Australia: Government Law Bulletin - 22 January 2014

Last Updated: 27 January 2014

In Warren Gibson NSW Fair Trading v Roberta Graham [2013] NSW SC 1909, his Honour Justice Harrison of the NSWSC has allowed an appeal from orders of the Local Court dismissing prosecutions for offences under the Home Building Act 1989 (HBA) commenced by an officer of NSW Fair Trading. Mr Gibson had brought a prosecution in the Local Court under section 14 of the Criminal Procedure Act 1986 (CPA) which allows proceedings for offences under an Act to be instituted by any person"unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class or persons". It was common ground that the HBA did not contain such an express conferral provision.

The Local Court had accepted Ms Graham's argument that the power to initiate prosecutions conferred on the Director General of Fair Trading (DG) under section 9 of the Fair Trading Act (FTA) and the power to delegate functions under the HBA conferred on the DG by section 8(1)(c) of the FTA were express conferral provisions for the purpose of section 14 of the CPA.

In the NSWSC Ms Graham's case was put differently, in that the HBA must be read as a whole and in context. When so construed it was said to express an intention that only the DG or his delegate could prosecute her for the offences in question. Accordingly, it was unnecessary to find a particular provision in the HBA. It was further submitted that an express conferral provision should be implied.

The Court held that an Act such as the HBA had to be "read as a whole and in proper context... if a fundamental right or entitlement were to be altered by the parliament then one might logically assume that such an intention would have been specifically incorporated by proper drafting in the Act and not left to be "expressly conferred by implication"". Accordingly, reading the HBA as a whole and in context, there was no express conferral of prosecutorial functions on any person, nor could any express conferral be implied. Although Mr Gibson did not have any delegated authority from the DG, the Court found he was entitled to prosecute offences under the HBA, due to the combined effect of sections 14 and 173 of the CPA. Section 173 CPA states that if a "police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence proceedings by issuing a court attendance notice and filing the notice".

Save the date - Wednesday 26 February 2014

Mark your diaries for our inaugural Government Lawyers seminar day on Wednesday 26 February 2014. An invitation with full details will be sent shortly.

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In the media

ICAC report on mining licences

NSW Premier Barry O'Farrell today announced the NSW Government will introduce legislation to cancel the exploration licences for Doyles Creek, Mt Penny and Glendon Brook (20 January 2014). More...

Renewed Public Interest Directions

The NSW Privacy Commissioner has renewed public interest directions made under section 41 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) and section 62 of the Health Records and Information Privacy Act 2002 (HRIP Act) (10 January 2014). More...

Local government review must lead to real change

The recommendation for statutory Joint Organisations of groups of councils must be implemented to get a more relevant regional approach to governance and to align with state government regional responsibilities, says Urban Taskforce CEO. The proposed boundaries of Joint Organisations are based on a clear logic and should be adopted by the government as soon as possible (08 January 2014). More...

Super Tribunal to start on 1 January 2014

Acting Minister for Justice Michael Gallacher announces that the NSW Civil and Administrative Tribunal (NCAT) will start on 1 January 2014. The government has integrated 22 of the State's tribunals and bodies into a new overarching tribunal that will provide a simple, quick and effective process for resolving disputes, supervising occupations and reviewing executive action. Further information can be found at: (01 January 2014).

In practice and courts

NSW Privacy Commissioner renewed public interest directions

The section 41 PPIP Act public interest directions commenced on 1 January 2014 and expire on 30 June 2015. The section 62 HRIP Act public interest direction commenced on 10 January 2014 and expires on 30 June 2015. In most public interest directions, the substance to allow agencies to undertake their activities without breaching the Information Protection Principles and Health Privacy Principles remains the same.

The section 41 PPIP Act public interest directions can be accessed here.

The section 62 HRIP Act public interest direction can be accessed here.

NSW Law reform Commission: Parole: Question Paper 6 released

As the next step in the parole reference, the Commission has released Question Paper 6: Parole for young offenders for public comment. The closing date for submissions is Friday, 31 January 2014.

NSW Inquiries receiving submissions

Inquiry into recommendations of the ICAC regarding aspects of The Code of Conduct for Members, the interest disclosure regime and a parliamentary investigator, closes 14 March.

Inquiry into Sentencing of child sexual assault offenders, closes 28 February.

Commencement of NCAT
The New South Wales Civil and Administrative Tribunal (NCAT), which consolidates 22 of the state's tribunals and bodies, commenced on 1 January 2014. NCAT enables [state tribunals] to exist as a network, rather than in isolation, which will improve their quality, consistency and transparency. People will have access to an internal appeals panel, which will provide quick and accessible reviews of most tribunal decisions. Applications lodged after 1 January 2014 must be lodged with NCAT.
Acting Justice Minister's media release

New Regulation - Civil and Administrative Tribunal - NSW
TheCivil and Administrative Tribunal Regulation 2013 has been made under the authority of the Civil and Administrative Tribunal Act 2013 No. 2 (NSW). The Regulation sets the circumstances and administrative process in which the Tribunal may vary or set aside a decision and sets out the practice and procedure in connection with the use of resolution processes to which parties to proceedings have been referred by the Tribunal. The Regulation commenced on 1 January 2014.


Anti gang laws in Australia

Author: NSW Parliamentary Research Service, No 5, December 2013

This Issues Backgrounder provides links to relevant legislation, cases, commentary and media reports. Its focus is on legislation containing measures such as control orders, and other anti-gang sanctions such as consorting offences, rules regarding the wearing of club colours and the licensing regimes for body art tattooing that have been enacted in both NSW and, more recently, in Queensland

Anti gang laws in Australia


Robinson-Murray v Consumer Trader & Tenancy Tribunal [2013] NSWSC 1914

ADMINISTRATIVE LAW - judicial review - appeal from decision of Consumer, Trader & Tenancy Tribunal - part of proceedings held in absence of party - whether plaintiff denied procedural fairness. More...

Warren Gibson NSW Fair Trading v Roberta Graham [2013] NSWSC 1909

ADMINISTRATIVE LAW - appeal from Local Court - application to quash orders made by magistrate - s 14 Criminal Procedure Act 1986 - whether common informer can prosecute proceedings pursuant Home Building Act 1989 - whether Home Building Act "expressly conferred" authority to prosecute proceedings on specified person or class of persons - meaning of "expressly conferred" - whether prosecutorial powers can be "expressly conferred" by implication on a specified person or class of persons - where no express conferral of prosecutorial powers - where error of law established. More...

Pedrana v NSW Racing [2013] NSWSC 2000

ADMINISTRATIVE LAW - STATUTORY CONSTRUCTION - interlocutory relief - alleged inconsistency between two State statutes or subordinate legislation - regime to be implemented involved abrogation of rights otherwise held - orders issued. More...

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.

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