Australia: NSW Government Bulletin - 1 July 2015

There are probably no two more universal aspects of practice for Government lawyers than dealing with subpoenae and claims of privilege. In this edition we look at two recent decisions involving local councils dealing with just such issues.

In Sutherland Shire Council v Benedict Industries Pty Ltd (No 5) [2015] NSWLEC 103 her Honour Justice Pepper considered an application by the Council for its reasonable losses and expenses in compliance with certain paragraphs of a subpoena issued by Benedict. This was in circumstances where the Council had in three separate proceedings charged Benedict with five environmental offences.

The issue for consideration for the Court was whether Rule 33.11(1) of the Uniform Civil Procedure Rules 2005 (UCPR), which provides that the Court may order the issuing party of a subpoena to pay the amount of any reasonable loss or expense incurred by the receiving party in complying with the subpoena, had been supplanted by section 257B of the Criminal Procedure Act 1986 (the CPA) which provides that a Court may order an accused person to pay the prosecutor's costs if either the Court convicts the accused person of an offence or the Court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

The Court considered whether the beneficial power contained in earlier delegated legislation (Rule 33.11(1)) was inconsistent with the power containing a prohibition enacted in a subsequent statute (section 257B) where the latter power did not expressly repeal or override the earlier. The Court held that there was an inconsistency and that Rule 33.11(1) must cede to the prohibition contained in section 257B of the CPA.

This decision does not prevent a prosecutor from seeking its reasonable losses and expenses in complying with a subpoena at the conclusion of a trial should it be successful.

In Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 Senior Member McAteer upheld the Council's decision to withhold some information sought under a GIPA request in circumstances where the Council had determined that there was an overriding public interest against disclosure.

The documents withheld by the Council were described as falling into two categories, "public interest consideration against disclosure" documents and "legal professional privilege" documents.

The applicant's argument as to why privilege should not attach was that the employee of Local Government New South Wales (LGNSW) who provided the advice in question, whilst holding a practising certificate, was not employed as a legal officer or a solicitor by LGNSW, rather he was employed as an industrial officer. The industrial officer held a restricted practising certificate however there was another lawyer employed by LGNSW who held an unrestricted practising certificate such that the work performed by the industrial officer was supervised and covered by the unrestricted practising certificate of the more senior officer.

The Senior Member noted that no evidence had been tendered which indicated that any of the communications between the Council and the industrial officer related to any issue other than the apparent provision of legal advice. In these circumstances, the Senior Member found that the claimed material fell within the definition and description of material which could be subject to a valid claim of legal professional privilege and that there was a conclusive presumption of an overriding public interest against disclosure of the material subject to the legal professional privilege claim.

The Senior Member's consideration of the status of the industrial officer and of his supervision as well as the nature of communications between the Council and the industrial officer highlight the difficulties that can arise when lawyers with practicing certificates carry on dual roles. This is likely to be an increasing area of challenge in an environment where Government lawyers are being asked to do more with less.

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

ICAC finds former university IT manager corrupt
The ICAC has found that former university information technology manager Brett Roberts engaged in corrupt conduct by dishonestly exercising his public official functions through authorising or certifying the payment of false invoices which resulted in him receiving over $86,000 in corrupt payments (25 June 2015). More...

Tough new laws for child sex offenders in NSW
Child sex offenders will now face tougher sentences under legislation passed by the NSW Parliament, and include additional child sex offences in the Standard Non-Parole Period (SNPP) Scheme. Ms Upton said the legislation will help ensure sentences better align with community expectations (24 June 2015). More... More...

Budget making justice faster and easier – NSW
The 2015-16 NSW Budget includes significant investment in building new and improving existing courts, expanding the use of technology in the justice system and giving more support to child sexual assault victims. Ms Upton said the NSW Budget 2015-16 will make access to justice in NSW faster, fairer and easier (23 June 2015). More... More...

Local Government Minister examines request for judicial review into Wyong Council
Local Government Minister Paul Toole confirmed on Monday he had received a written request from Wyong state Labor MP David Harris for an inquiry into the council and forwarded it on to the Office of Local Government for "due consideration" (23 June 2015). More...

NSW budget 2015: Consumer privacy protections improved as data sharing increases
Consumer privacy protections will be improved as the state government increases the amount of digital data it shares between different departments (23 June 2015). More...

Public have their say on a Domestic Violence Disclosure Scheme for NSW
Following the consultation, the NSW Government will finalise the model for the NSW Countering Violent Extremism Early Intervention scheme, which will be piloted in four Police Local Area Commands (22 June 2015). More... More...

ICAC: Public inquiry into corruption allegations concerning Department of Justice courthouse refurbishment contracts
The ICAC will hold a public inquiry starting on 22 June 2015 as part of an investigation it is conducting into corruption allegations concerning the abuse of procurement processes by a Department of Justice Asset Management Branch senior officer in awarding contracts to refurbish NSW courthouses in 2013 (12 June 2015). More...

In practice and courts

ICAC: Operation Yancey witness list
Witness list for Monday 29 June 2015. Please note that witness lists are subject to change (25 June 2015). More...

ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 25 June 2015 (25 June 2015). More...

Election Funding, Expenditure and Disclosures (Adjustable Amounts) Amendment Notice 2015 – NSW
The New South Wales Electoral Commission, in pursuance of Schedule 1 to the Election Funding, Expenditure and Disclosures Act 1981, gives the following Notice (19 June 2015).

NCAT: Updated Guardianship Division forms and fact sheets
The Courts and Crimes Legislation Amendment Act 2015 commenced on 15 May 2015 and included amendments to legislation affecting the operation of NCAT's Guardianship Division (19 June 2015). More...

NSW Judicial Commission
Local Court Bench Book: Update 115 Jun 26, 2015
Civil Trials Bench Book: Update 28 Jun 25, 2015

NSW in committees June 2015

Inquiries receiving submissions
Inquiry into Reparations for the Stolen Generations in New South Wales, closes 27 September.

Reports
Legislation Review Digest No 1 of 2015 (Tue 23).

Government responses due
Loose fill asbestos insulation (response due) (Wed 17).

Government responses
Review of the inquiry into allegations of bullying in WorkCover NSW (response received) (Wed 10).

NSW Inquiries receiving submissions
Inquiry into Progress of the Ombudsman's investigation 'Operation Prospect', closes 15 June.

Upcoming hearings
Progress of the Ombudsman's investigation 'Operation Prospect', #2 (Fri 26).

NSW The House in Review
The House in Review provides regular updates of the activities of the New South Wales Legislative Council (The House in Review - Vol 56/5, 23-25 June 2015). More...

Published – articles, papers, reports

Building social cohesion in our communities: an online resource for local government
Australian Human Rights Commission; Australian Centre of Excellence for Local Government. This resource aims to assist local government to develop strong, culturally diverse and socially connected communities (24 June 2015). More...

Reform of the Federation: discussion paper 2015
Department of the Prime Minister and Cabinet (Australia). This discussion paper is a working draft. The Green Paper is yet to be finalised and is intended to be released later in 2015 after further discussions with the States and Territories. This paper asks whether the Federation provides the system of national governance that Australians need right now (23 June 2015). More...

Protests and the law in NSW
Tom Gotsis, NSW Parliamentary Research Service. This paper examines the laws that apply to protests in NSW, showing that it is the common law right to assembly that provides the legal basis of what is commonly called the right to protest (23 June 2015). More...

Implementing Auditor-General's Performance Audit Report Recommendations: NSW
NSW Government agencies have sound processes for implementing performance audit recommendations in Auditor-General's Reports to Parliament. There are many cases of good practice, but the audit found some cases where agencies can improve how they coordinate actions to address recommendations. Most agencies were not revisiting these actions to determine whether they remain appropriate (24 June 2015). More...

Cases

BSU v Workers Compensation Commission [2015] NSWCATAD 125
PRIVACY –personal information—jurisdiction of tribunal – judicial functions WORDS AND PHRASES – "tribunal". More...

Cunningham v NSW Ministry of Health [2015] NSWCATAD 124
ADMINISTRATIVE REVIEW – Access to information – Remittal of decision – Decision that agency does not hold information – Whether agency conducted reasonable searches for the information. More...

Hutchinson v Walcha Shire Council [2015] NSWCATAD 132
Government Information – Legal professional privilege - Public Interest considerations in favour of disclosure – Public interest considerations against disclosure – Weight of evidence – Quality of evidence – Undertakings – Objects to limit restriction of access – Whether guarantees and conditions on use of information appropriate in current form. More...

Sutherland Shire Council v Benedict Industries Pty Ltd (No 5) [2015] NSWLEC 103
STATUTORY CONSTRUCTION: whether later statute inconsistent with and therefore impliedly repealed earlier delegated legislation – applicable principles – implied repeal to the extent of the inconsistency – no power to award reasonable loss and expenses where applicant a prosecutor in criminal proceedings in the Court's summary jurisdiction. More...

Legislation

NSW

Regulations and other miscellaneous instruments

Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Regulation 2015 (2015-321) — published LW 26 June 2015

Government Property NSW Amendment (Transfer of Property) Order 2015 (2015-325) — published LW 26 June 2015

Heavy Vehicle (Adoption of National Law) Amendment (Penalties) Regulation 2015 (2015-326) — published LW 26 June 2015

Legal Profession Uniform Admission Amendment (Board) Rule 2015 (2015-328) — published LW 26 June 2015

Legal Profession Uniform General Amendment (Trust Account Statement and Examiners) Rule 2015 (2015-329) — published LW 26 June 2015

Legal Profession Uniform Law Application Regulation 2015 (2015-330) — published LW 26 June 2015

Legal Profession Uniform Regulations 2015 (2015-354) — published LW 26 June 2015

NSW Admission Board Rules 2015 (2015-353) — published LW 26 June 2015

Bills introduced Non-Government

Non-profit Bodies (Freedom to Advocate) Bill 2015

Bills revised following amendment in Committee

Child Protection Legislation Amendment Bill 2015

Public Health (Tobacco) Amendment (E-cigarettes) Bill 2015

Statute Law (Miscellaneous Provisions) Bill 2015

Bills passed by both Houses of Parliament

Crimes Legislation Amendment (Child Sex Offences) Bill 2015

Statute Law (Miscellaneous Provisions) Bill 2015

Proclamations commencing Acts

Legal Profession Uniform Law Application Act 2014 No 16 (2015-298) — published LW 19 June 2015

Legal Profession Uniform Law Application Legislation Amendment Act 2015 No 7 (2015-299) — published LW 19 June 2015

For the full text of Bills, and details on the passage of Bills, see Bills.

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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