Australia: NSW Government Bulletin - 3 August 2016

Last Updated: 8 August 2016
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2017

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.


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)

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 (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


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

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

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

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



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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Christine Jones
Kim Nguyen
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.