches around old walls – no
structural assessment of walls – no risk assessment for
unplanned collapses – failure to brace walls – wall
collapse – two walls collapsed in preceding weeks.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27,
28, 30A, 30B, 30D, 30E; Fines Act 1996 (NSW), ss 6, 122; Work
Health and Safety Act 2011 (NSW), ss 3, 19, 27, 31, 32.
FSO v Secretary, Department of Education
[2024] NSWCATAP 154
HUMAN RIGHTS – discrimination – disability –
education.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative
Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules
2014 (NSW).
Ramsay v Southern NSW Local Health District;
Manning v Sydney Trains; Honey v Robert Sheridan Family Trust;
Duncan v Department of Education; Magnan v Upper Shire Council
[2024] NSWDC 326
PERSONAL INJURY COMMISSION – WORKERS COMPENSATION –
CONSTITUITIONAL LAW – application to District Court under
s.26 of Personal Injury Commission Act 2020 – applications to
PIC for workers compensation where the parties are residents of
different States; and where respondent is State of NSW for the
purposes s.75(iv) of the Constitution (Cth) and the applicant is
resident of another State – whether PIC would be exercising
federal jurisdiction when determining issues under sections 4, 9,
9A, 11A, 14, 25,26, 32A, 33, 36, 37, 38, 59, 60 and 66 of the
Workers Compensation Act 1987 and s.4 of the Workplace Injury
Management and Workers Compensation Act 1998.
Constitution Act 1902 (NSW); Judiciary Act 1903 (Cth); Personal
Injury Commission Act 2020; Retail Tenancies Act 2010; The
Commonwealth Constitution; Transport Administration Act, 1988;
Workers Compensation Act, 1987 (NSW); Workplace Injury Management
and Workers Compensation Act 1998; Apprenticeship and Traineeship
Act 2001.
Environment Protection Authority v Green
[2024] NSWLEC 81
SENTENCING – early pleas of guilty by landowner to three
breaches of Local Land Services Act 2013 (NSW) arising from private
native forestry operation – strict liability offences –
forestry operation undertaken by contractors – extent of
environmental harm significant – mitigating circumstances
– assistance to authorities in voluntary reporting of
unlawful activities – restoration order made.
Biodiversity Conservation Act 2016 (NSW), ss 1.3, 1.6, 13.12,
13.20; Crimes (Sentencing Procedure)
Spencer v Kiama Municipal Council [2024]
NSWLEC 80
CIVIL PROCEDURE – parties – joinder –
neighbouring property owner to development application –
Joinder not necessary for all matters in dispute to be effectively
and completely determined.
CIVIL PROCEDURE – separate determination of questions –
where appropriate – determining separate question not
justified.
Civil Procedure Act 2005 (NSW), s 56; Environmental Planning and
Assessment Act 1979 (NSW), ss 8.7, 8.15; Kiama Local Environmental
Plan 1996, cl 6.7; Uniform Civil Procedure Rules 2005 (NSW), Sch 7,
rr 6.24, 28.2.
Palm Lake Works Pty Ltd v Tweed Shire
Council [2024] NSWLEC 1461
PRACTICE AND PROCEDURE – amended development application
– whether amendment constitutes fresh application –
amended class 1 application – extent of Court power pursuant
to s39(2) of the Land and Environment Court Act 1979 and s138 of
the Road Act 1993 – discretion – motion granted.
Civil Procedure Act 2005, s 64; Environmental Planning and
Assessment Act 1979, 8.15; Land and Environment Court Act 1979, s
39; Roads Act 1993, ss 138, 139; Environmental Planning and
Assessment Regulation 2000, cl 55; Tweed Local Environmental Plan
2000, cl 31.
Goldcoral Pty Ltd (Receiver and Manager
Appointed) v Richmond Valley Council [2024] NSWLEC
77
ENVIRONMENT AND PLANNING – consent development application
– concept proposal for residential subdivision and detailed
proposal for first stage – prior unauthorised works for
different subdivision – whether development consent can be
granted to amend and use some unauthorised works – mapped
coastal wetlands on land – subdivision of whole land but not
part of land mapped coastal wetlands – whether development is
designated development – applicable environmental planning
instrument – current instrument provides for designated
development – whether accrued right for application of former
instrument – impact on Koala – whether land is a
potential koala habitat or a core koala habitat – no
development on either habitat – impact on Wallum Froglet
– no development in habitat – impact on littoral
rainforest – whether sufficient buffer width to protect
– use of neighbouring land for native title rights –
impact on – whether sufficient buffer to protect –
Aboriginal cultural heritage sites – cultural landscape,
midden and burial site – impact on – development will
not diminish cultural landscape – no development on midden or
burial site.
ENVIRONMENTAL PLANNING INSTRUMENTS – saving and transitional
provisions – development application lodged under former
instruments – former instruments had savings provisions
– current instruments do not have saving provisions –
operation of Interpretation Act – whether saves accrued right
to have development application determined under former
instruments.
Biosecurity Act 2015 (NSW); Community Land Development Act 2021
(NSW); Conveyancing Act 1919 (NSW), ss 88B, 195; Environmental
Planning and Assessment Act 1979 (NSW), ss 1.5, 4.10, 4.15, 4.16,
4.22, 4.46, 8.7; Interpretation Act 1987 (NSW), ss 5, 30; Land and
Environment Court Act 1979 (NSW), s 39; National Parks and Wildlife
Act 1974 (NSW), s 90; Public Roads Act 1902; Roads Act 1993 (NSW),
s 138; Rural Fires Act 1997 (NSW), s 100B; Water Management Act
2000 (NSW), s 90; Environmental Planning and Assessment Regulation
2021 (NSW), cl 37; Richmond Valley Local Environmental Plan 2012;
State Environmental Planning Policy (Biodiversity and Conservation)
2021; State Environmental Planning Policy (Coastal Management)
2018; State Environmental Planning Policy (Koala Habitat
Protection) 2019; State Environmental Planning Policy (Koala
Habitat Protection) 2020; State Environmental Planning Policy
(Koala Habitat Protection) 2021; State Environmental Planning
Policy No 14 – Coastal Wetlands; State Environmental Planning
Policy No 44 – Koala Habitat Protection; State Environmental
Planning Policy No 71 – Coastal Protection; State
Environmental Planning Policy (Resilience and Hazards) 2021;
Biosecurity (Invasive Ant Carriers) Control Order 2023.
Environment Protection Authority v Forestry
Corporation of New South Wales [2024] NSWLEC 78
ENVIRONMENTAL OFFENCES: breach of conditions of Integrated Forestry
Operations Approval – conducting unlawful harvesting in
environmentally significant areas – pleas of guilty –
appropriate sentence – whether environmental harm –
whether harm substantial – whether harm foreseeable –
whether offender could take practical measures to reduce harm
– whether offender had control over commission of offences
– whether offender demonstrated contrition and remorse
– whether offender is of good character and unlikely to
reoffend – comparable cases – application of totality
principle – monetary penalty imposed – moiety ordered
– publication order made – professional costs ordered
– investigation costs refused.
Biodiversity Conservation Act 2016, ss 2.14, 12.8, 13.12, 13.23 and
13.25; Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 and
23; Criminal Procedure Act 1986, ss 215, 257B, 257G; Fines Act
1999, s 122; Forestry Act 2012, ss 5, 69L, 69M, 69P, 69SA and 69SB;
National Parks and Wildlife Act 1974, ss 133, 175 and 194;
Protection of the Environment Operations Act 1997, s 120.
Legislation
Bills introduced – Government
Government Sector Finance Amendment (Integrity Agencies) Bill 2024 – Introduced LC 8 August 2024
Industrial Relations Amendment (Administrator) Bill 2024 – Introduced LA 8 August 2024
Local Government Amendment (Rural and Remote Councils) Bill 2024 – Introduced LA 7 August 2024
Regional Development Amendment Bill 2024 – Introduced LA 7 August 2024
Universities Legislation Amendment Bill 2024 – Introduced LA 7 August 2024
Retail Trading Amendment (Anzac Day Trading Hours) Bill 2024 – Introduced LA 6 August 2024
NSW Self Insurance Corporation Amendment (Special Liability Insurance) Bill 2024 – Introduced LA 6 August 2024
Bills introduced – Non-Government
Water Management Amendment (Water Access Licence Register Reform) Bill 2024 – Introduced LA 8 August 2024
Bills revised following amendment in Committee
Transport Administration Amendment Bill 2024 – Introduced to LC for concurrence 7 August 2024
Bills passed by both Houses of Parliament
Coal Mine Subsidence Compensation Amendment Bill 2024 – Passed by both Houses 8 August 2024
Water Management Amendment (Central Coast Council) Bill 2024 – Passed by both Houses 8 August 2024
Prevention of Cruelty to Animals Amendment (Transparency and Fit and Proper Persons) Bill 2024 – Passed by both Houses 7 August 2024
Rice Marketing Amendment Bill 2024 – Passed by both Houses 7 August 2024
Bills assented to
Statute Law (Miscellaneous Provisions) Act 2024 No 47 – Assented to 09 August 2024
Proclamations commencing Acts
Energy Legislation Amendment (Clean Energy Future) Act 2024 No 41 (2024-336) – published LW 2 August 2024
Regulation and other miscellaneous instruments
Children (Education and Care Services) Supplementary Provisions Regulation 2024 (2024-339) – published LW 9 August 2024
Crimes (Forensic Procedures) Regulation 2024 (2024-340) – published LW 9 August 2024
Education (School Administrative and Support Staff) Regulation 2024 (2024-341) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-342) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-343) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-344) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-345) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-346) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-347) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-348) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-349) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-350) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-351) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-352) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-353) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-354) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-355) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-356) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-357) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-358) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-359) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-360) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-361) – published LW 9 August 2024
Fisheries Management Amendment (Threatened Species Conservation) Order 2024 (2024-362) – published LW 9 August 2024
Prisoners (Interstate Transfer) Regulation 2024 (2024-364) – published LW 9 August 2024
Public Health Amendment (Interstate Prohibition Orders) Regulation 2024 (2024-365) – published LW 9 August 2024
Regional Development Amendment (Advisory Council) Regulation 2024 (2024-366) – published LW 9 August 2024
Unexplained Wealth (Commonwealth Powers) (Referral Powers) Proclamation 2024 (2024-367) – published LW 9 August 2024
Administrative Arrangements (Administrative Changes – Miscellaneous) Order (No 3) 2024 (2024-338) – published LW 7 August 2024
Treasurer's Direction TD24-12 – Charter of Independence for NSW integrity agencies (2024-337) – published LW 6 August 2024
Environmental Planning and Assessment Amendment (Consent Authority) Regulation 2024 (2024-325) – published LW 2 August 2024
Heritage Amendment (Applications) Regulation 2024 (2024-326) – published LW 2 August 2024
Local Government (General) Amendment (Elections) Regulation 2024 (2024-327) – published LW 2 August 2024
Museum of Applied Arts and Sciences Regulation 2024 (2024-328) – published LW 2 August 2024
Pipelines Amendment Regulation 2024 (2024-329) – published LW 2 August 2024
Referable Debt Order (2024-330) – published LW 2 August 2024
Transport Legislation Amendment (Laboratories) Regulation 2024 (2024-331) – published LW 2 August 2024
Water Management (General) Amendment (Specific Purpose Access Licences) Regulation 2024 (2024-332) – published LW 2 August 2024
Casino Control Amendment (Manager Appointment Extension) (No 2) Regulation 2024 (2024-324) – published LW 1 August 2024
Environmental Planning Instruments
Clarence Valley Local Environmental Plan 2011 (Amendment No 54) (2024-368) – published LW 9 August 2024
The Hills Local Environmental Plan 2019 (Map Amendment No 3) (2024-369) – published LW 9 August 2024
Byron Local Environmental Plan 2014 (Amendment No 43) (2024-333) – published LW 2 August 2024
State Environmental Planning Policy Amendment (Miscellaneous) 2024 (2024-334) – published LW 2 August 2024
State Environmental Planning Policy Amendment (Riverwood) 2024 (2024-335) – published LW 2 August 2024
Bayside Local Environmental Plan (Housing) (Map Amendment No 1) (2024-321) – published LW 31 July 2024
Central Coast Local Environmental Plan (Housing) (Map Amendment No 1) (2024-322) – published LW 31 July 2024
Wollongong Local Environmental Plan (Housing) (Map Amendment No 1) (2024-323) – published LW 31 July 2024
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.
