Australia: NSW Government Bulletin - 1 October 2014

Last Updated: 6 October 2014
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

Against the background of the resignations of Tim Owen, the Member for Newcastle and Andrew Cornwell, the Member for Charlestown on 12 August 2014 and the resignation of the Lord Mayor of Newcastle, Jeff McCloy on 17 August 2014, David Shoebridge MLC introduced a motion to the NSW Legislative Council for an inquiry into the planning process in Newcastle and the broader Hunter region.

The resignations came after revelations during the public hearings in Operation Spicer that Mr Owen and Mr Cornwell each accepted donations from Mr McCloy prior to the 2011 NSW election at a time when they each were Liberal candidates and Mr McCloy was a property developer.

A Select Committee, known as the Newcastle planning Committee (Committee), was established on 16 September 2014 and will be conducting the inquiry. The Committee will be chaired by Revd the Hon Fred Nile MLC and will include members of the Liberal Party, the Australian Labor Party and the Greens.

The terms of reference for the Committee include the role of the Department of Planning and Infrastructure, Newcastle City Council, UrbanGrowth NSW, Lake Macquarie Council and the Hunter Development Corporation in considering:

  • the State Environmental Planning Policy (SEPP) Amendment (Newcastle City Centre) 2014;
  • the Newcastle Urban Renewal Strategy;
  • the Whitebridge development plan in Lake Macquarie; and
  • the decision to terminate the Newcastle rail line at Wickham and any proposal to construct light rail including along Hunter and Scott Streets.

Submissions to the Committee opened on 24 September 2014 and will close on 24 October 2014. Public hearings will be held in Newcastle on 7, 21 and 24 November 2014.

The Committee is to report by 5 March 2015.

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. Membership is open to lawyers employed in the public sector.

In the media

Corrective Services NSW rejects claims regarding AA-classified inmates
CSNSW takes the management of its AA-classified inmates extremely seriously and is fully aware of its responsibilities to national security via the safe and secure management of such inmates. A CSNSW Custody and Sentence Planning report stated there are risks AA inmates may attempt to recruit others to terrorism or plot escapes, with these risks to be taken into account in managing AA inmates (21 September 2014) More...

Bail Act Reforms Pass Parliament - NSW
Changes to the Bail Act that will help safeguard the community and Act will also place a new onus on those accused of the most serious offences to show cause why they should not be detained. Even if the accused is able to show cause, they will still be remanded in custody if bail authorities determine there is an unacceptable risk (18 September 2014) More...

NSW Parliamentary inquiry to investigate planning decisions in Newcastle
A parliamentary inquiry will be set up to investigate controversial planning decisions in Newcastle and the Hunter Valley. The inquiry comes in the wake of an Independent Commission Against Corruption investigation into allegations Liberal MPs in the Hunter received illegal political donations from developers (16 September 2014) More...

In practice and courts

New Rule - High Court of Australia (09/09/2014)
The High Court of Australia Rule of Court (09/09/2014) (9 September 2014) was registered with the Federal Register of Legislative Instruments (FRLI) on 16 September 2014. The Rule of Court appoints the places and days of sittings for 2015 Further information from the FRLI

New Rules - High Court Amendment (2014 Measures No. 1)
The High Court Amendment (2014 Measures No. 1) Rules 2014 No. 139 (Cth) amend the High Court Rules 2004 No. 304 (Cth).
According to the explanatory statement, the objectives of the amending Rules are to:

  • amalgamate Parts 5 and 45 so that there will be one Part 5 ( Judiciary Act 1903 No. 6 (Cth)) - section 78B notice of a constitutional matter and section 78A notice of intervention) dealing with the filing and service of notices of a constitutional matter in all types of proceedings;
  • introduce a notice of intervention to be filed and served before any step is taken on behalf of an Attorney-General;
  • provide that any interlocutory applications, whether by represented or unrepresented parties, may, at the discretion of the Court or a Justice, be dealt with on the papers without a hearing;
  • substitute a new, simplified Schedule 2 (Fees for work done or services performed), which will apply to work done or services performed on or after 1 January 2015;
  • provide that where the amount allowed on taxation is varied more than one-sixth of the estimate, in favour of the party filing the notice of objection or dispute, the costs of the taxation must be paid in the amount and by the party directed by the Taxing Officer; and
  • make consequential and other related amendments, including transitional provisions.

Commencement details are contained in s. 2 of the Rules

New Bill - Crimes (High Risk Offenders) Amendment
The Crimes (High Risk Offenders) Amendment Bill 2014 (NSW) proposes to amend the Jury Act 1977 No. 18 (NSW). The Bill was introduced into the Legislative Assembly and received its second reading speech on 10 September 2014. According to the explanatory note, the objective of the Bill is to make amendments as a consequence of the creation of the category of emergency detention orders.

New Assent - Courts Legislation Amendment (Broadcasting Judgments) Act
The Courts Legislation Amendment (Broadcasting Judgments) Act 2014 No. 44 (NSW) was assented to on 17 September 2014 and amends the legislation listed below. The object of the Bill is to require the District Court and Supreme Court to permit the recording and broadcast of certain judgments given by those Courts in open court unless satisfied that one of a limited number of exclusionary grounds is present.

Judicial Commission of New South Wales - Local Court Bench Book: Update 112
Update 112 contains the following amendments: Specific penalties and orders, general orders and practice notes (September 2014) More...

NSW Sentencing Council: Bail - Additional show cause offences
The Attorney General has asked the Sentencing Council to consider a proposal to make amendments to the Bail Act 2013. Parliament recently passed the Bail Amendment Bill 2014, which introduces categories of offences for which bail must be refused unless an accused can 'show cause' why his or her detention is not justified. Submissions close on 31 October 2014. The Bail Amendment Bill 2014 can be found here.

New NCAT policy: publishing reasons for decisions
The NSW Civil and Administrative Tribunal (NCAT) has released a new policy about publishing Tribunal decisions. The Policy sets out the practices and considerations which apply to the publication of reasons for decisions made in the various NCAT Divisions and by the Appeal Panel (19 September 2014) More... See NCAT Policy - Publishing Reasons for Decisions [PDF, 53kB]

NCAT: Planning for end of life and making treatment decisions
Guardianship Division has recently been involved in a partnership project with the NSW Ministry of Health to develop a Planning Ahead resource for health professionals and the public about making important end of life decisions. These decisions can be difficult and involve a number of clinical, legal and ethical considerations. Visit the Planning Ahead End of Life Decisions, the Law and Clinical Practice website. (18 September 2014)

IPC NSW: Right to Know Week 2014
28 September 2014 to 5 October 2014
Right to Know Day is an annual event with the aim to increase awareness of individuals' right of access to government information and open, transparent governance. View more about this event »

Published – articles, papers, reports

Publishing and sharing sensitive data
Sarah Olesen; Australian National Data Service: 23 September 2014
This guide outlines best practice for the publication and sharing of sensitive research data in the Australian context Publishing and sharing sensitive data

A new approach to national child protection data: implementation of the Child Protection National Minimum Data Set
Australian Institute of Health and Welfare: 22 September 2014
Describes the development and implementation of the CP NMDS and highlights key new analyses able to be reported for the first time at the national level. It also outlines the need for ongoing development work. A new approach to national child protection data: implementation of the Child Protection National Minimum Data Set

Predictors of guilty pleas in the NSW District Court
Clare Ringland, Lucy Snowball; NSW Bureau of Crime Statistics and Research: 18 September 2014 Examines factors associated with early, late, and not guilty pleas in the District Court of NSW Predictors of guilty pleas in the NSW District Court

Criminal liability of carers in cases of non-accidental death or serious injury of children
Cases involving non-accidental death or serious injury of children can lead to prosecutions for offences such as murder, manslaughter, or assault. A difficulty arises in pursuing criminal proceedings in cases where the injury to the child could only have been inflicted by one of two or more persons who were at home with the child, but there is not enough evidence to prove which person was responsible (24 September 2014) Criminal liability of carers in cases of non-accidental death or serious injury of children


State of New South Wales v Talovic [2014] NSWCA 333
MENTAL HEALTH - confinement and restraint of mentally ill persons and similar orders - detention by police under s 22 of the Mental Health Act 2007 (NSW) - whether the prerequisites of that section were satisfied - construction of the undefined phrase "mentally disturbed" - whether a subjective test applies to the first prerequisite of s 22(1)
PROCEDURE - procedural fairness - whether the police officers were given an opportunity of dealing with potentially adverse findings by the trial judge in respect of their sworn evidence More...

Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327
ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - joinder of parties - Civil and Administrative Tribunal Act 2013, s 44 - necessary or proper parties - interests of a statutory applicant - functions and interests of the NSW Commissioner of Police under the Liquor Act 2007, s 116AE
ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - joinder of parties - whether decision-maker ought to be an active party to review - whether discretion to join parties to be determined by reference to whether decision-maker will be an active party to review More...

Gold and Copper Resources Pty Limited v Newcrest Mining Limited [2014] NSWLEC 148
JUDICIAL REVIEW - challenge to validity of respondent Minister's renewal of a mining exploration licence - motion for dismissal of proceeding on basis (inter alia) that issue estoppel or Anshun estoppel bars sole ground of judicial review stated in summons - applicant concedes - whether proceeding should be dismissed whilst applicant's notice to respondent Minister pursuant to UCPR r 59.9 to provide reasons remains unanswered - whether power under r 59.9 to make an order to provide reasons where the only ground of review stated in summons is barred by issue estoppel or Anshun estoppel - if power, whether discretion should be exercised More...

Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100
The respondent's decision to refuse the applicant's application for a contractor licence is affirmed.
ADMINISTRATIVE LAW - Home Building Act 1989 - Contractor licences - Experience in a wide range
Home Building Act 1989 (NSW); Home Building Regulation 2004
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW) More...

Health Care Complaints Commission v Parsons [2014] NSWCATOD 97
ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - Occupational division - health practitioners list - Complaint against a nurse - substance dependence - impairment - lack of competence - failure to report charges of and convictions for reportable criminal offences - criminal conviction - unsatisfactory professional conduct - cancellation of registration – costs More...

Hijazi v Commissioner of Police NSW Police [2014] NSWCATAD 148
Revocation of category G firearms licence affirmed; revocation of category A, B and H firearms licences set aside.
ADMINISTRATIVE LAW - Civil and Administrative Tribunal - firearms licensing More...




Criminal Records Amendment (Historical Homosexual Offences) Bill 2014

The object of this Bill is to amend the Criminal Records Act 1991 to enable certain convictions for a number of decriminalised homosexual conduct offences to be extinguished.

Bills passed by both Houses of Parliament

The object of this Bill is to provide for a preamble to the Bail Act 2013, to require bail for certain serious offences to be refused unless the accused person shows cause why his or her detention is not justified, to convert the current 2-step unacceptable risk assessment process that applies to all bail decisions into a one-step risk assessment and to require additional matters to be considered by a bail authority in applying the unacceptable risk test.

Bills assented to

Bail Amendment Bill 2014
Bail Amendment Act 2014 No 52 — Assented to 25 September 2014


Independent Commission Against Corruption Act 1988 - Independent Commission Against Corruption Amendment (Ministerial Code of Conduct) Regulation 2014 (2014-546) LW 21 August 2014

Commencement: 20/9/2014 (Whole)

The object of this Regulation is to prescribe an applicable code of conduct for NSW Ministers for the purposes of section 9 of the Independent Commission Against Corruption Act 1988.

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.

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Christine Jones
Kim Nguyen
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