Australia: NSW Government bulletin - 22 August 2017

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In the media

Barristers, solicitors and doctors unite to support marriage equality laws
The President of the Law Society of NSW Pauline Wright said the Law Society of NSW is committed to ensuring that all Australians are equal before the law in rights and dignity, regardless of sexual orientation or gender identity (19 August 2017). More...

Report on Justice System released by the Royal Commission into Institutional Responses to Child Sexual Abuse
The Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission) has released its report on 14 August 2017, titled 'Criminal Justice'. The report focuses on recommendations to improve the criminal justice system and responses to victims by the police and courts (16 August 2017). More...

Modern slavery consultation
The first step is an extensive consultation period with industry on the Government's Modern Slavery in Supply Chains Reporting Requirement discussion paper. This consultation, in conjunction with the inquiry, will help determine the final content of the proposed legislation to combat modern slavery, something which should no longer exist in today's world (16 August 2017). More...

Crackdown on money laundering and terrorism financing
The Coalition Government has today announced the first stage of reforms to strengthen the Anti-Money Laundering and Counter-Terrorism Financing Act and increase the powers of the AUSTRAC. The reforms implement the first phase of the recommendations of the Statutory Review of the Anti-Money Laundering and Counter-Terrorism Financing Act (17 August 2017). More...

Requiring business to report on anti-slavery efforts a historic step in addressing modern scourge
Plans for a new legal requirement for large Australian companies to report on measures they are taking to combat slavery is a momentous step along the path to an appropriately comprehensive anti-slavery regime, according to the Law Council of Australia (16 August 2017). More...

Proposed modern slavery legislation 'a good first step'
Human Rights Commissioner Edward Santow has welcomed a Federal Government proposal to legislate against modern slavery. Commissioner Santow said Government plans to require large businesses to report annually on their actions to address modern slavery (16 August 2017). More...

Anti-social salute for social media guide
The Community and Public Sector Union (CPSU) has raised what it terms are 'strong objections' against measures in the Australian Public Service Commission's (APSC) updated guide for dealing with social media. According to APSC Commissioner, John Lloyd, the consultation indicated that the policy settings did not need to change, but that current obligations were not well understood by employees. According to the CPSU however, the guide imposes severe restrictions on PS workers' personal use of social media (15 August 2017). More...

CASA fights drones with discussion paper
The Civil Aviation Safety Authority (CASA) has released a discussion paper on the regulation of flying drones and their threat to air safety. Submissions will be accepted until 22 September, and the 29-page discussion paper can be accessed at this PS News link.

Community safety drives disqualification laws
The NSW Government is toughening sanctions on those who repeatedly flout driver licence laws, but also providing a road back to lawful driving for disqualified drivers who can demonstrate they can be trusted (14 August 2017). More....

NSW Trustee and Guardian scotches surety bond scheme and apologises to private managers
The Berejiklian government has conceded it unlawfully foisted an insurance-style scheme on thousands of people managing the financial affairs of incapacitated loved ones and has promised to issue refunds. The NSW Trustee and Guardian (NSWTG) has decided not to appeal a court ruling that found it had imposed a surety bond scheme on private managers – that required them to pay up to $12,000 a year in new fees – "without power" (13 August 2017). More...

Helping vulnerable families through family law disputes
Vulnerable families, including those experiencing violence, will now have access to new and enhanced services to help them through family relationship breakdowns, with an additional $9.87 million in funding from the Turnbull Government (11 August 2017). More...

Councils set to lose DA powers 'to guard against corruption'
Councils in Sydney and Wollongong are set to be stripped of the power to consider development applications worth $5 million or more under new rules mandating the use of independent planning panels (08 August 2017). More... More...

Marriage equality campaign launches High Court challenge against postal plebiscite
The Human Rights Law Centre has filed a legal action against the Australian Government on behalf of Australian Marriage Equality and Senator Janet Rice. The action challenges the constitutional validity of the postal plebiscite on marriage equality (10 August 2017). More... More...

Corruption concerns over NSW's mandatory planning panel push
Property lobby groups are overjoyed by the NSW government's announcement it will install mandatory planning panels to approve development applications, but the local government sector and opposition parties say there are probity and accountability issues (09 August 2017). More...

NSW medicinal cannabis bill fails
The NSW Government has voted down legislation that would decriminalise cannabis possession (10 August 2017). More...

Postal plebiscite policy would face urgent High Court challenge
Anna Brown, Director of Legal Advocacy at the Human Rights Law Centre, has publicly released a joint opinion from top constitutional experts confirming that the Government spending money for a postal plebiscite without passing legislation would be unconstitutional (07 August 2017). More...

Federal Government's changes to welfare laws will give too much power over remote communities to an unelected bureaucrat
The Federal Government's Welfare Reform Bill contains unfair and needlessly punishing measures, while giving too much power over the lives of Aboriginal and Torres Strait Islander people in remote communities to an unelected bureaucrat, the Human Rights Law Centre has told a Senate inquiry (08 August 2017). More...

Legal experts speak up for future prospect of online courts
The nation's legal system has been described as too expensive and out of the reach of many people by former High Court judge Michael Kirby, who is advocating for the introduction of online civil courts as a way to improve the affordability of justice in Australia (07 August 2017). More...

Public servants not liking new social media restrictions
A simple click or tap of Facebook's 'like' button can land you in hot water if it's content that doesn't fall within approved speech of the state. That is if you're a public servant within the Australian government, as all are now on notice for the slightest deviation from the permitted script (07 August 2017). More...

Though shalt not criticise
The Australian Public Service Commission has released its updated guide to social media use by Federal public servants. The guide, Making public comment on social media: A guide for employees, leaves absolutely no room for employees to make critical comments of any of their ministers, superiors, or departments (07 August 2017). More...

Census and Statistics (Statistical Information) Direction 2017
09/08/2017 - This direction by the Treasurer to the Australian Statistician is to collect certain statistical information on same-sex marriage. More...

In practice and courts

The first step is an extensive consultation period with industry on the Government's Modern Slavery in Supply Chains Reporting Requirement discussion paper. The consultation paper is available online at the modern slavery consultation page on the Attorney-General's Department website. The deadline for submissions is 20 October 2017 (16 August 2017). More...

LCA: Australia's access to justice crisis laid bare: national Justice Project releases papers
The Law Council of Australia has today said that countless Australians are being denied access to justice as its national Justice Project moves into the consultation phase.
Consultation papers, overseen by a Steering Committee of eminent lawyers, academics and jurists including former High Court Chief Justice, the Hon. Robert French AC, have been released for feedback. Submissions close on 30 September 2017. More...

ALRC Brief - August 2017
Published on 8 August 2017. More...

New Multicultural Access and Equity Plan for 2017–18
OSAUC has recently published the Multicultural Access and Equity Plan for 2017–18 (16 August 2017). More...

OAIC: Australian Red Cross Blood Service data breach
(07 August 2017) Australian Red Cross Blood Service data breach

Australian Public Sector Anti-Corruption Conference (APSACC) 2017
The Office of the Commonwealth Ombudsman is proud to partner with the Australian Public Sector Anti-Corruption Conference (APSACC) 2017. The conference will run from 14–16 November 2017 at The Westin, Sydney. More...

NSW

NCAT Legal Bulletin Issue 6 of 2017
The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of June to July 2017. More...

ICAC November 2017 workshops
Workshops by leading practitioners on conducting investigations, strategic corruption prevention management or effective complaint handling (17 August 2017). More...

Royal Commission civil litigation recommendations
The NSW Government is considering the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse about how to provide justice to victims of future institutional child abuse. The Department of Justice has developed a consultation paper which identifies some of the potential issues and poses questions about possible options for reform. Submissions close on 4 September 2017. More...

NSW IPC Case notes

Information Access Casenote: Zonnevylle v Department of Education [2017] NSWCATAD 101
Read the decision at NSW Caselaw Zonnevylle v Department of Education [2017] NSWCATAD 101. In establishing that searches for information are reasonable, an agency may demonstrate: the use of identifiers provided by an applicant; that officers conducting searches turned their minds to where that information may be held in the agency; and that search officer declarations have been completed.

Published – articles, papers, reports

The Management of Risk by Public Sector Entities
ANAO: 15 August 2017
The audit objective was to assess how effectively the selected public sector entities manage risk. More...

The Royal Commission into Institutional Responses to Child Sexual Abuse has released these 85 recommendations aimed at reforming the Australian criminal justice system, in order to provide a fairer response to victims of institutional child sexual abuse.
Criminal justice report: executive summary and parts I - II
Criminal justice report: parts III - VI
Criminal justice report: parts VII - X and appendices

2017 Parliamentary remuneration and business resources: a quick guide
Cathy Madden and Deirdre McKeown; Politics and Public Administration: 14 August 2017
This quick guide: provides a brief overview of the legislative and administrative changes to parliamentary business resources (as they are now known) and provides links to relevant resources, including Bills Digests and other relevant Parliamentary Library publications, Bill homepages and Acts. More...

Incarceration in Australia is growing rapidly. The 2016 adult incarceration rate was 208 per 100,000 adults, up 28 percent from 2006. There are now more than 36,000 prisoners, up 39 percent from a decade ago. More...

Haters Gonna Hate: When the public uses social media to comment critically or maliciously about judicial officers – Marilyn Bromberg and Andrew Ekert
This article examines how the government and business deal with critical or malicious comments on social media and applies this to the judiciary. It argues that it is important that the judiciary take preventive action in this area so that they are in the best position to deal with critical or malicious comments on social media when they are posted.

Trial by Judge without Jury – Some contemporary reflections – Russ Scott
In all Australian jurisdictions, many serious offences can be tried summarily, and in most jurisdictions, an indictable offence can be tried by a judge without a jury. Given the pervasive effect of news streaming, the internet and social media, it is argued that there are compelling public policy issues which commend an accused being able to elect to waive his or her right to trial by jury and instead be tried by a judge.

Ethical duties owed by lawyer mediators: Suggestions for improving the NMAS Practice Standards – Bobette Wolski
This article amalgamates the two regulatory systems to which lawyer mediators are subject to identify and analyse the ethical duties owed by lawyer mediators. In addition, it aims to suggest ways in which to improve the NMAS Practice Standards, which have become, arguably, the single most important regulatory instrument for mediators in Australia.

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Cases

Lather v Roads and Maritime Services [2017] NSWCATOD 124
ADMINISTRATIVE LAW - Merits Review – authority to drive private hire vehicle – criminal convictions – good behaviour bonds – reputation – fit and proper.

DBU v Secretary, Department of Education [2017] NSWCATAD 257
ADMINISTRATIVE REVIEW – Education and Care Services National Law – family day care - service approval – breach of condition of approval – failure to commence ongoing operation within 6 months – meaning of commence ongoing operation – whether approval should be cancelled. JURISDICTION – basis of Tribunal's jurisdiction to review decision – administrative review jurisdiction – general jurisdiction – meaning of administrative review in the Education and Care Services National Law.

McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258
ADMINISTRATIVE REVIEW - Home Building Act 1989 - individual contractor licence – fit and proper – convicted of criminal offences – currently on parole – no evidence of rehabilitation – community standards.

Santos v Secretary, Industrial Relations for Corrective Services NSW [2017] NSWIRComm 1052
Public sector disciplinary appeal upheld.
PUBLIC SECTOR DISCIPLINARY APPEAL - disobedience of Governor's direction – misconduct – disciplinary sanction warranted – officer demoted – demotion appropriate – appeal upheld only to the extent that demotion ought be for a fixed period of two years rather than indefinitely.
PUBLIC SECTOR DISCIPLINARY APPEAL – jurisdiction protective of public service and public.
PUBLIC SECTOR DISCIPLINARY APPEAL - Commission to determine whether the decision imposed was correct or preferable decision in the circumstances.

Findex Group Ltd v iiNet Ltd (Application by ASIC) (No 2) [2017] NSWSC 1048
(1) ASIC is to serve on the plaintiff's legal representative within 7 days redacted copies of any documents within Confidential Exhibit "A" not already served on the plaintiffs' legal representatives, such redactions to be in accordance with the documents prepared by ASIC and provided to the Court on a confidential basis on 28 July 2017.
EVIDENCE — Privilege — Public interest immunity.

NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245
GOVERNMENT INFORMATION - conclusive presumption of overriding public interest against disclosure – information that would be privileged from production on the ground of client legal privilege – in-house lawyers - secondary material also privileged if that material discloses the privileged communication.

CTH v The University of New South Wales [2017] NSWCATAD 244
PRIVACY – Personal Information – Use for purpose collected – Whether use consistent with purpose collected – Disclosure within agency – Whether circumstances amount to disclosure.

Legislation

NSW

Bills assented to

Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 No 39 — Assented to 14 August 2017.
Justice Legislation Amendment Act 2017 No 40 — Assented to 14 August 2017.
Transport Legislation Amendment (Automated Vehicle Trials and Innovation) Bill 2017 – Assented to 14 August 2017.

Bills introduced – 11 August 2017

Government
Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017

Non-Government
Public Accountability Legislation Amendment (Sydney Motorway Corporation) Bill 2017

Bills revised following amendment in Committee – 11 August 2017
Charitable Fundraising Amendment (Inquiries) Bill 2017

Bills passed by both Houses of Parliament – 11 August 2017
Charitable Fundraising Amendment (Inquiries) Bill 2017
Justice Legislation Amendment Bill 2017

Regulations and other miscellaneous instruments
Workplace Surveillance Regulation 2017 (2017-417) — published LW 11 August 2017.

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.