Australia: NSW Government Bulletin - 20 September 2017: Part 1

Last Updated: 25 September 2017
Article by Christine Jones

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In the media

Lionel Murphy: Parliament releases secret files detailing misconduct allegations against former judge
Sealed documents from one of the most explosive scandals in Australian political and judicial history have been released by Federal Parliament, and detail a series of allegations about misconduct by a former high court justice (14 September 2017). More...

Marriage Law Survey (Additional Safeguards) Act 2017 rushed through Parliament
In light of the upcoming postal Marriage Law Survey regarding same-sex marriage, the Parliament of Australia has yesterday, 13 September 2017, pushed through the Marriage Law Survey (Additional Safeguards) Bill 2017, and the Marriage Law Survey (Additional Safeguards) Act 2017 (the Act) has been assented to as Act 96 of 2017. Commencing immediately, the Act will be in operation until the result of the Marriage Law Survey is declared on 15 November 2017 (14 September 2017). More...

Legal protection necessary as postal survey hits letterboxes
Parliament has agreed on new laws to safeguard against hate speech during the same-sex marriage postal survey campaign by rapidly passing the Marriage Law Survey (Additional Safeguards) Bill. The Law Council has strongly advocated for the anti-vilification provisions which cover a wide-range of conduct. The new temporary laws will apply until mid-November restricting content published by campaigns, anyone found to have breached those provisions could face a $12,000 fine and a court injunction (14 September 2017). More...

Legal profession backs Integrity Commission and Whistleblower reports
The Law Council has thrown its support behind the Select Committee into a National Integrity Commission report and the Joint Committee on Corporations and Financial Services Whistleblower protections report. Several of the recommendations contained in these reports are consistent with the Law Council's positions that have been put forward to both Committees (14 September 2017). More...

Uniform Legal Services Commissioner appointed
Megan Pitt, former Director of the Australian Government Solicitor's Sydney Office, will be appointed the new Commissioner for Uniform Legal Services Regulation and Chief Executive Officer of the Legal Services Council (14 September 2017). More...

Eddie Obeid loses appeal against misconduct in public office conviction
Corrupt former Labor minister Eddie Obeid's appeal against his conviction for misconduct in public office fails and he will have to serve out his minimum three-year jail term (13 September 2017). More...

Same-Sex Marriage Plebiscite: High Court Dismisses Constitutional Challenge
The High Court dismissed the constitutional challenge to the same-sex marriage plebiscite on 7 September 2017, confirming that the plebiscite is valid. The High Court has stated that it will be publishing reasons on a subsequent date (08 September 2017). More...

Years to go to trial but 32 minutes to convict — Attorney-General calls for explanation
The NSW Attorney-General calls on the Director of Public Prosecutions to explain the handling of the Lynette Daley manslaughter saga, which took years to go to trial after the DPP initially decided not to prosecute (07 September 2017). More...

New Ombudsman for NSW
NSW Premier Gladys Berejiklian has announced the Government has proposed the appointment of Michael Barnes as the NSW Ombudsman (06 September 2017). More...

In practice and courts

BOSCAR: NSW Recorded Crime Statistics quarterly update June 2017
Although, most categories of crime are stable or falling, a number of enforcement related categories are increasing. They include breach bail conditions (up 7.8%), possess/use cocaine (up 33.7%) and transport regulatory offences (up 15.2%) (07 September 2017). More...

NSW Justice Consultation: NSW strengthening child sexual abuse laws discussion paper
The discussion paper considers the Royal Commission's recommendations, including: strengthening grooming offences; removing remaining limitation periods on some historic child sex offences; and developing a targeted failure to report offence. To make submissions on the discussion paper, visit the NSW Government's 'Have Your Say' website (01 September 2017). More...

District Court Criminal Practice Note 14 – Telephone readiness hearings for circuit sitting
Applicable trials will be given a Telephone Readiness Hearing at least 6 weeks before the date of the trial. Applicable trials are all those listed for hearing with estimates of five days or more in circuit sittings, with the exceptions of Newcastle, Lismore, Tamworth, Armidale, Dubbo, Gosford, Wollongong, and Wagga Wagga. More... (September 2017)

ICAC: Prosecution briefs with the DPP and outcomes
Tables of prosecution briefs with the DPP and outcomes. Last updated 15 September 2017. More...

ICAC: Keep in touch with the ICAC
Subscribe here to Corruption Matters, the ICAC's biannual newsletter. The next issue is due out in October 2017 (07 September 2017). More...

ICAC November 2017 workshops
Workshops by leading practitioners on conducting investigations, strategic corruption prevention management or effective complaint handling. More...

Australian Public Sector Anti-Corruption Conference
The conference will be held at The Westin Sydney on 14 to 16 November 2017. More...

Published – articles, papers, reports

Senate Select Committee on a National Integrity Commission – report
Senate Select Committee on a National Integrity Commission: 13 September 2017.
This report examines the adequacy of the Australian government's legislative, institutional and policy framework in addressing all facets of institutional, organisational, political, electoral, and individual corruption and misconduct. More...

Whistleblower protections
Parliamentary Joint Committee on Corporations and Financial Services: 13 September 2017
One of this report's main recommendations is the establishment of a Whistleblower Protection Authority that can support whistleblowers, assess and prioritise the treatment of whistleblowing allegations, conduct investigations of reprisals, and oversight the implementation of the whistleblower regime for both the public and private sectors. More...

Rising inequality: an Australian reality
Australian Council of Trade Unions: 13 September 2017"
The Australian Council of Trade Unions (ACTU) has released this report that shows Australia is at risk of becoming an Americanised society of working poor if people are not given a pay rise. More...

Independent investigation into NSW water management and compliance - interim report
Ken Matthews; Department of Industry (NSW): 11 September 2017
The allegations of water theft and maladministration that are the subject of this investigation were raised on the ABC TV 'Four Corners' program "Pumped: Who is benefitting from the billions spent on the Murray-Darling?'' More...

Social impact assessment guideline
Department of Planning and Environment (NSW): 08 September 2017
Social impact assessment is the process of identifying, predicting, evaluating and developing responses to the social impacts of a proposed state significant resource project, as part of the overall environmental impact assessment of that project. More...

Cases

CEU v University of Technology Sydney [2017] NSWCATAD 280

ADMINISTRATIVE LAW – costs.

Searle v Transport for NSW [2017] NSWCATAD 256
ADMINISTRATIVE LAW – Government information – Whether conclusive presumption of overriding public interest against disclosure - Cabinet information – Where Infrastructure NSW engages experts to conduct reviews of major infrastructure projects in order to monitor progress of projects and for other purposes - Where applicant sought information in reviews of Sydney Light Rail Project – Where summaries of reviews regularly submitted to Cabinet but reviews themselves never yet submitted to Cabinet - Whether agency had reasonable grounds for claim that dominant purpose of preparing review documents was submission of documents to Cabinet – Meaning of "reasonable grounds".
ADMINISTRATIVE LAW – Government information –Public interest considerations against disclosure – Whether disclosure of the information sought could reasonably be expected to prejudice the supply of confidential information – Where public servants providing information in confidence were under a duty to be candid – Whether public servants could reasonably be expected to be less than candid when providing information which could damage relationships with stakeholders – Where little evidence led as to the position of private sector individuals providing confidential information to agency – Whether disclosure of the information sought could reasonably be expected to prejudice the effective exercise by an agency of its functions - Whether disclosure of the information sought could reasonably be expected to prejudice an agency's legitimate business and commercial interests and/or place an agency at a competitive disadvantage in the market.
ADMINISTRATIVE LAW – Government information – Public interest considerations in favour of disclosure – Where disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective – Where information of public interest and importance.
ADMINISTRATIVE LAW – Government information – Power of Tribunal to raise public interest considerations against disclosure not raised by respondent – Onus of respondent – Where respondent did not consult with individuals about release of their personal information.

Kuzma v State Transit Authority Group of the Transport Service of NSW [2017] NSWIRComm 1061
PUBLIC SECTOR DISCIPLINARY APPEAL – allegations against Bus Operator of breaches of Code of Conduct and Bus Operations Handbook – behaved in an inappropriate and unprofessional manner towards colleague – behaviour towards colleague was abusive and threatening – left bus unattended and unsecured – penalty imposed of reduction in classification for three months – misconduct allegations proven – penalty fair and reasonable in all the circumstances – appeal dismissed.

Taylor v Destination NSW [2017] NSWCATAD 272
ADMINISTRATIVE LAW – GIPA – Access to information – refusal of access – refusal – correct application of public interest test – discharge of onus – confidential information - failure to consult – correct and preferable decision.

Shoebridge v Office of Environment and Heritage [2017] NSWCATAD 275
ADMINISTRATIVE LAW – access to information – reviewable decisions – processing charges – estimate of processing charges – advance deposit – discount – special public interest – timing of decision – in the nature of preliminary decision – whether discount applied to advance deposit – deemed refusal.

GOVERNMENT INFORMATION – public interests against disclosure – whether information is held by the agency - reasonableness of searches - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information.

McEwan v Port Stephens Council [2017] NSWCATAD 269
GOVERNMENT INFORMATION –public interests against disclosure - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information.

Turner v Legal Aid Commission NSW [2017] NSWCATAD 270
ADMINISTRATIVE Law - GIPA Act – Government Information – Access –Sufficiency of search.

DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225
ADMINISTRATIVE LAW — Hearings — Procedural fairness — whether applicant withdrew from hearing or withdrew from appeal — whether applicant denied procedural fairness. ADMINISTRATIVE LAW — Jurisdiction — Inherent jurisdiction — discretion to refuse prerogative relief — length of delay — whether in the best interests of the child. CIVIL PROCEDURE — Court of Appeal — Application — summons for judicial review — extension of time to commence proceedings — raises questions of general importance — extension of time granted. CIVIL PROCEDURE — Representation — Unrepresented litigants — Assistance of court — scope of court's obligation to assist unrepresented litigants. CIVIL PROCEDURE — Registrars — Powers of Registrar — power to waive, postpone and remit fees. FAMILY LAW AND CHILD WELFARE — Child Welfare under State Legislation — children in need of protection — amendment to care plan under Children and Young Persons (Care and Protection) Act 1998 (NSW) — whether amendment to care plan in absence of applicant gave rise to procedural unfairness.

Legislation

Commonwealth

Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017
Senate Second reading debate 14/09/2017 - Amends the Criminal Code Act 1995 to: prohibit the wearing of full face coverings in public places under the jurisdiction of the Commonwealth if the threat level under the National Terrorism Threat Advisory System is higher than 'possible'.

Marriage Law Survey (Additional Safeguards) Bill 2017
Finally passed both Houses 13/09/2017; Assent Act no: 96 Year: 2017 13/09/2017 - The Bill ensures that the survey has a comprehensive suite of safeguards in place to allow the expression of free and informed views, to allow persons to hold and express views without being vilified and ensures the public communications are clearly authorised, so people know who is communicating with them, and to prevent undue influence through bribery, threats and misleading or deceptive publications.

Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
Introduced and read a first time 13/09/2017; Second reading moved 13/09/2017.
The Bill will introduce new offences and a new injunction power to prohibit and prevent conduct amounting to false representation of a Commonwealth body. Specifically, the offences and the injunction power will prohibit a person from falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body.

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017
House of Representatives Introduced and read a first time 13/09/2017; Second reading moved 13/09/2017. This Bill better protects the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all aspects of the child sex offender cycle from the commission of an offence, to bail, sentencing and post-imprisonment.

Customs Amendment (Safer Cladding) Bill 2017
Introduced Senate 11/09/2017
The bill amends the Customs Act 1901 to expressly ban the importation of polyethylene (PE) core aluminium composite panels (ACPs). There cannot be, in light of the Grenfell Tower tragedy, legitimate use of PE core ACPs on any building type. There are safe non-flammable and fire retardant alternatives available and a ban on the importation of PE core ACPs will encourage the use of such alternatives.

Investigation and Prosecution Measures Bill 2017
Registered 13/09/2017; Introduced HR 13/09/2017
A Bill for an Act to amend the law relating to the Independent Commission Against Corruption of New South Wales and the prosecution of offences on Norfolk Island.

Electoral and Other Legislation Amendment Bill 2017
Senate Introduced and read a first time 07/09/2017; Second reading moved 07/09/2017
Implements the Government's response to the recommendations of the Joint Standing Committee on Electoral Matters' report The 2016 Federal Election: Interim Report on the authorisation of voter communication by amending the: Commonwealth Electoral Act 1918 to: apply the electoral authorisation requirements to modern communication channels; require all paid electoral advertising to be authorised; require entities subject to the electoral funding and financial disclosure regime to include this information in their political communications; ensure the obligation to authorise electoral and referendum matter primarily rests with those responsible for the decision to communicate it; and replace the current criminal non-compliance regime with a civil penalty regime to be administered by the Australian Electoral Commission; Referendum (Machinery Provisions) Act 1984, Australian Broadcasting Corporation Act 1993, Broadcasting Services Act 1992 and Special Broadcasting Service Act 1991 to harmonise authorisation requirements across broadcasting, electoral and referendum legislation; Parliamentary Proceedings Broadcasting Act 1946 to make consequential amendments; and Criminal Code Act 1995 to introduce an offence which criminalises false representations in relation to a Commonwealth body.

Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Finally passed both Houses 05/09/2017 - Amends the Fair Work Act 2009 to: increase maximum civil penalties for certain serious contraventions of the Act; hold franchisors and holding companies responsible for certain contraventions of the Act by their franchisees or subsidiaries where they knew or ought reasonably to have known of the contraventions and failed to take reasonable steps to prevent them; clarify the prohibition on employers unreasonably requiring their employees to make payments in relation to the performance of work.

Commonwealth Electoral Amendment (Donation Reform and Transparency) Bill 2017
House of Representatives: Removed from the Notice Paper in accordance with (SO 42) 05/09/2017 - 2017Amends the Commonwealth Electoral Act 1918 to: reduce the disclosure threshold to $1000; ensure that, for the purposes of the disclosure threshold and the disclosure of gifts, related political parties are treated as one entity; prohibit the receipt of a gift of foreign property and all anonymous gifts by registered political parties, candidates and members of a Senate group; provide that public funding of election campaigning is limited to declared expenditure incurred by the eligible political party, candidate or Senate group, or the sum payable calculated on the number of first preference votes received where they have satisfied the four per cent threshold, whichever is the lesser; provide for the recovery of gifts of foreign property, anonymous gifts and undisclosed gifts; introduce new offences and penalties; and increase penalties for existing offences.

Regulation

Do Not Call Register (Administration and Operation) Determination 2017
13/09/2017 - This instrument determines the requirements for applications for registration, as well as other requirements regarding the registration, correction and removal of numbers on the Do Not Call Register.

High Court (2018 Sittings) Rules 2017
11/09/2017 - These Rules of Court appoints the High Court's days of sittings for 2018.

NSW

Bills introduced Government – 15 September 2017

Justice Legislation Amendment Bill (No 2) 2017
The object of this Bill is to make various amendments to the following Acts and Regulation within, or with provisions relating to matters within, the Justice portfolio – Schedule 1.2 amends the Civil and Administrative Tribunal Act 2013.
(a) to include a decision of the Tribunal to grant leave (or refuse to grant leave) for a person to represent a party to proceedings to be an interlocutory decision for the purposes of that Act, allowing any such party a right to appeal that decision, and
(b) to provide that when the Tribunal is constituted by 2 members, each member must have certain qualifications, including that of an Australian lawyer, but must not have the same qualification as the other member, and
(c) to confirm that the Appeal Panel may exercise all the functions that are conferred on the Tribunal when varying, or making a decision in substitution for, the Tribunal and may do so on grounds not relied upon by the Tribunal, and
(d) to enable certain persons, with the leave of the Local Court or District Court, to commence proceedings in the Court for the determination of original applications and external appeals that the Tribunal cannot determine because they involve the exercise of federal diversity jurisdiction (that is, jurisdiction referred to in section 75 (iv) of the Commonwealth Constitution).

Non-Government – 15 September 2017

Summary Offences Amendment (Full-face Coverings Prohibition) Bill 2017
The object of this Bill is to make it an offence (maximum penalty of $550) for a person, without reasonable excuse, to wear a face covering while in a public place. A face covering is defined as any article of clothing or other thing (such as a helmet) that hides the face of a person in a way that conceals the person's identity. The Bill provides that a person's religious or cultural belief does not constitute a reasonable excuse for the purposes of the proposed offence. The prohibition does not extend to the wearing of face coverings in churches or other places of worship.
The Bill also makes it an offence (maximum penalty of $1,100) to compel another person, by means of a threat, to commit the proposed offence of wearing a face covering in a public place.

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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Authors
Christine Jones
 
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