Australia: NSW Government Bulletin - 9 August 2017 - Part 2

Last Updated: 11 August 2017
Article by Christine Jones

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In the media

eSubpoenas make access to Justice easier
The online eSubpoena service is now available for the return of subpoenaed documents to registries across the NSW Supreme, District, Local and Land and Environment Courts for civil matters. Once legal practitioners file a subpoena form online, respondents can upload the requested documents electronically (04 August 2017). More...

ICAC finds former NSW Government minister and MPs corrupt
The ICAC has found that former NSW minister for infrastructure Anthony Kelly and former members of Parliament, Edward Obeid Sr and Joseph Tripodi, engaged in serious corrupt conduct in relation to their actions concerning a public private partnership (PPP) proposal by Australian Water Holdings Pty Ltd (AWH) (03 August 2017). More...

ICAC finds former Department of Justice officer corrupt
The ICAC has found that a former Department of Justice officer engaged in serious corrupt conduct by accepting cash and benefits from an approved supplier, including assisting in the installation of a swimming pool at his home, in return for recommending that the supplier's companies be allocated work (03 August 2017). More...

Free Birth Certificates for Vulnerable People in NSW
An outreach program for disadvantaged communities is providing homeless and Aboriginal people with free birth certificates and other support to help them get their lives back on track, Attorney General Mark Speakman announced today (03 August 2017). More...

Civil courts should move online, Justice Michael Kirby says
The former High Court justice says Australia's legal system is too expensive and has been out of reach for many people for decades (03 August 2017). More...

160,000 people turned away: How the justice system is failing vulnerable Australians Opinion
All Australians have the right under the law to seek justice. But community legal centres are turning away 160,000 people a year and funding cuts are making the problem worse, writes Law Council of Australia president Fiona McLeod (03 August 2017). More...

Fewer sex abuse convictions despite doubling in court cases: Justice McClellan
The head of the child sex abuse royal commission will call for legal changes to ensure victims are given the best chance of receiving justice, saying in a speech to be delivered today that conviction rates have fallen despite an increase in the number of cases before the courts (02 August 2017). More...

Report shines a light on universities
The Australian Human Rights Commission today released its landmark report on the nature and extent of sexual assault and sexual harassment at Australian universities. The data in the Change the course report is based on a national survey (01 August 2017). More...

New Acting ALRC President and Three New Magistrate Appointments in NSW
On 28 July 2017, there were two important announcements regarding appointments, firstly the appointment of the Acting President of the Australian Law Reform Commission (ALRC) before the commencement of the new President's term in three months; and, additionally, three new magistrate appointments in NSW (31 July 2017). More...

NSW Custody Statistics quarterly update June 2017
The NSW prison population reached 13,092 in June this year, not counting prisoners held in police cells. This brings the total increase in the NSW adult prison population over the last 12 months to 3.8 per cent (31 July 2017). More...

Acting President of Australian Law Reform Commission
Mr Cornall has been appointed for a period of three months, commencing 30 July 2017, while a recruitment process will be undertaken to fill the vacancy left by Emeritus Professor Rosalind Croucher AM. This process will be conducted in accordance with Merit and Transparency Guidelines issued by the Australian Public Service Commission (28 July 2017). More...

Three new magistrates for NSW
Attorney General Mark Speakman today announced the appointments of Christopher Halburd, Theresa Hamilton and Brett Shields as magistrates of the Local Court of NSW. Mr Shields will be sworn in as a magistrate on 28 August, while Ms Hamilton and Mr Halburd will join the Local Court bench on 11 September (28 July 2017). More...

ICAC finds former City of Botany Bay Council CFO corrupt over $5.6 million in false invoices and credit card misuse
The ICAC has found that former City of Botany Bay Council chief financial officer Gary Goodman engaged in serious corrupt conduct involving more than $5 million in false or inflated invoices and by incurring over $620,000 of personal expenditure on corporate credit cards issued in the name of the then general manager (26 July 2017). More...

Reducing reoffending in Juvenile Justice in NSW
Minister for Corrections David Elliott today announced the creation of new caseworker roles at Juvenile Justice, providing support, guidance and discipline to young offenders as part of a commitment to reduce reoffending (26 July 2017). More...

Australia takes important step towards more open government
Although Australia has, in many ways, a strong democracy, secrecy has noticeably increased across government. Australia's commitment to the Open Government Forum is a step towards addressing some of the transparency issues that hold us back (27 July 2017). More...

Australia needs an effective complaints body to investigate corporate human rights abuses
Australia's key complaints body for corporate human rights abuses is failing and in need of a major overhaul, the Human Rights Law Centre has told an independent review (24 July 2017). More...

More MPs could be at risk as dual citizenship crisis threatens to widen
Constitutional experts were yesterday scrambling to consider the range of legal possibilities when the government asks the High Court of Australia to rule on Senator Canavan's eligibility to stand at the last election, now that it has emerged he was a dual Italian-Australian citizen at the time (26 July 2017). More...

NSW reviews child abuse civil laws
Attorney General Mark Speakman today encouraged the community to have a say on changing laws to make it easier for survivors of child abuse to obtain civil justice, releasing a consultation paper on the civil litigation recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (23 July 2017). More...

NSW council amalgamations scrapped after Government backflip
The New South Wales Government has abandoned forced council amalgamations, ending an 18-month war with the state's local municipalities (27 July 2017). More...

In practice and courts

LCA: Australia's access to justice crisis laid bare: national Justice Project releases papers
The Law Council of Australia has today said that countless Australians are being denied access to justice as its national Justice Project moves into the consultation phase.
Consultation papers, overseen by a Steering Committee of eminent lawyers, academics and jurists including former High Court Chief Justice, the Hon. Robert French AC, have been released today for feedback. Submissions close on 30 September 2017. More...

OAIC: Updated privacy policy
The OAIC has updated its privacy policy. The update includes the following changes outlined here (27 July 2017). More...

OAIC: Independent review of the Privacy (Credit Reporting) Code 2014
The OAIC has completed the tender process, and contracted PricewaterhouseCoopers (PwC) to conduct an independent review of the Privacy (Credit Reporting) Code 2014 (Version 1.2). More information will be provided as the review progresses. For more information about the CR Code and credit reporting under the Privacy Act see the Credit Reporting page (26 July 2017). More...

Law Council of Australia Submissions 26 July 2017
Response to Consultation Paper OPCAT in Australia

Law Council of Australia Submissions 25 July 2017
Australian National Contact Point 2017 Review

Commonwealth Consultations
October 2017 - Closing date for comments to the FCA on the General Practice Notes. More...

AHRC: e-bulletin, 26 July 2017
The Australian Human Rights Commission e-bulletin. Published monthly, this e-bulletin keeps you up-to-date with our programs, projects and news. More...

New South Wales

NSW Department of Justice: Practice Notes
PN SC GEN 17 - Practice Note SC GEN 17 – Supreme Court Representative Proceedings (31 July 2017).

NSW Sentencing Bench Book
For the latest update, see Update 38, July 2017

Services for people with disability at NCAT
NCAT has developed new resources NCAT support for people with disability and Can you hear in the hearing room (03 August 2017). More...

ICAC: Early bird discount registrations are now open for the Australian Public Sector Anti-Corruption Conference
Register by 15 August 2017, to take advantage of the early bird discount, via the above link to the APSACC 2017 website. More...

ICAC: Prosecution briefs with the DPP and outcomes
Last updated 2 August 2017. More...

Victims' involvement in sentencing
The NSW Attorney General has asked us to conduct a review of victims' involvement in the sentencing process. More...

Royal Commission civil litigation recommendations
The NSW Government is considering the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse about how to provide justice to victims of future institutional child abuse. The Department of Justice has developed a consultation paper which identifies some of the potential issues and poses questions about possible options for reform. Submissions close on 4 September 2017. More...

Published – articles, papers, reports

Change the course: national report on sexual assault and sexual harassment at Australian universities
Australian Human Rights Commission: 01 August 2017
At the request of Australia's 39 universities, the Australian Human Rights Commission has conducted a national, independent survey of university students to gain greater insight into the nature, prevalence and reporting of sexual assault and sexual harassment at Australian universities. More...

Comparisons between the youth and adult justice systems: 2015–16
Australian Institute of Health and Welfare: 28 July 2017
This fact sheet summarises some of the similarities and differences between young people and adults in the justice systems in Australia. In 2015–16, the most common principal offence among young people was theft, while among adults it was illicit drug offences. More...

Are more first-time young offenders being recorded for serious crimes than in the past?
Victoria, Crime Statistics Agency: 20 July 2017 This paper examined the offences police recorded for 10 to 17 year old alleged offenders on the first day they were ever recorded for any offences, where that day was between 2012 and 2016. More...

National cities performance framework: interim report
Government of Australia: 20 July 2017
Australia's success in the 21st Century economy depends on our cities, suburbs and regional centres. The Australian Government's Smart Cities Plan is committed to creating the foundations for success across all cities and regional centres. More...

OAICnet - 01 August 2017
In this issue: Privacy policy update; Data + Privacy Asia Pacific Conference wrap up; 5 million+ Australians have a My Health Record; APS Privacy Governance Code consultation; FOI decisions; Commissioner statements. More...


Ferguson v State of New South Wales & Ors [2017] NSWSC 887
ADMINISTRATIVE LAW – judicial review of decision of medical Appeal Panel – where Appeal Panel revoked a "medical assessment certificate" on the basis of "demonstrable error" and issued a new certificate – where plaintiff was a police officer suffering PTSD and depression causing "permanent impairment" – where dispute about degree of impairment – consideration of Social Functioning and Employability under the Psychiatric Impairment Rating Scale – HELD jurisdictional error in relation to the functions of the Registrar – HELD misdirection in conclusion that the evidence could not support a finding that the plaintiff's relationship with her partner was "severely strained" – HELD error of law on the face of the record in finding that there was no material which could support a Class 3 assessment of Social Functioning – medical assessment certificate set aside – matter remitted for rehearing by different Appeal Panel – plaintiff awarded costs.

Kamm v State of New South Wales (No 4) [2017] NSWCA 189
CONSTITUTIONAL LAW – separation of powers – Kable principle – whether the Crimes (High Risk Offenders) Act 2006 (NSW) undermines the institutional integrity of the New South Wales Supreme Court – whether legislation distinguishable from that considered in Fardon v Attorney-General (Qld) – whether legislation distinguishable from that considered in Wainohu v New South Wales – whether objectives of the Crimes (High Risk Offenders) Act 2006 (NSW) are penal or punitive STATUTORY INTERPRETATION – determination that a person a high risk sex offender pursuant to s 5B – discretion to make extended supervision order pursuant to s 5B ADMINISTRATIVE LAW – whether there was denial of procedural fairness by primary judge – whether primary judge failed to give adequate reasons – whether decision of primary judge was void for legal unreasonableness – meaning of legal unreasonableness.

4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191
ADMINISTRATIVE LAW – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – consent authority's satisfaction that development would have "a neutral or beneficial effect" on water quality required – whether consent authority's approach valid ENVIRONMENT AND PLANNING – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – development must have "a neutral or beneficial effect" on water quality under State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW) cl 10(1) – nature of comparison required STATUTORY INTERPRETATION – delegated legislation – no general principle requiring laxity or flexibility in construction – adherence to basic principles of statutory construction – focus on text and context.

White v Commissioner of Fair Trading [2017] NSWCATAD 233
ADMINISTRATIVE REVIEW - tattoo parlours – tattooist licence - adverse security determination - fit and proper person - public interest.

State of New South Wales v Bouffler [2017] NSWCA 185
TORTS – trespass to land – whether entry of police officers authorised by law – six police officers entered house occupied by the respondent without his consent – eight officers entered respondent's property without consent – officers relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether officers had requisite state of mind to satisfy ss 9 and 10 – whether officers must each individually have state of mind – whether officers can enter to assist other officers engaged in an arrest – circumstances in which state of mind can be inferred STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether each officer must individually have state of mind required under ss 9, 10 and 99 – whether context and purpose indicates that meaning is to be given that is different from or qualifies plain meaning – meaning of "reasonable grounds" STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – relationship between ss 10 and 99 – whether entry to a premises pursuant to LEPRA, s 10 requires a lawful arrest under s 99 – whether s 10 operates as a derivative of s 99 STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9 – meaning of "breach of the peace" – whether breach of the peace requires actual or threatened violence – whether threat of harm must be to third person.

Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
COMMON LAW – Local Court Appeal – Firearms Act – whether magistrate erred in construction of s 4D – whether object claimed to be a children's toy falls within s 4D(4) – determination of imitation firearm – necessity to have regard to production and identification of object - appeal allowed – decision set aside – remitted back to the Local Court for decision to be made according to law.

George Thomas Hotels (Campsie) Pty Limited and Anor v NSW Independent Liquor and Gaming Authority and Ors [2017] NSWSC 994
COSTS – Civil Procedure Act 2005, Liquor Act 2007, Uniform Civil Procedure Rules 2005.

Robertson v Director of Public Prosecutions (NSW) & District Court NSW [2017] NSWCA 180

ADMINISTRATIVE LAW – judicial review – generally – s 32 of Mental Health (Forensic Provisions) Act 1990 – whether applicant eligible under s 32 – whether failure to make finding as to jurisdiction – whether denial of procedural fairness.

The Owners – Strata Plan No 5225 v Registrar General of New South Wales [2017] NSWSC 886
PUBLIC ROAD – dedication at common law – unmade road – land described as road in subdivision created before 1906 – acceptance and use by public – maintenance by Council STATUTORY CONSTRUCTION – s224(3) Local Government Act, 1919 – freestanding operation not subject to s327 – not opening or dedication of road STATUTORY CONSTRUCTION – s327 Local Government Act – scope and operation – inapplicable to exercise of s224(3) power ADVERSE POSSESSION – exclusive physical control – intention to possess as against whole world – not established STANDING – entitlement of body corporate to sue – adjoining land.


New South Wales

Proclamations commencing Acts

Independent Commission Against Corruption Amendment Act 2016 No 65
(2017-387) — published LW 4 August 2017.

Regulations and other miscellaneous instruments

Commercial Agents and Private Inquiry Agents Regulation 2017
(2017-388) — published LW 4 August 2017.
Crimes (Administration of Sentences) Amendment (Parole Applications) Regulation 2017
(2017-386) — published LW 31 July 2017.
Subordinate Legislation (Postponement of Repeal) Order 2017
(2017-389) — published LW 4 August 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
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