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In the media
Lionel Murphy: Parliament releases secret files
detailing misconduct allegations against former
judge
Sealed documents from one of the most explosive scandals in
Australian political and judicial history have been released by
Federal Parliament, and detail a series of allegations about
misconduct by a former high court justice (14 September 2017).
More...
Marriage Law Survey (Additional Safeguards) Act 2017
rushed through Parliament
In light of the upcoming postal Marriage Law Survey regarding
same-sex marriage, the Parliament of Australia has yesterday, 13
September 2017, pushed through the Marriage Law Survey
(Additional Safeguards) Bill 2017, and the Marriage Law
Survey (Additional Safeguards) Act 2017 (the
Act) has been assented to as Act 96 of 2017.
Commencing immediately, the Act will be in operation until the
result of the Marriage Law Survey is declared on 15 November 2017
(14 September 2017). More...
Legal protection necessary as postal survey hits
letterboxes
Parliament has agreed on new laws to safeguard against hate speech
during the same-sex marriage postal survey campaign by rapidly
passing the Marriage Law Survey (Additional Safeguards)
Bill. The Law Council has strongly advocated for the
anti-vilification provisions which cover a wide-range of conduct.
The new temporary laws will apply until mid-November restricting
content published by campaigns, anyone found to have breached those
provisions could face a $12,000 fine and a court injunction (14
September 2017).
More...
Legal profession backs Integrity Commission and
Whistleblower reports
The Law Council has thrown its support behind the Select Committee
into a National Integrity Commission report and the Joint Committee
on Corporations and Financial Services Whistleblower protections
report. Several of the recommendations contained in these
reports are consistent with the Law Council's positions
that have been put forward to both Committees (14 September 2017).
More...
Uniform Legal Services Commissioner
appointed
Megan Pitt, former Director of the Australian Government
Solicitor's Sydney Office, will be appointed the new
Commissioner for Uniform Legal Services Regulation and Chief
Executive Officer of the Legal Services Council (14 September
2017).
More...
Eddie Obeid loses appeal against misconduct in public
office conviction
Corrupt former Labor minister Eddie Obeid's appeal against his
conviction for misconduct in public office fails and he will have
to serve out his minimum three-year jail term (13 September 2017).
More...
Same-Sex Marriage Plebiscite: High Court Dismisses
Constitutional Challenge
The High Court dismissed the constitutional challenge to the
same-sex marriage plebiscite on 7 September 2017, confirming that
the plebiscite is valid. The High Court has stated that it will be
publishing reasons on a subsequent date (08 September 2017). More...
Years to go to trial but 32 minutes to convict —
Attorney-General calls for explanation
The NSW Attorney-General calls on the Director of Public
Prosecutions to explain the handling of the Lynette Daley
manslaughter saga, which took years to go to trial after the DPP
initially decided not to prosecute (07 September 2017).
More...
New Ombudsman for NSW
NSW Premier Gladys Berejiklian has announced the Government has
proposed the appointment of Michael Barnes as the NSW Ombudsman (06
September 2017).
More...
In practice and courts
BOSCAR: NSW Recorded Crime Statistics quarterly update
June 2017
Although, most categories of crime are stable or falling, a number
of enforcement related categories are increasing. They include
breach bail conditions (up 7.8%), possess/use cocaine (up 33.7%)
and transport regulatory offences (up 15.2%) (07 September 2017).
More...
NSW Justice Consultation: NSW strengthening child sexual
abuse laws discussion paper
The discussion paper considers the Royal Commission's
recommendations, including: strengthening grooming offences;
removing remaining limitation periods on some historic child sex
offences; and developing a targeted failure to report offence. To
make submissions on the discussion paper, visit the NSW
Government's 'Have
Your Say' website (01 September 2017).
More...
District Court Criminal Practice Note 14 –
Telephone readiness hearings for circuit sitting
Applicable trials will be given a Telephone Readiness Hearing at
least 6 weeks before the date of the trial. Applicable trials are
all those listed for hearing with estimates of five days or more in
circuit sittings, with the exceptions of Newcastle, Lismore,
Tamworth, Armidale, Dubbo, Gosford, Wollongong, and Wagga Wagga.
More... (September 2017)
ICAC: Prosecution briefs with the DPP and
outcomes
Tables of prosecution briefs with the DPP and outcomes. Last
updated 15 September 2017.
More...
ICAC: Keep in touch with the ICAC
Subscribe here to Corruption Matters, the ICAC's biannual
newsletter. The next issue is due out in October 2017 (07 September
2017). More...
ICAC November 2017 workshops
Workshops by leading practitioners on conducting investigations,
strategic corruption prevention management or effective complaint
handling. More...
Australian Public Sector Anti-Corruption
Conference
The conference will be held at The Westin Sydney on 14 to 16
November 2017. More...
Published – articles, papers, reports
Senate Select Committee on a National Integrity
Commission – report
Senate Select Committee on a National Integrity Commission: 13
September 2017.
This report examines the adequacy of the Australian
government's legislative, institutional and policy framework in
addressing all facets of institutional, organisational, political,
electoral, and individual corruption and misconduct.
More...
Whistleblower protections
Parliamentary Joint Committee on Corporations and Financial
Services: 13 September 2017
One of this report's main recommendations is the establishment
of a Whistleblower Protection Authority that can support
whistleblowers, assess and prioritise the treatment of
whistleblowing allegations, conduct investigations of reprisals,
and oversight the implementation of the whistleblower regime for
both the public and private sectors.
More...
Rising inequality: an Australian reality
Australian Council of Trade Unions: 13 September 2017"
The Australian Council of Trade Unions (ACTU) has
released this report that shows Australia is at risk of becoming an
Americanised society of working poor if people are not given a pay
rise.
More...
Independent investigation into NSW water management and
compliance - interim report
Ken Matthews; Department of Industry (NSW): 11 September
2017
The allegations of water theft and maladministration that are the
subject of this investigation were raised on the ABC TV 'Four
Corners' program "Pumped: Who is benefitting from the
billions spent on the Murray-Darling?''
More...
Social impact assessment guideline
Department of Planning and Environment (NSW): 08 September
2017
Social impact assessment is the process of identifying, predicting,
evaluating and developing responses to the social impacts of a
proposed state significant resource project, as part of the overall
environmental impact assessment of that project.
More...
Cases
CEU v University of Technology Sydney [2017] NSWCATAD 280ADMINISTRATIVE LAW – costs.
Searle v Transport for NSW [2017] NSWCATAD
256
ADMINISTRATIVE LAW – Government information – Whether
conclusive presumption of overriding public interest against
disclosure - Cabinet information – Where Infrastructure NSW
engages experts to conduct reviews of major infrastructure projects
in order to monitor progress of projects and for other purposes -
Where applicant sought information in reviews of Sydney Light Rail
Project – Where summaries of reviews regularly submitted to
Cabinet but reviews themselves never yet submitted to Cabinet -
Whether agency had reasonable grounds for claim that dominant
purpose of preparing review documents was submission of documents
to Cabinet – Meaning of "reasonable grounds".
ADMINISTRATIVE LAW – Government information –Public
interest considerations against disclosure – Whether
disclosure of the information sought could reasonably be expected
to prejudice the supply of confidential information – Where
public servants providing information in confidence were under a
duty to be candid – Whether public servants could reasonably
be expected to be less than candid when providing information which
could damage relationships with stakeholders – Where little
evidence led as to the position of private sector individuals
providing confidential information to agency – Whether
disclosure of the information sought could reasonably be expected
to prejudice the effective exercise by an agency of its functions -
Whether disclosure of the information sought could reasonably be
expected to prejudice an agency's legitimate business and
commercial interests and/or place an agency at a competitive
disadvantage in the market.
ADMINISTRATIVE LAW – Government information – Public
interest considerations in favour of disclosure – Where
disclosure could reasonably be expected to enhance the maintenance
and advancement of a system of responsible and representative
government that is open, accountable, fair and effective –
Where information of public interest and importance.
ADMINISTRATIVE LAW – Government information – Power of
Tribunal to raise public interest considerations against disclosure
not raised by respondent – Onus of respondent – Where
respondent did not consult with individuals about release of their
personal information.
Kuzma v State Transit Authority Group of the Transport Service
of NSW [2017] NSWIRComm 1061
PUBLIC SECTOR DISCIPLINARY APPEAL – allegations against Bus
Operator of breaches of Code of Conduct and Bus Operations Handbook
– behaved in an inappropriate and unprofessional manner
towards colleague – behaviour towards colleague was abusive
and threatening – left bus unattended and unsecured –
penalty imposed of reduction in classification for three months
– misconduct allegations proven – penalty fair and
reasonable in all the circumstances – appeal dismissed.
Taylor v Destination NSW [2017] NSWCATAD
272
ADMINISTRATIVE LAW – GIPA – Access to information
– refusal of access – refusal – correct
application of public interest test – discharge of onus
– confidential information - failure to consult –
correct and preferable decision.
Shoebridge v Office of Environment and Heritage [2017]
NSWCATAD 275
ADMINISTRATIVE LAW – access to information – reviewable
decisions – processing charges – estimate of processing
charges – advance deposit – discount – special
public interest – timing of decision – in the nature of
preliminary decision – whether discount applied to advance
deposit – deemed refusal.
GOVERNMENT INFORMATION – public interests against disclosure – whether information is held by the agency - reasonableness of searches - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information.
McEwan v Port Stephens Council [2017] NSWCATAD
269
GOVERNMENT INFORMATION –public interests against disclosure -
personal information – risk of harm or serious harassment or
serious intimidation - balance of public interest considerations -
overriding public interest against disclosure of information.
Turner v Legal Aid Commission NSW [2017] NSWCATAD
270
ADMINISTRATIVE Law - GIPA Act – Government Information
– Access –Sufficiency of search.
DC v Secretary, Department of Family and Community Services
& Ors [2017] NSWCA 225
ADMINISTRATIVE LAW — Hearings — Procedural fairness
— whether applicant withdrew from hearing or withdrew from
appeal — whether applicant denied procedural fairness.
ADMINISTRATIVE LAW — Jurisdiction — Inherent
jurisdiction — discretion to refuse prerogative relief
— length of delay — whether in the best interests of
the child. CIVIL PROCEDURE — Court of Appeal —
Application — summons for judicial review — extension
of time to commence proceedings — raises questions of general
importance — extension of time granted. CIVIL PROCEDURE
— Representation — Unrepresented litigants —
Assistance of court — scope of court's obligation to
assist unrepresented litigants. CIVIL PROCEDURE — Registrars
— Powers of Registrar — power to waive, postpone and
remit fees. FAMILY LAW AND CHILD WELFARE — Child Welfare
under State Legislation — children in need of protection
— amendment to care plan under Children and Young Persons
(Care and Protection) Act 1998 (NSW) — whether amendment
to care plan in absence of applicant gave rise to procedural
unfairness.
Legislation
Commonwealth
Criminal Code Amendment (Prohibition of Full Face Coverings in
Public Places) Bill 2017
Senate Second reading debate 14/09/2017 - Amends the Criminal
Code Act 1995 to: prohibit the wearing of full face coverings
in public places under the jurisdiction of the Commonwealth if the
threat level under the National Terrorism Threat Advisory System is
higher than 'possible'.
Marriage Law Survey (Additional Safeguards) Bill
2017
Finally passed both Houses 13/09/2017; Assent Act no: 96 Year: 2017
13/09/2017 - The Bill ensures that the survey has a comprehensive
suite of safeguards in place to allow the expression of free and
informed views, to allow persons to hold and express views without
being vilified and ensures the public communications are clearly
authorised, so people know who is communicating with them, and to
prevent undue influence through bribery, threats and misleading or
deceptive publications.
Criminal Code Amendment (Impersonating a Commonwealth Body)
Bill 2017
Introduced and read a first time 13/09/2017; Second reading moved
13/09/2017.
The Bill will introduce new offences and a new injunction power to
prohibit and prevent conduct amounting to false representation of a
Commonwealth body. Specifically, the offences and the injunction
power will prohibit a person from falsely representing themselves
to be, or to be acting on behalf of, or with the authority of, a
Commonwealth body.
Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill
2017
House of Representatives Introduced and read a first time
13/09/2017; Second reading moved 13/09/2017. This Bill better
protects the community from the dangers of child sexual abuse by
addressing inadequacies in the criminal justice system that result
in outcomes that insufficiently punish, deter or rehabilitate
offenders. The Bill targets all aspects of the child sex offender
cycle from the commission of an offence, to bail, sentencing and
post-imprisonment.
Customs
Amendment (Safer Cladding) Bill 2017
Introduced Senate 11/09/2017
The bill amends the Customs Act 1901 to expressly ban the
importation of polyethylene (PE) core aluminium
composite panels (ACPs). There cannot be, in light
of the Grenfell Tower tragedy, legitimate use of PE core ACPs on
any building type. There are safe non-flammable and fire retardant
alternatives available and a ban on the importation of PE core ACPs
will encourage the use of such alternatives.
Investigation
and Prosecution Measures Bill 2017
Registered 13/09/2017; Introduced HR 13/09/2017
A Bill for an Act to amend the law relating to the Independent
Commission Against Corruption of New South Wales and the
prosecution of offences on Norfolk Island.
Electoral and Other Legislation Amendment Bill
2017
Senate Introduced and read a first time 07/09/2017; Second reading
moved 07/09/2017
Implements the Government's response to the recommendations of
the Joint Standing Committee on Electoral Matters' report The
2016 Federal Election: Interim Report on the authorisation of voter
communication by amending the: Commonwealth Electoral Act
1918 to: apply the electoral authorisation requirements to
modern communication channels; require all paid electoral
advertising to be authorised; require entities subject to the
electoral funding and financial disclosure regime to include this
information in their political communications; ensure the
obligation to authorise electoral and referendum matter primarily
rests with those responsible for the decision to communicate it;
and replace the current criminal non-compliance regime with a civil
penalty regime to be administered by the Australian Electoral
Commission; Referendum (Machinery Provisions) Act 1984,
Australian Broadcasting Corporation Act 1993, Broadcasting Services
Act 1992 and Special Broadcasting Service Act 1991 to
harmonise authorisation requirements across broadcasting, electoral
and referendum legislation; Parliamentary Proceedings
Broadcasting Act 1946 to make consequential amendments; and
Criminal Code Act 1995 to introduce an offence which
criminalises false representations in relation to a Commonwealth
body.
Fair Work Amendment (Protecting Vulnerable Workers) Bill
2017
Finally passed both Houses 05/09/2017 - Amends the Fair Work Act
2009 to: increase maximum civil penalties for certain serious
contraventions of the Act; hold franchisors and holding companies
responsible for certain contraventions of the Act by their
franchisees or subsidiaries where they knew or ought reasonably to
have known of the contraventions and failed to take reasonable
steps to prevent them; clarify the prohibition on employers
unreasonably requiring their employees to make payments in relation
to the performance of work.
Commonwealth Electoral Amendment (Donation Reform and
Transparency) Bill 2017
House of Representatives: Removed from the Notice Paper in
accordance with (SO 42) 05/09/2017 - 2017Amends the
Commonwealth Electoral Act 1918 to: reduce the disclosure
threshold to $1000; ensure that, for the purposes of the disclosure
threshold and the disclosure of gifts, related political parties
are treated as one entity; prohibit the receipt of a gift of
foreign property and all anonymous gifts by registered political
parties, candidates and members of a Senate group; provide that
public funding of election campaigning is limited to declared
expenditure incurred by the eligible political party, candidate or
Senate group, or the sum payable calculated on the number of first
preference votes received where they have satisfied the four per
cent threshold, whichever is the lesser; provide for the recovery
of gifts of foreign property, anonymous gifts and undisclosed
gifts; introduce new offences and penalties; and increase penalties
for existing offences.
Regulation
Do
Not Call Register (Administration and Operation) Determination
2017
13/09/2017 - This instrument determines the requirements for
applications for registration, as well as other requirements
regarding the registration, correction and removal of numbers on
the Do Not Call Register.
High Court (2018 Sittings) Rules 2017
11/09/2017 - These Rules of Court appoints the High Court's
days of sittings for 2018.
NSW
Bills introduced Government – 15 September 2017
Justice Legislation Amendment Bill (No 2)
2017
The object of this Bill is to make various amendments to the
following Acts and Regulation within, or with provisions relating
to matters within, the Justice portfolio – Schedule 1.2
amends the Civil and Administrative Tribunal Act
2013.
(a) to include a decision of the Tribunal to grant leave (or
refuse to grant leave) for a person to represent a party to
proceedings to be an interlocutory decision for the purposes of
that Act, allowing any such party a right to appeal that decision,
and
(b) to provide that when the Tribunal is constituted by 2 members,
each member must have certain qualifications, including that of an
Australian lawyer, but must not have the same qualification as the
other member, and
(c) to confirm that the Appeal Panel may exercise all the functions
that are conferred on the Tribunal when varying, or making a
decision in substitution for, the Tribunal and may do so on grounds
not relied upon by the Tribunal, and
(d) to enable certain persons, with the leave of the Local Court or
District Court, to commence proceedings in the Court for the
determination of original applications and external appeals that
the Tribunal cannot determine because they involve the exercise of
federal diversity jurisdiction (that is, jurisdiction referred to
in section 75 (iv) of the Commonwealth Constitution).
Non-Government – 15 September 2017
Summary Offences Amendment (Full-face Coverings Prohibition)
Bill 2017
The object of this Bill is to make it an offence (maximum penalty
of $550) for a person, without reasonable excuse, to wear a face
covering while in a public place. A face covering is defined as any
article of clothing or other thing (such as a helmet) that hides
the face of a person in a way that conceals the person's
identity. The Bill provides that a person's religious or
cultural belief does not constitute a reasonable excuse for the
purposes of the proposed offence. The prohibition does not extend
to the wearing of face coverings in churches or other places of
worship.
The Bill also makes it an offence (maximum penalty of $1,100) to
compel another person, by means of a threat, to commit the proposed
offence of wearing a face covering in a public place.
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.