Australia: NSW Government Bulletin - 3 June 2015

Last Updated: 8 June 2015
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

In our 22 April edition, we provided an outline of the NSW Land and Environment Court's (LEC) decision in Leichhardt Council v Geitonia Pty Ltd (No. 6) [2015] NSWLEC 51 where the LEC found the developer, a company director of the developer and the project manager to be liable for a breach of section 125(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). The offence related to the demolition of a building facade without development consent.

The LEC has now sentenced the three defendants, see: Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 (14 May 2015)

In sentencing, the LEC found that, among other things, the offence caused substantial environmental harm because it caused the loss of a facade which had heritage significance. In addition, the offence caused substantial harm by undermining the integrity of the "regulatory system of development control" and the objectives of the EP&A Act. A further aggravating factor was the financial gain in the sense of saving costs to the defendants in demolishing the facade rather than retaining it.

Gertos, the company director and the "alter ego of Geitonia and the guiding mind behind the offences" was fined $150,000, Geitonia (the company) was fined $50,000 and the GRC (the project manager) was fined $50,000. Having regard to the fact that Geitonia was a "one man company", the total penalty of $200,000 imposed on Mr Gertos and Geitonia was considered to be appropriate. The prosecutor's significant costs were also apportioned between the defendants.

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In the media

Rules to govern NSW and Vic lawyers locked in
The final version of the Legal Profession Uniform Rules has been released by the Legal Services Council. The new regulatory framework, which covers solicitors and barristers across NSW and Victoria, will take effect on 1 July (28 May 2015). NSW on track for common legal services market; Uniform Law To Cut Red Tape And Protect Consumers; Rules to govern lawyers in NSW and Victoria locked in

Sentences in NSW among the most severe in Australia
A recent study by the Judicial Commission of NSW poses the question "How do sentencing patterns in NSW compare with other jurisdictions?" The results of the study demonstrate that NSW is more punitive than other jurisdictions in Australia (27 May 2015) More... See Research Monograph 39.

NSW Criminal Courts Statistics 2014
The time taken to finalise criminal trials in the Higher Criminal Courts has increased considerably over the last few years, according to the annual Criminal Courts Statistics Report released today by the NSW Bureau of Crime Statistics and Research (28 May 2015) More...
See the report Sentencing in NSW: A cross-jurisdictional comparison of full-time imprisonment, here NSW Criminal Courts Statistics 2014

Decision to provide evidence in Operation Hale to the DPP
Since the NSW Parliament passed the Independent Commission Against Corruption Amendment (Validation) Act 2015 earlier this month, the ICAC has been considering its incomplete investigations to determine what, if any, action it should take with each outstanding matter (28 May 2015). Decision to provide evidence in Operation Hale to the DPP

Closing in on open Government
The Information Commissioner, Elizabeth Tydd has highlighted the importance of transparency, accountability and citizen engagement in laying the foundations for open government, stating Governments are progressively recognising and responding to the value placed on the right to information by codifying those rights in legislation (27 May 2015) More...

Margaret Cunneen inquiry: ICAC provides material to DDP to consider charges The Independent Commission Against Corruption has provided material for the NSW Director of Public Prosecutions to consider charges against one of its most senior prosecutors, Margaret Cunneen (27 May 2015) More...

Decision to provide evidence in Operation Hale to the DPP
Since the NSW Parliament passed the ICAC Amendment (Validation) Act 2015 earlier this month, the NSW ICAC has been considering its incomplete investigations to determine what, if any, action it should take with each outstanding matter (27 May 2015) More...

Higher fines, Increased Monitoring for Mines & Industry
The NSW Government announces the intention to increase planning penalty notices five-fold, enabling the Department of Planning & Environment to issue the toughest on-the-spot fines in the nation (18 May 2015) Higher fines, Increased Monitoring for Mines & Industry

In practice and courts

NCAT: Courts and C??rimes Legislation Amendment Act 2015
The Courts and Crimes Legislation Amendment Act 2015 was recently passed by the NSW Parliament and received assent on 15 May 2015. The Act amended the ?following legislation relevant to the NSW Civil and Administrative Tribunal (NCAT) outlined here (28 May 2015) More...

ICAC: Public inquiry into corruption allegations concerning NSW Rural Fire Service catering supply
Operation Vika public inquiry into allegations concerning corrupt payments related to the supply of catering and other products to the NSW Rural Fire Service (RFS) will now start Tuesday 2 June 2015 (28 May 2015) Public inquiry into corruption allegations concerning NSW Rural Fire Service catering supply and other matters to start 2 June

ICAC: Operation Tunic witness list
Witness list last updated Thursday 28 May 2015, c. 4:00 pm. Please note that witness lists are subject to change (28 May 2015) Operation Tunic witness list

ICAC: ICAC prosecution outcomes and updates
Tables featuring information on ICAC-related prosecutions and briefs with the DPP. Last updated Thursday 21 May 2015 (21 May 2015) on ICAC-related prosecutions and briefs with the DPP. Last updated Thursday 21 May 2015 ICAC prosecution outcomes and updates

Public inquiry into allegations concerning former Mine Subsidence Board manager resumes
The NSW ICAC Operation Tunic public inquiry into allegations concerning former Mine Subsidence Board (MSB) Picton office district manager, Darren Bullock, will recommence next Monday 25 May 2015 (22 May 2015) More...

NSW Inquiries receiving submissions
Inquiry into Companion Animal Breeding Practices in New South Wales, closes 15 June.
Inquiry into Local government in NSW, closes 5 July.

NSW Government responses
Sentencing of child sexual assault offenders (response received) (Thu 14).
The Promotion of False or Misleading Health-Related Information or Practices (response received) (Wed 27).

NSW Supreme Court: Practice Note - Citation of Authority
Chief Justice Tom Bathurst has issued Practice Note No. SC Gen 20 - Citation of Authority (15 May 2015). The practice note applies to the citation of authorities in proceedings in the Supreme Court, Court of Appeal and Court of Criminal Appeal, "subject to Practice Note SC CA 1 Court of Appeal and SC CCA 1 Court of Criminal Appeal - General". Supreme Court's media release (15 May 2015)

NSW Supreme Court Practice Note - Real Property List
The Supreme Court has released e Supreme Court Practice Note SC EQ 12 - Real Property List (20 May 2015). The Supreme Court has also announced that the Chief Justice has appointed Justice Rowan Darke to be the List Judge of the Real Property List. The practice note will commence on 1 June 2015. Supreme Court's media release (20 May 2015)

Published – articles, papers, reports

Judicial Commission of New South Wales Civil Trials Bench Book: Update 27
Update released on 21 May 2015 More...

E-cigarettes: regulatory and policy options
NSW Parliamentary Research Service, May 2015, e-brief 4/2015
Electronic cigarettes (e-cigarettes or ENDS) are designed to deliver nicotine and/or other chemicals to the user via an aerosol vapour through devices designed to simulate the act of smoking tobacco cigarettes. They are currently the subject of legislative amendment and public debate. E-cigarettes: regulatory and policy options

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate
NSW Parliament Briefing Paper 4/2015, May 2015
The main purpose of this Briefing Book is to provide Members of Parliament, new Members in particular, with a brief but authoritative account of key issues in NSW politics, providing relevant context and legislative history Research Paper - Key Issues for the 56th Parliament

The 2015 NSW prison population forecast
NSW Bureau of Crime Statistics and Research: 18 May 2015
Neil Donnelly, Imogen Halstead, Simon Corben, Don Weatherburn
The aim of this brief is to provide short and long term forecasts of growth in the NSW prison population. More...

New South Wales custody statistics: quarterly update March 2015
NSW Bureau of Crime Statistics and Research: 18 May 2015
This report presents 24 months of reception, discharge and custody population data and comparisons between the current and previous quarter for age, gender, indigenous status, most serious offence and the average length of stay. More...


Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51
DEVELOPMENT CONSENT – prosecution of developer/landowner company, its owner/controller, and its project manager for demolishing the façade of a building without development consent where development consent was required under a local environmental plan and contrary to the terms of a development consent that had been issued–whether on the proper construction of the consent the demolition was permitted – if so, whether the conduct of the demolisher should be attributed to the defendants – if so, whether there is a defence of necessity based on the condition of the façade. More...

Office of Local Government v Petty [2015] NSWCATOD 46
Local Government Councillor – discipline - pecuniary interest in matter- disclosed interest but participated in debate and voted More...

Kitson v Manly Council [2015] NSWCATAD 102
ADMINISTRATIVE REVIEW – access to information-whether resources reasonably available to facilitate the retrieval of information stored electronically were used- whether the agency holds the information-whether creation of new information or a new record or an update of a record was required; Government Information (Public Access) Act 2009 More...

Raven v The University of Sydney [2015] NSWCATAD 104
ADMINISTRATIVE REVIEW - government information - public access – public interest considerations in favour of disclosure – enhance government accountability – contribute to positive and informed debate – substantiate that an agency has engaged in negligent conduct - prescribed public interest considerations against disclosure - prejudice the supply of confidential information - prejudice the effective exercise of an agency's functions - disclose information provided in confidence - undermine competitive neutrality in connection with an agency's functions - prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results GOVERNMENT INFORMATION – application by agency for Tribunal to hear and receive argument in absence of the public and the applicant - confidentiality orders – satisfaction that it is desirable to make orders by reason of confidential nature of evidence More...



Regulations and other miscellaneous instruments

Legal Profession Uniform Admission Rules 2015 (2015-240) — published LW 27 May 2015 The object of these Rules is to provide for aspects of admission to the legal profession in participating jurisdictions including specifying the academic qualifications prerequisite and practical legal training prerequisite for admission; accrediting and reaccrediting law courses and providers of practical legal training and procedural requirements for admission to the legal profession.

Legal Profession Uniform Conduct (Barristers) Rules 2015 (2015-243) — published LW 27 May 2015 The object of these Rules is to ensure that barristers: (a) act in accordance with the general principles of professional conduct; (b) act independently; (c) recognise and discharge their obligations in relation to the administration of justice; and (d) provide services of the highest standard unaffected by personal interest.

Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 (2015-241) — published LW 27 May 2015
The objective of these Rules is to set out provisions contemplated by the Uniform Law relating to continuing professional development for barristers.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 (2015-242) — published LW 27 May 2015
The objective of these Rules is to provide the minimum requirements for continuing professional development for solicitors

Legal Profession Uniform General Rules 2015 (2015-246) — published LW 27 May 2015
The objective of these Rules is to set out provisions contemplated by the Uniform Law (other than provisions that are or may be included in the Admission Rules, the Legal Practice Rules, the Legal Profession Conduct Rules or the Continuing Professional Development Rules).

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (2015-244) — published LW 27 May 2015
The objective of these Rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules.

Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (2015-245) — published LW 27 May 2015 The object of these Rules is to regulate aspects of legal practice by solicitors.

Crimes (Administration of Sentences) Amendment (Access to Money) Regulation 2015 (2015-216) — published LW 22 May 2015
The object of this Regulation is to allow money to be paid into an extreme high risk restricted inmate's account if that payment is authorised by the Commissioner of Corrective Services. (Currently, extreme high risk restricted inmates are not allowed to receive any money directly or into their accounts (other than money paid to inmates by the Commissioner), and any such money is required to be returned to the sender or confiscated.)

Evidence (Audio and Audio Visual Links) Regulation 2015 (2015-218) — published LW 22 May 2015
Specifically, the Regulation: exempts an accused detainee from the requirement in s. 5BA (1) of the governing Act to appear physically before a New South Wales court in certain proceedings relating to bail

Photo Card Amendment (Fees and Penalty Notice Offences) Regulation 2015 (2015-222) — published LW 22 May 2015 The objects of this Regulation are: (a) to increase the fees for Photo Cards, and (b) to increase the penalties for offences dealt with by way of a penalty notice issued under the Photo Card Act 2005.

Public Authorities (Financial Arrangements) Amendment (Lifetime Care and Support Authority) Regulation 2015 (2015-223) — published LW 22 May 2015
The object of this Regulation is to amend the Public Authorities (Financial Arrangements) Regulation 2013 to extend the investment powers of the Lifetime Care and Support Authority so that it can make, in respect of funds for which an approved funds manager is engaged, investments of any kind.

Public Health (Tobacco) Amendment (Advertising) Regulation 2015 (2015-224) — published LW 22 May 2015
The object of this Regulation is to make an amendment in relation to tobacco advertising that is consequential on the repeal of section 16(3)(c) of the Public Health (Tobacco) Act 2008 on 1 June 2015.

Bills introduced Government

Legal Profession Uniform Law Application Legislation Amendment Bill 2015
Statute Law (Miscellaneous Provisions) Bill 2015

Bills revised following amendment in Committee
Public Health (Tobacco) Amendment (E-cigarettes) Bill 2015

Proclamations commencing Acts
Public Health (Tobacco) Act 2008 No 94 (2015-214) — published LW 22 May 2015

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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