Australia: Government Bulletin - 28 January 2015

Last Updated: 1 February 2015
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

The New South Wales Information Commissioner Elizabeth Tydd has tabled a report in Parliament on the operation of the Government Information (Public Access) Act 2009 (GIPA Act) for 2013-2014. The GIPA Act recognises that the right of access to information is not limited to the release of information upon formal application, accordingly it examines all four information release pathways – mandatory proactive release, authorised proactive release, informal release and access applications – in relation to the GIPA Act's objective of early and proactive release of information.

The key findings include:

  • high levels of compliance with mandatory proactive release in the Council sector (89%) and the Government sector (84%);
  • consistent information release rates compared to 2010-2013 (74%), constant refusal rates (8%) and an increase in decisions varied by internal review to 72%;
  • agency internal reviews (access applications) continue to be the preferred channel of review (75%);
  • lower levels of compliance with authorised proactive release across all sectors (64%);
  • levels of agency timeliness have decreased in dealing with access applications (80%); and
  • the percentage of deemed refusals of invalid applications has reverted to 2011-2012 level (15%).

Two cases considering the GIPA Act decided in January 2015 are summarised below.

Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5

Mr Singh made three separate requests for information from Legal Aid NSW under the GIPA Act, which were denied by Legal Aid NSW for several reasons. The Tribunal agreed with the respondent's decision to refuse access to documents relating to their decision to engage a private law firm to handle Mr Singh's employment matters, including his return to work, on the basis that the application would require an unreasonable and substantial diversion of the agency's resources. On this point, it held that Legal Aid NSW's estimate of the time taken to locate the documents was reasonable. Further, in deciding whether to deal with the application, it held that the agency was entitled to take into account other related requests that the applicant had made (s 60(3) of the GIPA Act).

In relation to Mr Singh's request for documents relating to his workers compensation claim and his personal grievance complaint, the respondent provided access to some information, provided access to a redacted version of some material but declined to provide access to other material on the basis of overriding public interest against its disclosure. The Tribunal generally agreed with the respondent's refusal to provide access to information on the basis that some items were privileged, contained personal information, may prejudice legitimate business, commercial, professional or financial interests and may prejudice the supply of confidential information. However, on the issue of the competitive commercial value of information, the Tribunal noted that documents outlining the selection criteria for engaging external legal services providers would not place the respondent at a competitive disadvantage. Therefore, there was no overriding public interest against the disclosure of such information.

Abdelaziz v StateCover Mutual Ltd [2015] NSWCATAD 1

Mr Abdelaziz applied to StateCover Mutual Ltd for access to certain information held by it in relation to a workers' compensation claim. When the respondent did not make a decision on the application within the prescribed time, the applicant lodged an application with the Tribunal on the basis of deemed refusal within the meaning of s 63 of the GIPA Act. A preliminary issue arose for determination as to whether the respondent was an "agency" for the purposes of the GIPA Act.

A person seeking access to information has a legally enforceable right to be provided with it under the GIPA Act only if the information is "government information." That phrase is defined by s 4 as "information contained in a record held by an agency." An agency is defined as being a public authority (s 4(1)(c)). Under Schedule 4 Cl 2(3), an incorporated company or Association is excluded from the definition of "public authority." It was held that as the respondent was an insurer approved and regulated by APRA and was an unlisted public company, it could not be a public authority or agency within the meaning of the GIPA Act. Accordingly it was held that the information sought by the applicant was not "government information" and the statutory obligation to grant access did not apply to the respondent.

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In the media

Removing barriers to justice in NSW
The NSW Government has released a discussion paper debating potential whether the Limitation Act 1969 should be amended, and the public are invited to have a say on plans to remove or reduce the legal time limit in which survivors of child sexual abuse can sue for damages (23 January 2015) Removing barriers to justice

FWA verdict: Public servants cannot demand discretionary leave
Australian Public Service bosses have the legal right to refuse demands from staff for paid "discretionary" time off work, the industrial tribunal has ruled. The Fair Work Commission made the ruling in the case of a federal public servant's legal bid to force his bosses to give him months of "discretionary" leave (23 January 2015) More...

Government siege inquiry may undermine coronial inquest, former coroners say
A joint government inquiry into the Sydney siege may contradict the findings of an independent coronial inquest, confusing the public about the truth behind the tragedy, former NSW coroner John Abernethy says (23 January 2015) More...

ICAC: Margaret Cunneen High Court battle puts dozens of ICAC findings in doubt
The High Court battle between the NSW corruption watchdog and Crown prosecutor Margaret Cunneen has implications for at least three future inquiries and dozens of past corruption findings, the court has been told (23 January 2015) More...

New watchdog for the NSW legal profession
Attorney General Brad Hazzard today announced the appointment of award winning solicitor John McKenzie as the new Legal Services Commissioner for NSW. Mr McKenzie will begin a four year term as Legal Services Commissioner on 4 March 2015 (22 January 2015) New watchdog for the NSW legal profession [PDF, 86kb]

ICAC says proposed data retention laws will help stop corruption, but expert worried by lack of detail
Proposed new data retention laws could help crack down on corruption as well as crime, according to the Independent Commission Against Corruption (ICAC) in New South Wales (22 January 2015) More...

Judge dismisses bid by Teys Australia to stop Wagga Wagga developments
The abattoir operator argued in the Land and Environment Court that the Wagga Wagga City Council had not properly considered the development applications. In her judgment, Justice Pain says Teys was not able to establish enough evidence to warrant a judicial review (20 January 2015) More...

"D" Day for serial drink drivers: mandatory alcohol interlocks from 1 Feb - NSW
The NSW Government has made another critical step towards reducing drink driving with mandatory alcohol interlocks coming into effect from 1 February. The introduction of alcohol interlocks was a clear indication the NSW Government was committed to protecting the lives of motorists by cracking down on serial drink driving offenders (18 January 2015) More...

Lindt Café siege inquest opening - NSW
The inquest into the deaths of Katrina Dawson, Tori Johnson and Man Monis at Martin Place will open on 29 January. State Coroner Michael Barnes will preside over the inquest. Counsel assisting the State Coroner, Jeremy Gormly SC, will outline a provisional list of issues the investigation and inquest will look at and provide some details of the results of the inquiries conducted to date (09 January 2015) Media Statement: Lindt Café siege inquest opening

Govts urged to give intellectually disabled people more say in decision-making in 2015
The federal and state governments are being urged to give people with intellectual disabilities more say in the design of the National Disability Insurance Scheme. Advocates for the disabled say their call is supported by recent recommendations from the Australian Law Reform Commission (16 January 2015) More...

In practice and courts

Australian Public Sector Anti-Corruption Conference: APSACC 2015
The fifth Australian Public Sector Anti-Corruption Conference (APSACC) will be held 17 to 19 November 2015 at the Brisbane Convention and Entertainment Centre, South Bank. More...

NSW ICAC: Public inquiry into allegations concerning former Ausgrid engineer starts Monday
The ICAC's public inquiry being held as part of its Operation Jarah investigation into allegations concerning former Ausgrid engineer Phillip Cresnar will commence next Monday, 19 January 2015 Public inquiry into allegations concerning former Ausgrid engineer starts Monday

NSW ICAC:Operation Jarah witness list - week commencing Monday 26 January 2015
Operation Jarah public inquiry witness list for the week commencing 26 January 2015.. Please note that this list is subject to change. Operation Jarah witness list - week commencing Monday 26 January 2015

High Court New Practice Direction - Applications for Leave, Special Leave and Removal
The High Court has made available Practice Direction No 1 of 2015 - Authorities (2 January 2015)

Dispute resolution
Australasia's two largest membership organisations for ADR practitioners, LEADR and the Institute of Arbitrators and Mediators Australia (IAMA) made the historic decision to become a single entity. The members of both organisations voted overwhelmingly to proceed to a single, integrated body on 1 January 2015. See details here.

Integrity in government: issues and developments in New South Wales, 2011-2015 - NSW Parliamentary Research Service
The main concern of this paper is to review the reforms introduced over the life of the 55th NSW Parliament, from 2011 to 2015, policy and legislative in nature, intended to address concerns about integrity in government (20 January 2015) More...

Published – articles, papers, reports

Government Information (Public Access) Act 2009: 2013 – 2014 report
While the 2013 – 2014 Report provides some positive results, Ms Tydd acknowledged that there is still work to be done to promote access to information and achieve the objects of the Act (15 January 2015) Download a copy of the Government Information (Public Access) Act 2009: 2013 – 2014 report


BFU v Children's Guardian [2015] NSWCATAD 6
ADMINISTRATIVE LAW – child protection –working with children check clearance – application for an enabling order – applicant a disqualified person by reason of his convictions, in 2006, of one count of possessing child pornography and one count of aggravated indecent assault of a person under the age of 16 years – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children More...

Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5
Government information - public interest considerations against disclosure - conclusive presumption - legal professional privilege - false or unsubstantiated allegations about a person that are defamatory - personal information - operation of agencies – confidential information – whether prejudicing any person's legitimate business, commercial, professional or financial interests – whether prejudicing the supply to an agency of confidential information – whether prejudicing the effective exercise of that agency's functions.
Administrative Decisions Tribunal Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009 More...

Abdelaziz v StateCover Mutual Ltd [2015] NSWCATAD 1
Application dismissed for want of jurisdiction. GOVERNMENT INFORMATION (PUBLIC ACCESS) -- jurisdiction – what is an "agency" – StateCover Mutual Ltd not an agency.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009; Government Information (Public Access) Regulation 2009 More...

Teys Australia Southern Pty Limited v Burns [2015] NSWLEC 1
JUDICIAL REVIEW - meaning of proposed instrument in context of s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 – whether proposed instrument considered in council assessment of subdivision development application – whether failure to properly consider public interest issues including planning history of area in council assessment of subdivision development application Environmental Planning and Assessment Act 1979 Pt 3 Div 4, s 79C, s 80, s 117, Pt 3A (repealed); Environmental Planning and Assessment Regulation 2000; Wagga Wagga Local Environmental Plan 2010 More...

Delmege & Anor v Chief Commissioner of State Revenue [2014] NSWSC 1865
STATUTORY INTERPRETATION - savings and transitional provisions - State Revenue Legislation Further Amendment Act 2003 (NSW) Schedule 4 cl 13 - whether transitional provisions had effect of continuing to apply provisions of the Land Tax Management Act 1956 (NSW) as in force immediately before 31 December 2003 to determine availability of s 10T concession More...

Attorney General for the State of New South Wales v XY [2014] NSWCA 466
STATUTORY INTERPRETATION - resolving inconsistency between provisions in a single statute - provisions introduced contemporaneously - reading statute as a whole - giving each provision work to do - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43, s 47(3) More...


New Proclamation - Bail Amendment Act NSW
The Bail Amendment Act 2014 No. 52 (NSW) has been proclaimed by Statutory Rule 2015 No. 12 (NSW) to commence on 28 January 2015.

Consequential Commencement - Bail Regulation NSW
The Bail Amendment (Bail Eligibility Information) Regulation 2014 No. 814 (NSW), which amends the Bail Regulation 2014 No. 25 (NSW), will commence on 28 January 2014, as a consequence of the commencement of Schedule 1(6) of the Bail Amendment Act 2014 No. 52 (NSW).

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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