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.

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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...


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


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.

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Christine Jones
Kim Nguyen
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