Australia: NSW Government Bulletin - 28 August 2013

Last Updated: 24 September 2013
Most Read Contributor in Australia, September 2016

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link.

This edition we see the private lives of public sector employees becoming increasingly scrutinised by the Courts. In particular, in the case of Banerji v Bowles [2013] FCCA 1052 the Federal Circuit Court has held that tweets made by a Department of Immigration and Citizenship (DIAC) employee in a non-official capacity, which criticised DIAC's policies, were not protected by the 'constitutional right/freedom of political communication'. Holding Redlich's Charles Power has provided an insightful commentary on the case and its implications for government workers. In a similar vein, the High Court is currently hearing an appeal on Comcare v PVYW [2012] FCAFC 181 the compensation case regarding an employee who injured herself while engaging in after hours activities during a work trip. The High Court has been asked to contemplate what activities occurring in the course of employment are compensable. It was suggested by Justice Gageler in the recent Full Court hearing that any activity in the course of employment was compensable, so long as it did not constitute misconduct.

In the media

Contention over muzzling government employee Tweets
Charles Power, workplace relations specialist and partner at Holding Redlich highlights the conflicts over the personal and official use of social media by public sector employees after a Federal Circuit Court Judge knocked-back an attempt by a Canberra public servant to obtain an injunction on any move to have her sacked over tweets that were made in a non-official capacity (20 August 2013). More...

Privacy Commissioner: Website privacy policies are too long and complex
The Office of the Australian Information Commissioner (OAIC) has released the results of a 'privacy sweep' of the websites most used by Australians. The sweep was part of the first international internet privacy sweep, an initiative of the Global Privacy Enforcement Network (GPEN) (14 August 2013). More...

Test For Activities that Attract Workers' Compensation Considered by High Court
The High Court is in the process of hearing an appeal from the Federal Court's decision in Comcare v PVYW [2012] FCAFC 181 (13 December 2012), involving a workers' compensation claim to Comcare by an employee. Justice Gageler has suggested that any activity, excluding misconduct, can be compensated for if it was done in the course of employment, thus precluding any moral judgments about the activities (August 2013). More...

Jury Research Paper into Witness Credibility Professor Ian Coyle has produced a witness credibility report for the Centre for Law, Governance and Public Policy's jury research project. The results showed support for the proposition that information provided to jurors produced either by judicial directions or by way of expert evidence can correct juror misconceptions of behaviour indicative of deception (05 August 2013). More...

In practice and courts

New Judicial Speech
The Supreme Court has released the paper Forewarned and Four-Armed - Administrative Law Values and the Fourth Arm of Government, a lecture delivered by Justice Warne Martin on 1 August 2013 in Sydney.

COAT NSW Annual Conference, 13 September 2013
Theme: access and capability and includes keynote address: Non -Publication, Suppression Orders and Open Justice: Can They Co -Exist? by Kate McClymont, SMH investigative journalist. More...

Published – articles, papers, reports

People with mental health disorders and cognitive impairment in the criminal justice system: cost-benefit analysis of early support and diversion

Author: Ruth McCausland et al, Australian Human Rights Commission (AHRC)

This report uses NSW as the example for discussion as it has the best information on mental health disorders and cognitive impairment in the criminal justice system (08 August 2013). More...

How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?

Author: Report to the Criminal Lawyers Association of Australia and New Zealand

The first research of its type into determining a juror's assessment of witness credibility, participants completed a questionnaire on behavioural indicia of deception, before being divided into further experimental conditions (2013). More...


Banerji v Bowles [2013] FCCA 1052 (9 August 2013)
INDUSTRIAL LAW – Fair work – interlocutory injunction – 'serious question' to be tried – alternative remedies available to applicant – applicant seeks declarations in relation to the 'constitutionally protected implied freedom of political communication' – declarations sought on the basis of applicant's apprehension that the respondent has pre-determined adverse action following Departmental workplace review – applicant confirms breach of APS Code of Conduct by 'tweeting' comments critical of Minister for Immigration, critical of Government policy, critical of Department employees but such breaches 'protected' by the 'constitutional right/freedom of political communication' – alleged breach of contract of employment by applicant working elsewhere while still employed by respondent – challenge to the jurisdiction of the Court – 'associated jurisdiction'. More...

Elaine Teoh v Hunters Hill Council & Anor [2013] HCASL 125
The applicant sought judicial review in the Land and Environment Court of New South Wales of a grant by the first respondent of a development consent. On 16 September 2008, Sheahan J dismissed her application. The applicant did not appeal that decision but, by notices of motion in the Land and Environment Court, sought orders reopening the proceeding. As the application for special leave has no prospects of success, an enlargement of time should not be granted. More...

Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council (No 2) [2013] NSWLEC 127
JUDICIAL REVIEW - statutory construction - appointment of auditor by New South Wales Aboriginal Land Council to audit finances of local aboriginal land council - responsibility of local aboriginal land council to pay auditor - appointment not declared ineffective because of failure of local aboriginal land council to enter into service agreement with appointed auditor

Aboriginal Land Rights Act 1983 s 3, s 4, s 32 (repealed), s 50, s 52, s 61, s 82, s 83, s 84, s 104, s 106, s 149, s 152, s 153, s 155, s 158, s 159, s 160, s 162, s 163, s 216, s 222, s 248, s 25. More...

McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125
ADMINISTRATIVE LAW - judicial review - development consent - characterisation of development - consent for a "transitional group home" - definitions in State Environmental Planning Policy (Affordable Rental Housing) 2009 and Coffs Harbour City Local Environmental Plan 2000 - residential facility for rehabilitation of those recovering from drug and alcohol abuse - whether development proposed was a "dwelling" within the definition of "transitional group home" - interpretation of defined composite expression by reference to the meaning of constituent parts - whether occupied as a single household - ancillary development - summons dismissed. More...

Warren v NSW Trustee and Guardian [2013] NSWADT 178
Pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings as set out in these reasons for decision.

Government information - form of access - whether form of access requested by the applicant would interfere unreasonably with the operations of the agency - whether there is an overriding public interest against disclosure of the information in the way requested by the applicant - whether the considerations against disclosure of the information are relevant to the determination as to the form of access

Government information - public access - public interest considerations against disclosure - prejudice the supply of confidential information - prejudice the effective exercise of the agency's functions - prejudice the effectiveness of the review conducted by the agency - reveal false or unsubstantiated allegations that are defamatory - expose a person to a risk of harm or serious harassment or serious intimidation - personal information. More...

Wentworth Shire Council v Bemax Resources Limited and Ors [2013] NSWSC 1047
Judgment for the Plaintiff in the amount of $495,550.36 inclusive of interest up to and including 2 August 2013

Judgment for the Cross Claimant against the Cross Defendants in the amount of $1,916,005.75 inclusive of interest up to and including 2 August 2013.

CONTRACTS - construction of the contract - whether a clause limited council rates to $100K (plus "pegged" increases) for twenty years - issue of material to which the Court can have regard in the case of ambiguity and the relevance of the outcome of a particular construction (illegality or void contract) - alternative claims in estoppel and rectification raised but not determined.

ADMINISTRATIVE LAW - whether the council's agreement to fix rates for twenty years in the manner contained in clause 3.1 of the contract was beyond power and or a fetter on its power and hence ultra vires.

MISLEADING AND DECEPTIVE CONDUCT - whether a local council is acting "in trade or commerce" pursuant to s 42 of the Fair Trading Act 1987 and s 52 of the Trade Practices Act by entering into a contract relating to the creation of a road and whether the local council is a trading corporation pursuant to s 52 of the Trade Practices Act - findings also made on the question of whether the impugned conduct caused loss and whether there was evidence that the council did not have a reasonable ground for making the representation. More...



Regulations and other statutory instruments

The object of this Regulation is to amend the Statutory and Other Offices Remuneration

(Judicial and Other Office Holders) Regulation 2013 to re-declare the Government's policies that the Tribunal is required to give effect to when determining the remuneration of office holders.

Statutory and Other Offices Remuneration (Judicial and Other Office Holders) Amendment Regulation 2013 (2013-427) — published LW 9 August 2013

The object of these Rules is to amend the Uniform Civil Procedure Rules 2005 to give effect to certain recommendations made by the New South Wales Law Reform Commission in its report entitled Security for costs and associated costs orders, Report 137 (2012).

Uniform Civil Procedure Rules (Amendment No 61) 2013 (2013-421) — published LW 9 August 2013

The object of these Rules is amend rule 10.20 of the Uniform Civil Procedure Rules 2005 to make it clear that the requirements set out in that rule, concerning how originating processes are to be served, extends to the service of amended statements of claim where the defendant to be served has not filed either a notice of appearance or notice of defence.

Uniform Civil Procedure Rules (Amendment No 62) 2013 (2013-422) — published LW 9 August 2013

Bills passed by both Houses of Parliament

The object of this Bill is to amend the Law Enforcement and National Security (Assumed Identities) Act 2010 to require that applications for orders to make or cancel entries for assumed identities in the Births, Deaths and Marriages Register be heard in chambers and to make it clear that ASIO and ASIS may apply for these orders.

Law Enforcement and National Security (Assumed Identities) Amendment Bill 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.