Australia: Queensland Government Bulletin – 3 May 2017

In the media

AFP incident raises concerns about implementation of mandatory data retention laws
The revelation Australian Federal Police recently accessed the private metadata of a journalist without first obtaining a warrant raises concerns about the implementation of mandatory data retention laws, according to the Law Council of Australia (30 April 2017). More...

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...

Suspended whistleblower sues Queensland for $1.3m
A Gold Coast Sergeant is suing the Queensland Government for $1.3 million in damages for alleged whistleblower reprisal, claiming loss of reputation, professional damage and humiliation (27 April 2017). 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...

AHRC: 'Human rights in investment' cover - on blackboard with business flowcharts
Human rights influence on investors
A new report detailing the strong business case for the financial services industry to consider human rights in their investment decisions will be released today, as investors around the globe become more focussed on responsible investing (27 April 2017). More...

Serious violent offenders in Victoria could be detained after sentences end
Victorian courts will soon be able to detain the "worst of the worst" violent offenders after their sentences end, under changes prompted by the murder of Melbourne schoolgirl Masa Vukotic (27 April 2017). More...

Anomalies' in Queensland police handling of crime statistics 'corrected'
Queensland's police commissioner says problems with crime data have been corrected after an auditor-general report found officers were soliciting victims to withdraw complaints to keep a lid on crime rates (27 April 2017). More...

Miscarriages of Justice in Australia: A Brief Overview
In every country there is some sort of miscarriage of justice that may be carried out in the criminal justice system. The amount of miscarriages of justice carried out in each country depends on many factors (26 April 2017). More...

Post Panama Papers, call to name and shame people behind secret shell companies
The public should be able to freely access the names of the people behind the ownership of assets and bank accounts in order to boost transparency and stop secret shell companies being used for criminal activity. This is the key contention of a host of submissions to Treasury as part of the federal government's plans to increase transparency of the beneficial ownership of companies (26 April 2017). More...

Victorian Penalty Rates Inquiry Commences
The Penalty Rates and Fair Pay Select Committee will look into the social and economic cost of the Fair Work Commissions to changes to penalty rates. The changes will begin to impact the wages of retail, hospitality, pharmacy and fast food workers from the middle of the year (26 April 2017). More...

Supreme Court throws out Colbert appeal
The South Australian Supreme Court has rejected trucking company owner Peter Colbert's endangering life and manslaughter sentencing appeal. The three judges sitting as the Court of Criminal Appeal, in findings released recently, rejected unanimously the Colbert Transport boss' contentions (24 April 2017). More...

Sentencing Spotlights on murder and manslaughter in Queensland
For the first time, the Queensland Sentencing Advisory Council (QSAC) has collated and published data on sentencing outcomes for the offences of murder and manslaughter finalised in Queensland courts through its Sentencing Spotlights series (24 April 2017). More...

Federal Government to reverse community legal funding cuts in May budget
The Federal Government will restore funding to the community legal sector in the May budget, abandoning cuts outlined in previous budgets after a backlash from the legal sector (24 April 2017). More...

No need to prove who pulled trigger in Victoria's proposed drive-by shooting laws
New legislation to combat drive-by shootings will be introduced to the Victorian Parliament allowing police to charge all occupants of a vehicle involved in a shooting, rather than having to prove who pulled the trigger (23 April 2017). More...

In practice and courts – National

OAIC: Data + Privacy Asia Pacific Conference 2017
Privacy and data protection regulators from across the Asia Pacific region will join Australian industry leaders and data experts for the Data + Privacy Asia Pacific Conference in Sydney on 12 July this year. More...

In practice and courts – Queensland

Queensland Family and Child Commission: A systems review of individual agency findings following the death of a child
The role of the Queensland Family and Child Commission in writing this report was to examine current systems for reviewing the deaths of vulnerable children and make recommendations for change to create a contemporary and up-to-date child death review system. More...

Queensland Sentencing Council: Classification of child exploitation material for sentencing purposes
Consultation into the review of the classification of child exploitation material for sentencing purposes has now closed. The final report is due to the Attorney-General on 31 May 2017. More...

OIC Queensland: How to put a price on damage suffered as a result of a privacy breach
Queensland privacy complaint jurisdiction - The Information Privacy Act 2009 (Qld) (IP Act) creates a right for individuals to make a privacy complaint if they consider that a Queensland Government agency has failed to comply with its obligations under this Act. OIC's role is restricted to assessing the issues of jurisdiction and whether the complaint shows an 'arguable case' of privacy breach and if so, provide a mediation service (April 2017). More...

Published – articles, papers, reports

Two Years of Suppression under the Open Courts Act 2013 (Vic)
Jason Bosland, (2017) 39(1) Sydney Law Review 25-57
The Open Courts Act 2013 (Vic) was introduced in response to concerns that suppression orders were granted too frequently by the Victorian courts and that problems often existed in relation to the breadth, clarity and duration of such orders. Some of these concerns were verified in a 2013 study of all suppression orders made in Victoria between 2008 and 2012. This article presents the findings of a follow-up empirical study of suppression orders made by the Victorian courts in the two years following the commencement of the Act in December 2013.

Cases

Comcare v Wuth [2017] FCA 433
ADMINISTRATIVE LAW – Safety, Rehabilitation and Compensation Act 1988 (Cth) – procedural fairness – where s 24(6) required Tribunal to award percentage for degree of permanent impairment – where expert medical evidence opined not possible to award a percentage degree of permanent impairment in accordance with approved Guide or AMA Guides – whether Tribunal required to inform parties it would determine percentage under s.24(6) – whether practical injustice shown. Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 44; (Cth) s 26; Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 8, 9, 14, 19, 24, 27, 28, 64.

Blake v Commissioner of Taxation [2017] FCA 396
BANKRUPTCY AND INSOLVENCY – appeal against a decision of the Administrative Appeals Tribunal – whether the proceedings have been deemed abandoned pursuant to s 60(3) of the Bankruptcy Act 1974 (Cth) – whether, if the proceedings are abandoned, the appeal should be dismissed.
PRACTICE AND PROCEDURE – whether an application for extension of time to programming orders and an adjournment of the matter should be granted - Administrative Appeals Tribunal Act 1975 (Cth) s 4.

SA Power Networks v Australian Competition Tribunal [2017] FCA 415
PRACTICE AND PROCEDURE – application to intervene in judicial review proceedings – nature, scope and length of submissions by intervener – outline of oral submissions by parties and intervener limited to 3 pages on each of three topics – counsel for the parties and the intervener to confer and provide to the Court a provisional timetable for the hearing.
Administrative Decisions (Judicial Review) Act 1977 (Cth); National Electricity Law; Federal Court Rules 2011 (Cth) r 9.12; High Court Rules 2004 (Cth) r 44.08; National Electricity Rules.

SZSLM v Minister for Immigration and Border Protection [2017] FCA 413
MIGRATION – application for leave to appeal from decision of Federal Circuit Court – application for interlocutory injunctive relief – whether arguable case – International Treaties Obligations Assessment – consideration of the Data Breach incident – whether Convention on the Rights of the Child a relevant consideration – whether failure to take into account relevant consideration - Constitution s 61; Migration Act 1958 (Cth) s 198A.

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.

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.

Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62
INCOME TAX – transfer pricing – whether consideration exceeded arm's length consideration – consideration that might have been reasonably expected between independent parties dealing at arm's length – meaning of property – meaning of consideration – what constitutes arm's length consideration for acquisition of property.
INCOME TAX – whether determinations excessive – whether decision by delegate without authority makes assessment excessive.
CONSTITUTIONAL LAW – retrospective effect of taxation legislation – whether retrospectivity results in arbitrary and incontestable tax. The appeal be dismissed with costs.

Legislation – Queensland

Subordinate legislation as made

No 60 Penalties and Sentences (Penalty Unit Value) Amendment Regulation 2017 - Penalties and Sentences Act 1992 – 28 April 2017.

No 61 Legal Profession (Society Rules) Notice 2017 - Legal Profession Act 2007.

Bills Updated

Police Powers and Responsibilities (Commonwealth Games) Amendment Bill 2017
Introduced on 14/02/2017 Stage reached: Report from Committee on 27/04/2017.

Corrective Services (Parole Board) and Other Legislation Amendment Bill 2017
Introduced on 16/02/2017 Stage reached: Report from Committee on 28/04/2017.

State Penalties Enforcement Amendment Bill 2017
Introduced on 2/03/2017 Stage reached: Report from Committee on 28/04/2017.

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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