Australia: NSW Government Bulletin - 3 August 2016

Last Updated: 8 August 2016
Article by Sylvia Fernandez (formerly with Holding Redlich), Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2018

Woollahra Municipal Council's challenge to the Minister's proposal for amalgamation fails

In its recent decision in Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 86, the NSW Land and Environment Court (Court) dismissed judicial review proceedings commenced by Woollahra Municipal Council (Woollahra) in connection with an amalgamation proposal by the Minister for Local Government (Minister). This decision further considers the statutory regime for council amalgamations, as touched on in our earlier case note regarding the decision in Botany Bay City Council v Minister for Local Government [2016] NSWCA 74.

Background

On 6 January 2016 the Minister made a proposal under section 218E(1) of the Local Government Act 1998 (NSW) (Act) to amalgamate Randwick City Council (Randwick) and Waverley Council (Waverley) with Woollahra (Proposal). While Randwick and Waverley supported the Proposal, Woollahra was opposed and sought to challenge the legality of certain steps in the process for amalgamation and to restrain the Minister from recommending that the Proposal be implemented.

Procedural Framework

The Proposal was referred to the Acting Chief Executive of the Office of Local Government (Executive) who delegated their function to the delegate (Delegate). The Delegate gave public notice and held an inquiry into the Proposal (Inquiry). The Delegate then undertook an examination of the Proposal and prepared a report which recommended that the Proposal be implemented (Report).

The Delegate forwarded the Report to the Local Government Boundaries Commission (Boundaries Commission) for review and comment. The Boundaries Commission reviewed the Report and provided comments to the Minister, who is yet to decide whether to recommend, or decline to recommend, that the Proposal be implemented.

Woollahra's argument

Woollahra challenged the legality of the process for amalgamation on the grounds that:

  1. The Delegate failed to give reasonable public notice of the Inquiry as required by the Act;
  2. The Delegate did not hold the Inquiry in accordance withthe Act;
  3. The Delegate did not examine the Proposal in accordance with the Act;
  4. The review of the Report by the Boundaries Commission was not conducted in accordance withthe Act;
  5. Woollahra was not afforded procedural fairness by the Delegate in connection with the Inquiry or examination;
  6. Woollahra was not afforded procedural fairness by the Boundaries Commission in connection with its review of the Report; and
  7. Misleading statements invalidated the amalgamation process.

The Court's decision

The Court found that Woollahra failed to establish each of the above grounds, and made the following comments:

  1. Public notice of the Inquiry must be reasonable as to content, timing and form.
  2. The examination and reporting functions of the Delegate are distinct from the Inquiry, which although held for the purpose of exercising the examination function, is not the examination itself. Woollahra's view that the Inquiry should have 'a structure and forensic process similar to that of an administrative tribunal' was incorrect.
  3. The Act does not proscribe what is required by the examination of the Proposal or how the examination should be undertaken, and the Delegate was not required to 'scrutinise, test and interrogate' the claims made by the Minister and KPMG (engaged to provide an independent analysis of the proposal). These matters are left to the judgment of the Boundaries Commission or the Executive to whom the Proposal is referred.
  4. The statutory function of reviewing and commenting on the Report does not require that the Boundaries Commission express its own view on the merits of the Proposal or whether the advantages or disadvantages warrant implementation of the Proposal.
  5. The statutory scheme does not require that Woollahra has access to and an opportunity to comment on submissions made by other persons that are adverse to Woollahra's interests.
  6. The Boundaries Commission was not required to give Woollahra a copy of the Report, an opportunity to comment on Report, nor consider Woollahra's comments when reviewing and providing comments on the Report to the Minister. The opportunity to be heard was at the Inquiry, and to give multiple opportunities to be heard would be entirely unworkable.
  7. KPMG exercised its professional judgment in conducting an independent analysis of the financial impacts of the Proposal, and statements in the publicly available documents were not false or misleading. Had this not been the case however, the relevant steps in the amalgamation process would not be invalidated, because the statements did not cause the Delegate to fail to give the public notice, hold the Inquiry, or examine and report on the Proposal as required by the Act.

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.

The Fundamentals of NSW Government IT Contracting - Half day training course

Government Information Technology (IT) contracts can be challenging. Understanding the special requirements of Government (both legal and operational) can be particularly overwhelming. For this reason we are running a half-day training course on both 19 and 22 August 2016 which will guide you through the fundamentals of the Procure IT Procurement Framework and Contract. Spaces are limited. Follow the link for details and bookings.

In the media

Doctor under investigation takes unfairness claims to Supreme Court

A cardiologist whose performance has been under review in central western NSW goes to the Supreme Court with a claim that he has been treated unfairly (27 July 2016) Doctor under investigation takes unfairness claims to Supreme Court.

New online tool aims to start a conversation about problem gambling

Director of Stakeholder Engagement at Liquor & Gaming NSW said the Talkward program recognises the key role family and friends play in encouraging problem gamblers to take the vital first steps towards recovery. The e-cards, which can be customised and personalised, but carry a serious message (27 July 2016) New online tool aims to start a conversation about problem gambling.

Woollahra Council Loses Court Challenge Against Amalgamation

Woollahra Council has failed in an attempt to challenge the Baird Government's Council amalgamation process. Chief Justice Preston of the NSW LEC dismissed Woollahra's case against the Minister for Local Government, finding that the Council had not successfully established any of its grounds of challenge (25 July 2016) http://www.timebase.com.au/news/2016/AT283-article.html.

NSW: New service targets repeat offenders to keep community safe

The Department of Justice today announced the roll out of an innovative program to reduce crime and protect the community. ? The Extra Offender Management Service will engage persistent criminals in programs proven to reduce crime (25 July 2016) New service targets repeat offenders to keep community safe.

In practice and courts

NSW New online tool for problem gambling

Liquor & Gaming NSW is now undertaking a social media campaign to further spread the word about Talkward and help encourage problem gamblers to access free support tools and counselling services. To see how Talkward works, visit www.talkward.com.au (27 July 2016).

ICAC: Operations Credo and Spicer reports status

Status report, updated 22 July 2016 Operations Credo and Spicer reports status.

NSW Court Appointments

(28 July 2016) Five new district court judges for NSW.

NSW Law Society of NSW Submissions

22 July 2016 - National framework to improve accessibility to Australian courts.

22 July 2016 - Australian National Standards for Working with Interpreters in Courts and Tribunals.

NCAT: New standard form to request sound recording

NCAT has developed a new standard form for requesting a copy of a ?sound recording of proceedings (28 July 2016) New standard form to request sound recording.

NCAT Publications

21/07/2016 - NCAT Legal Bulletin Issue 4 of 2016

Cases

APV v Department of Finance and Services [2016] NSWCATAD 168

Breach of privacy – damages – loss of opportunity – onus on Applicant – nexus between claimed loss and breach https://www.caselaw.nsw.gov.au/decision/5796c592e4b058596cb9dd0d.

ZAW v ZAX & ZAY & ZAZ & New South Wales Trustee and Guardian [2016] NSWCATAP 163

APPEAL – application to replace financial manager - procedural fairness – new applications received shortly before the hearing considered at the hearing – documents provided to non-party – whether applicant had opportunity to put relevant evidence before Tribunal - whether sufficient weight given to relevant matters and/or conclusion reached not available on the evidence – subject person's cultural background and traditions – proposed manager's financial experience and expertise - no material error of fact – appeal dismissed https://www.caselaw.nsw.gov.au/decision/5791a1c9e4b058596cb9db80.

O'Donnell v Commissioner for Fair Trading [2016] NSWCATAD 166

ADMINISTRATIVE LAW – Administrative review jurisdiction – Tattoo parlour licence – Fit and proper person – confidential evidence - Public interest https://www.caselaw.nsw.gov.au/decision/579562ace4b058596cb9dc33.

Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 86

JUDICIAL REVIEW – proposal for amalgamation of local government areas – referral of proposal to Departmental Chief Executive for examination and report – inquiry required to be held – whether reasonable public notice given of the holding of inquiry – whether inquiry held in accordance with Act – whether examination and report on proposal in accordance with Act – whether an affected council denied procedural fairness by Departmental Chief Executive – review and comment on Departmental Chief Executive's report by Boundaries Commission – whether review conducted in accordance with Act – whether affected council denied procedural fairness by Boundaries Commission – publicly accessible material in support of proposal represented that analysis and modelling of consultant was independent – whether representations misleading – whether allegedly misleading representations invalidated statutory process of amalgamation https://www.caselaw.nsw.gov.au/decision/578db669e4b0e71e17f52f1f.

Legislation

NSW

Proclamations commencing Acts Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 No 16 (2016-458) — published LW 29 July 2016.

Regulations and other miscellaneous instruments Children (Detention Centres) Amendment (Juniperina Juvenile Justice Centre) Order 2016 (2016-460) — published LW 29 July 2016.

Community Services Accreditation Order 2016 (2016-461) — published LW 29 July 2016.

Surrogacy Regulation 2016 (2016-464) — published LW 29 July 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.

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