Australia: NSW Government Bulletin – 3 May 2017

Last Updated: 7 May 2017
Article by Christine Jones and Kim Nguyen
Most Read Contributor in Australia, August 2018

The state of play with council amalgamations

Early last year, the Minister for Local Government referred 35 merger proposals to the Chief Executive of the Office of Local Government for examination and report under the Local Government Act 1993 (NSW) (LG Act).

A number of local councils sought to challenge the validity of the amalgamation process. In previous articles we discussed the outcome of proceedings against the Minister for Local Government brought by local councils such as Woollahra Municipal Council (Woollahra) [ see here], Mosman Municipal Council (Mosman) and Strathfield Municipal Council (Strathfield) [ see here].

In this issue of the Government Bulletin we look at the current state of play in relation to council amalgamations.

Ku-ring-gai Council wins its challenge on procedural fairness

Ku-ring-gai Council (Ku-ring-gai) commenced proceedings in the Land and Environment Court last year, challenging its proposed merger with Hornsby Shire Council. These proceedings were dismissed, however Ku-ring-gai was subsequently successful on appeal. In its recent decision in Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54, the Court of Appeal held that Ku-ring-gai had been denied procedural fairness. The delegate had chosen to rely on a financial analysis of the merger proposal by KPMG, rather than conducting his own assessment. The procedural unfairness arose because the KMPG documents were not made available either to the council or to the delegate.

The time to appeal the Court of Appeal's decision has now lapsed, which leaves the question of whether the merger will proceed unanswered. This decision may have a bearing on the challenges by other local councils, which are yet to be decided.

Woollahra takes its challenge to the High Court

Woollahra's challenge to its proposed merger with Randwick City Council and Waverley Council was dismissed at first instance by the Land and Environment Court, and again on appeal before the Court of Appeal. Woollahra has made an application for special leave to appeal to the High Court, which is due to be heard on 12 May 2017. It has been fifteen years since a council amalgamation case has come before the High Court. In 2002 South Sydney Council was refused special leave to appeal its proposed amalgamation with the City of Sydney Council.

Challenges awaiting decision in the Court of Appeal

Mosman, Strathfield, Hunters Hill Council, Lane Cove Council and North Sydney Council have appealed the decision of the Land and Environment Court in Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2016] NSWLEC 124 to the Court of Appeal.

The decision is currently reserved, however the grounds of appeal include whether procedural fairness was denied because of how the delegate conducted certain public meetings, or because the councils were denied access to, and the opportunity to make submissions on, the independent analysis and modelling conducted by KPMG. The councils are also appealing the decision by the primary judge to deny the councils leave to amend their summons to allege the Minister knowingly or recklessly made a false representation about the independence of KPMG.

Regional council mergers

Challenges were made by regional councils to proposed mergers, which would see the amalgamation of Blayney Shire Council, Cabonne Council and Orange; Dungog Council and Maitland Council; Bathurst Council and Oberon Council; and Uralla Council and Walcha Council.

Following the resignation of Mike Baird as State Premier, on 14 February 2017 the State Government announced a policy change, which will see completed amalgamations remain in place, but proposals to merge these regional councils not pursued further.

NSW Government Lawyers Linkedin Group

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 those employed in the public sector.

In the media

NSW government fails to appeal Ku-ring-gai Council amalgamation court loss
The NSW government has abandoned one option to forcibly merge Ku-ring-gai Council with Hornsby, after failing to meet a deadline to appeal against a court decision – leaving questions around the future of other Sydney councils fighting forced amalgamations. More...

AHRC: August release date confirmed for university report
Sex Discrimination Commissioner Kate Jenkins today announced that the Australian Human Rights Commission's national report on sexual assault and sexual harassment at Australian universities will be released on Tuesday 1 August 2017 (28 April 2017). More...

Legislating Against Revenge Pornography: Call for Uniform Laws
Responses to the passing of Carly's Law, a law designed to protect minors from misuse of carriage services, centre on a need to overhaul Australia's approach to image-based sexual crimes. Specifically, it is the use of a carriage service to share explicit images which has been the subject of much debate, colloquially referred to in the media as 'revenge porn (28 April 2017). More...

Record federal funding for legal assistance
The Turnbull Government will make a further significant investment in the community legal sector, as part of the 2017-18 Budget, with an additional $55.7 million over the next three years for Community Legal Centres ($39 million) and Aboriginal and Torres Strait Islander Legal Services ($16.7 million) (24 April 2017). More...

New Appointments for April 2017: ICAC, QCA and NT EPA
April 2017 has been a busy month across Australia for appointments with a new ICAC Chief Commissioner, new President of the Queensland Court of Appeal and new NT EPA Board member announced (24 April 2017). More...

Chief Commissioner of the ICAC
NSW Premier Gladys Berejiklian today announced that the Government is proposing the appointment of former Supreme Court Judge, the Hon. Peter Hall QC, as the inaugural Chief Commissioner of the reconstituted Independent Commission Against Corruption (20 April 2017). More...

Australian critical infrastructure organisations targeted by cybercriminals
The Government has today released a comprehensive cyber security survey, published by the Australian Cyber Security Centre, of Australian government and major businesses of national significance (19 April 2017). More...

In practice and courts

ICAC: Operation Tarlo witness list
Witness list for the Operation Tarlo public inquiry. Please note that witness lists are subject to change (28 April 2017). More...

ICAC: Prosecution briefs with the DPP and outcomes
Tables showing outcomes of ICAC-related prosecutions and briefs with the Director of Public Prosecutions Updated 21 April 2017. More...

ICAC: public inquiry into corruption allegations concerning former Immigrant Women's Health Service CEO (Operation Tarlo)
The ICAC will hold a public inquiry commencing on Monday 1 May 2017 as part of an investigation it is conducting into corruption allegations concerning Eman Sharobeem, the former chief executive officer (CEO) of the Immigrant Women's Health Service (IWHS) and the Non-English Speaking Housing Women's Scheme Inc (NESH) (21 April 2017). More...

Cases

Hart v ICare Self Insurance [2017] NSWCATAD 130
ADMINISTRATIVE LAW – government information – legal professional privilege – waiver of privilege.

CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132
ADMINISTRATIVE LAW- Education and Care Services National Law – Operator approval – Breach of condition of approval – Objects and Principles of National Law – Children – Childcare Services – Failure to commence operating with 6 months – Administrative review jurisdiction– External Appeal jurisdiction.

CBL v Southern Cross University [2017] NSWCATAD 125
Application to set aside decision - failure to provide written reasons for decision - scope and nature of set aside provisions – application of subsection 53(4) of the Civil and Administrative Tribunal Act 2013 - relationship between set aside provisions and appeal rights.

CPP v Secretary Department of Family and Community Services [2017] NSWCATAD 127
ADMINISTRATIVE LAW - review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 28(1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – removal of children from the care of the applicants due to breach of safety plan and code of conduct - issue is the correct and preferable decision having regard to the material before the Tribunal - decision to remove the children from the care of the applicants confirmed.

CFK v Office of the Children's Guardian [2017] NSWSC 460
ADMINISTRATIVE LAW – appeal against NSW Civil and Administrative Tribunal decision re working with children check clearance – whether the Tribunal was bound to accept expert opinion that the applicant posed a low risk of sexual abuse – whether there was a denial of procedural fairness – whether there was failure to give reasons for rejection of expert opinion – whether Tribunal was entitled to reach different conclusions to that reached by the Court of Criminal Appeal – applicant had not pursued counselling and had not disclosed acquittal to employers – whether Tribunal's decision was irrational and illogical – no legal errors established – appeal dismissed

Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424
STATUTORY INTERPRETATION – appeal from NSW Civil and Administrative Tribunal – termination of social housing tenancy agreements – statutory construction of ss 85, 137, 155 and 154E of Residential Tenancies Act 2010 (NSW). WORDS AND PHRASES – whether Tribunal is "considering whether to make a termination order" only when exercising a discretionary power to make a termination order, or also when the Tribunal is obliged to make an order. STATUTORY INTERPRETATION – whether inconsistency between s 154E and s 85 – relevant principles – inconsistency found – inconsistency resolved by s 137 in favour of s 154E – Tribunal required to have regard to the matters in s 154E when considering whether to terminate social housing tenancy agreement under s 85. ADMINISTRATIVE LAW – error of law as Tribunal failed to consider mandatory relevant considerations in s 154E – decision set aside and matter remitted to Tribunal to be determined according to law

Legislation

Proclamations commencing Acts

Regulatory and Other Legislation (Amendments and Repeals) Act 2016 No 60
(2017-159) — published LW 28 April 2017.

Regulations and other miscellaneous instruments

Legal Profession Uniform Admission Amendment (Academic Areas of Knowledge) Rule 2017
(2017-157) — published LW 24 April 2017.

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 Mondaq.com.

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

Authors
Christine Jones
Kim Nguyen
Similar Articles
Relevancy Powered by MondaqAI
Holding Redlich
Holding Redlich
 
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”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Holding Redlich
Holding Redlich
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions