Australia: NSW Government Bulletin - 2 March 2016

Last Updated: 11 March 2016
Article by Breellen Warry and Bianca Fernandes

Most Read Contributor in Australia, September 2017

A recent decision of the NSW Court of Appeal (Court) in Elachi v Council of the City of Shoalhaven [2016] NSWCA 16, highlights the importance of clear drafting for legislative drafters, particularly when considering the interrelationship between legislative instruments and sets out some key principles of statutory interpretation.

The case sets out a number of important statutory interpretation principles, including the following: 

  1. when dealing with inconsistency, regard should be given to the institutional setting in which the conflict arises, with a proper understanding of the functions of separate institutions and the relationship between them;
  2. the Environmental Planning and Assessment Act 1979 (EP&A Act) sets out a clear hierarchy of plans which must be taken into account when considering the inconsistency of provisions; and
  3. the primary purpose of the legislation should also be considered.

The case is a reminder of the limited application and scope of Development Control Plans (DCPs).  Councils need to exercise care when drafting DCPs, paying particular attention to section 74C of the EP&A Act.  Otherwise, the DCP or certain of its provisions can be held to be invalid. 

Lastly, the case highlights the necessity of clear drafting, particularly when prohibitions and exemptions rely on other legislative instruments.  The Court said that much confusion would have been avoided if clause 5.9(3) of the Shoalhaven Local Environmental Plan 2014 used the words "to which this clause applies" rather than "to which any such development control plan applies", the effect of which was to provide for a DCP which limited its own operation and formed the basis of the Appellant's argument.

Read more about the facts and the Court's decision here...

Government Lawyers half day conference - 17 March 2016
Holding Redlich and the Association of Corporate Counsel (ACC) invite you to attend an intensive half day conference on 17 March for those employed in the public sector. Please click  here to find out more and to RSVP.

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

Courts Consultation Committee established
​Attorney General Gabrielle Upton has announced the establishment of the Courts Consultation Committee to provide her with high-level advice on the NSW judicial system (26 February 2016). Courts Consultation Committee established

BOSCAR: Why is the NSW prison population still growing
The latest report indicates this is partly due to an increase in the percentage of convicted offenders given a prison sentence and partly due to the fact that police are more often initiating criminal proceedings against offenders who, if convicted, are likely to be imprisoned (26 February 2016).  More...

See full report: Why is the NSW prison population still growing? Another look at prison trends between 2011 and 2015

Centralised Monitoring System licence awarded
A licensee has been selected to operate the Centralised Monitoring System (CMS) that monitors gaming machines across NSW for a 15 year period. The competitive tender process was overseen by a government steering committee and underwent a rigorous assessment of financial, commercial, technical, legal and probity considerations (26 February 2016).  More...

Topbetta convicted of illegal gambling inducements
The NSW-based sportsbetting company, Topbetta, has been prosecuted by Liquor & Gaming NSW for publishing illegal advertising that offered NSW residents inducements to participate in gambling. (23 February 2016) Topbetta convicted of illegal gambling inducements

Limitation Periods for Bringing Child Abuse Claims to be Removed in NSW
On 16 February 2016, NSW Attorney General) introduced the Limitation Amendment (Child Abuse) Bill 2016 into the NSW Parliament which will permit child abuse actions to be brought at any time without regard to any limitation period under the current Limitation Act 1969 (NSW)Act (18 February 2016) More...

Justice for survivors of child sexual abuse
The NSW Government will introduce legislation today to make it easier for survivors of child abuse to access civil justice. The legislation is one part of the NSW Government's response to the Royal Commission into Institutional Responses to Child Sexual Abuse recommendations on redress and civil litigation (16 February 2016)  Justice for survivors of child sexual abuse

In practice and courts

ICAC: Public inquiry into coruption allegations concerning former City of Botany Bay Council chief financial officer
The inquiry into allegations concerning former City of Botany Bay Council chief financial officer, Gary Goodman, will start next Monday (29 February 2016).  Public inquiry into coruption allegations concerning former City of Botany Bay Council chief financial officer starts Monday

NCAT: Changes to review of GIPA Act decisions and privacy matters
The NSW Civil and Administrative Tribunal (NCAT) has introduced new procedures for applications about access to government information and privacy matters (24 February 2016).  Changes to review of GIPA Act decisions and privacy matters

NSW Parliament - This month in committees

Upcoming hearings
2016 Review of the Annual Reports of Oversighted Bodies (Mon 29).

Inquiries receiving submissions
Inquiry into Legislative Council committee system, closes 6 March.
Inquiry into Reparations for the Stolen Generations in New South Wales, closes 31 March.

Progress of the Ombudsman's investigation 'Operation Prospect' (report published) (Mon 22).
The conduct and progress of "Operation Prospect" (report published) (Mon 22).
Legislation Review Digest No 2 of 2016 (Tue 23).

Government responses due
Progress of the Ombudsman's investigation 'Operation Prospect' (response due) (Thu 25).

Government responses
Progress of the Ombudsman's investigation 'Operation Prospect' (response received) (Mon 22).
The conduct and progress of "Operation Prospect" (response received) (Mon 22).


Mehajer v Director-General of the Department of Local Government [2016] NSWSC 143
APPEAL – appeal against decision of NCAT – Civil and Administrative Tribunal Act 2013, sch 5 cl 29(2) – whether NCAT committed an error of law in holding that the plaintiff was obliged to disclose his pecuniary interest in property – Local Government Act 1993 (NSW), s 451   STATUTORY INTERPRETATION – words and phrases – "change of the permissible uses" – Local Government Act 1993 (NSW), s 448(g).  More...

Charles v Northern New South Wales Local Health District [2016] NSWIRComm 1004
UNFAIR DISMISSAL – casual employee – whistleblower – bullying and harassment – workers compensation claim – separation from casual pool – administrative process – no dismissal – application dismissed.  More...

CFA v Department of Family and Community Services [2016] NSWCATAD 32
PRIVACY APPLICATION – Application for extension of time to lodge application – Relevant principles – application granted. More...

Elachi v Council of the City of Shoalhaven [2016] NSWCA 15
STATUTORY INTERPRETATION – principles – relationship between provisions in different statutes of same polity – legislation creating hierarchy of instruments – functional approach to provisions conferring power on different authorities – legislation limiting need for dual authorisations   More...

Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] NSWLEC 6
JUDICIAL REVIEW – development consent for open cut coal mine – likely significant effect on threatened species of the koala – development application contained indication of likely significant effect – whether misdirection in giving or considering indication – consideration of impact on koala population including by koala translocation – whether failure to consider what was local population of koalas – condition of consent requiring koala plans of management – whether condition deferred consideration of impacts on koalas – whether failure to consider precautionary principle or principle of conservation of biological diversity and ecological integrity – application dismissed.  More...

Office of Local Government v Toma [2016] NSWCATOD 21
CIVIL AND ADMINISTRATIVE TRIBUNAL – Local Government Act – misconduct by Councillor who accessed other Councillor's official email accounts without permission – improper and unethical behaviour – sanctions imposed More...



Regulations and other miscellaneous instruments
Administrative Decisions Review Amendment (Exclusion from Internal Review) Regulation 2016 (2016-95) — published LW 26 February 2016
Criminal Procedure Amendment (Children's Champions) Regulation 2016 (2016-96) — published LW 26 February 2016
Children (Detention Centres) Amendment (Use of Force and Drug Testing) Regulation 2016 (2016-74) — published LW 19 February 2016
Crimes (Administration of Sentences) Amendment (Use of Force) Regulation 2016 (2016-75) — published LW 19 February 2016

Bill introduced Non-Government – 26 February 2016
Government Information (Public Access) Amendment (Sydney Motorway Corporation) Bill 2016

Bills introduced Government – 19 February 2016
Associations Incorporation Amendment (Review) Bill 2016
Government Sector Employment Legislation Amendment Bill 2016
Limitation Amendment (Child Abuse) Bill 2016

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