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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  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  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
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  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
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  FCCA 1052 (9 August
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 
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)  NSWLEC
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
 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  NSWADT
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  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.
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.