On 15 April 2016, the Supreme Court of NSW Court of Appeal handed down the decision of Botany Bay City Council v Minister for Local Government [2016] NSWCA 74, relating to the proposed amalgamation of Botany Bay and Rockdale City Councils. The decision considered whether the Delegate was required to consider a council initiated amalgamation proposal, when assessing a proposal for amalgamation by the Minister for Local Government (Minister).
Background
On 18 December 2015, the Minister informed Botany Bay Council (Council) of a potential amalgamation with Rockdale City Council. On 6 January 2016, the Minister's proposal was referred to the Departmental Chief Executive for examination and report. On the same day, the Departmental Chief Executive delegated his functions to the Delegate.
The Delegate invited the Council's representatives to meet to discuss and to make any submissions on the proposal before 28 February 2016 (which the Council provided). The Council also provided an addendum to the submissions on 3 March 2016.
On 11 March 2016, the Council lodged its own amalgamation proposal with the Minister and asked that it be urgently referred to the Delegate (Council Proposal). On 18 March 2016, a representative of the Minister notified the Council that the Council Proposal had been referred to the Departmental Chief Executive.
On 21 March 2016, the Council's solicitors sought confirmation from the Departmental Chief Executive that the Council Proposal had been referred to the Delegate and also wrote directly to the Delegate enclosing the Council Proposal.
Land and Environment Court and Court of Appeal decision
The Council applied to the Land and Environment Court seeking orders requiring the Delegate and Departmental Chief Executive to consider the Council Proposal in assessing the Minister's proposal for amalgamation. Justice Pain of the Land and Environment Court dismissed the Council's application, finding that the Departmental Chief Executive or Delegate could not consider any matter that did not go directly to the precise terms of the Minister's proposal i.e. the first proposal for amalgamation.
The Council subsequently appealed to the NSW Court of Appeal, arguing that the Council Proposal was a mandatory consideration when considering the Minister's proposal and there would be a denial of procedural fairness if the Council Proposal was not considered in this way.
The NSW Court of Appeal held that the Local Government Act 1993 (NSW) does not require that the Delegate and Departmental Chief Executive take the Council Proposal into account when examining and reporting on the Minister's proposal. The NSW Court of Appeal also held that there would be no procedural unfairness if the Delegate failed to consider the Council Proposal.
The Council's application was accordingly dismissed with costs.
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
Crownbet Convicted of Illegal Advertising
CrownBet has been prosecuted by Liquor & Gaming NSW and convicted on five counts of publishing illegal betting advertising that offered inducements for NSW residents to gamble (22 April 2016) More...
Supreme Court forces NSW government to hand over council merger report
Ku-ring-gai Council, Sydney's North Shore, has forced the Baird government to hand over a report on its proposed merger with Hornsby Council, with Mayor Cheryl Szatow pronouncing the report "superficial and misleading" and a foregone conclusion (20 April 2016) More...
Lockouts and Last Drinks
A forthcoming BOCSAR report examines the monthly count of non-domestic assaults recorded by the NSW Police since January 2009 to June 2015. The report finds statistically significant reductions in the number of non-domestic assaults in the Kings Cross Precinct (down 45.1%) and Sydney CBD Entertainment Precinct (down 20.3%) More...
A/G Australian Information Commissioner reappointed
The Attorney-General, Senator the Hon George Brandis QC, has reappointed Timothy Pilgrim PSM as Acting Australian Information Commissioner from 19 April 2016 to 19 July 2016 (18 April 2016) More...
NSW crime prevention orders 'an attack on individual freedoms'
The NSW Bar Associations describes the State Government's push for new crime prevention orders as an "unprecedented attack on individual freedoms and the rule of law" (14 April 2016) More...
New network for privacy professionals launching this June
The OAIC will shortly establish a new Privacy Professionals Network (PPN) bringing together, for the first time, public and private sector privacy professionals in one network (11 April 2016) More...
In practice and courts
OAIC guide: Data Breach Response Plan
The guide explains how actions immediately after the discovery of a breach can be crucial to the success of a response. Quick responses can also substantially decrease the impact on affected individuals, which is vital to protecting your consumer confidence and reputation. See the Guide to developing a data breach response plan (11 April 2016)
Cyber Security Strategy
A significant initiative that will strengthen the legal profession's ability to protect their clients' confidential information, this Strategy sets the Government's philosophy and program for meeting the dual challenges of the digital age—advancing and protecting our interests online (21 April 2016) Cyber Security Strategy
ICAC: Public inquiry into corruption allegations concerning former Casino Boolangle LALC CEO
Public inquiry into corruption allegations concerning former Casino Boolangle LALC CEO
The ICAC will hold a public inquiry commencing on Wednesday 4 May 2016 as part of an investigation it is conducting into allegations concerning former Casino Boolangle Local Aboriginal Land Council (CBLALC) (22 April 2016) 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 22 April 2016 (22 April 2016) More...
ICAC: Operation Ricco public inquiry proposed to recommence 3 June
The ICAC's Operation Ricco public inquiry into allegations concerning former City of Botany Bay Council chief financial officer, Gary Goodman, is expected to recommence on Friday 3 June and continue for approximately one week (12 April 2016) More...
NSW: This month in committees
Upcoming hearings
Legislative Council committee system, # 1 (Fri 29).
Inquiries receiving submissions
Inquiry into First Review of the Compulsory Third Party insurance scheme, closes 13 May.
Reports
Government responses due
Local government in New South Wales (response due) (Fri 29)
NCAT Legal Bulletin Issue 1 of 2016
The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of January to March 2016 (18 April 2016) More...
New fact sheet on making a complaint about NCAT
The NSW Civil and Administrative Tribunal (NCAT) has publishedanew fact sheet and updated its policyon making acomplaintabout NCAT (24 April 2016)
See 'Complaints about NCAT' fact sheet [PDF, 104kB] and NCAT Policy 1 - Complaints [PDF, 90kB]
Published – articles, papers, reports
The Hon T F Bathurst AC, Chief Justice of NSW, 'Judicial Responses to Domestic Violence' (2016)
Bathurst CJ's paper presented to a panel on domestic violence at the Royal Australasian College of Surgeons, 11 April 2016. More...
The Hon T F Bathurst AC, Chief Justice of NSW, 'Statutory Commissions, Compulsory Examinations and Common Law Rights' (2016)
Bathurst CJ's paper presented as part of the Contemporary Issues in the Law Series at the UNSW Law School, 21 March 2016. More...
Did the 'lockout law' reforms increase assaults at The Star casino, Pyrmont?
NSW Bureau of Crime Statistics and Research: 20 April 2016
Neil Donnelly, Don Weatherburn, Kylie Routledge, Stephanie Ramsey, Nicole Mahoney
Examines trends in non-domestic assault in Pyrmont and The Star casino since the February 2014 reforms contained in the Liquor Amendment Act 2014 (popularly known as the 'lockout laws') were implemented in central Sydney. More...
Serious Crime Prevention Orders
NSW Parliamentary Research Service: 13 April 2016; Chris Angus
This brief summarises existing organised crime laws in NSW, then outlines the proposed Serious Crime Prevention Orders (SCPO) regime in NSW, including the process for making orders, restrictions that can be placed on offenders, and penalties for breaches, as well as a comparison with the UK's SCPO regime. More...
Cases
Commissioner of Police, New South Wales v Guo [2016] FCAFC 62
PRIVILEGE – claim of public interest immunity made by Commissioner of Police (NSW) in respect of oral evidence in the Administrative Appeals Tribunal – whether common law public interest immunity applies to or in the Administrative Appeals Tribunal in respect of oral evidence sought to be adduced
ADMINISTRATIVE LAW – Administrative Appeals Tribunal – whether common law public interest immunity applies to or in the Administrative Appeals Tribunal in respect of oral evidence – claim of public interest immunity made by Commissioner of Police (NSW) in respect of oral evidence sought to be adduced More...
Botany Bay City Council v Minister for Local Government [2016] NSWCA 74
JUDICIAL REVIEW – grounds of review – mandatory relevant considerations in the examination and report of proposal for amalgamation of councils under the Local Government Act 1993 (NSW), ss 218F and 263 – whether Council proposal made under s 218F constituted a mandatory relevant consideration JUDICIAL REVIEW – grounds of review – procedural fairness in the examination and report of proposal for amalgamation of councils under the Local Government Act 1993 (NSW), ss 218F and 263 – whether denial of procedural fairness in Council proposal not being taken into account LOCAL GOVERNMENT – proposal for amalgamation of councils under the Local Government Act 1993 (NSW), ss 218D-218F – examination and report of proposal under ss 217F(2) and 263 – proper construction of s 263. More...
Viva Energy Australia Ltd v Northern Sydney Local Health District [2016] NSWCATAD 72
Government information - access application - whether public interest considerations against disclosure out weight the public interest considerations in favour of disclosure - prejudice a deliberative process of government - prejudice legitimate business and commercial interests. More...
BVU v Commissioner of Police, NSW Police Force [2016] NSWCATAD 75
Privacy and Personal Information Protection - jurisdiction More...
Smith v Pittwater Council [2016] NSWCATAD 67
Government Information Public Access - confidential information - personal information - information provided to an agency in confidence - whether expected expose a person to risk of harm or of serious harassment or serious intimidation - balance of public interest considerations - sufficiency of search More...
Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86
GOVERNMENT INFORMATION (PUBLIC ACCESS) – Rehearing – Review of agency determinations refusing information – Whether effect on audit functions of agency gave rise to an overriding public interest consideration against disclosure of certain information requested – Whether decision justified that certain information requested was not held – Whether decision justified to refuse to confirm or deny that certain information requested is held by the agency because of an overriding public interest against confirming or denying that fact – Agency decision as to the set aside, and review application remitted for reconsideration in that regard. Government Information (Public Access) Act 2013, ss 12-15; s 58(1)(b), s 58(1)(d), s 58(1)(f). More...
Bayne v Department of Premier and Cabinet [2016] NSWCATAD 69
GIPA Act - Legal professional Privilege- Information withheld – Conclusive presumption against disclosure – Confidential manner of hearing and reasons – Whether context of information should be disclosed further bearing in mind release of majority of information More...
Legislation
Regulations and other miscellaneous instruments
Casino Control Amendment (Miscellaneous) Regulation 2016 (2016-195) — published LW 22 April 2016
Legal Profession Uniform General Amendment (Costs Disclosure) Rule 2016 (2016-196) — published LW 22 April 2016
Administrative Arrangements (Administration of Acts—Amendment No 1) Order 2016 (2016-184) — published LW 15 April 2016
Local Government (General) Amendment (Minimum Rates) Regulation 2016 (2016-186) — published LW 15 April 2016
Universities Governing Bodies (University of Sydney) Order 2016 (2016-194) — published LW 15 April 2016
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.
