Australia: Queensland Government Bulletin – 21 August 2018

Last Updated: 26 August 2018
Article by Paul Venus, Stephen Burton, Suzy Cairney and Trent Taylor

Most Read Contributor in Australia, September 2018

In the media

Here's how the Government wants to access messaging apps to stop crime
New laws will be unveiled aimed at helping the nation's spy agencies and police monitor and prevent criminal activity through phones and the internet (14 August 2018). More...

'I can do what I like': CFMEU fined more than $500,000 for workplace breaches
Three construction officials who deliberately broke workplace laws at sites in Queensland and Victoria cost their union close to $577,000 in fines, in what the Federal Court describes as "disgraceful and shameful" behaviour (14 August 2018). More...

Huge rise in use of custodial orders given by Magistrates Courts
Magistrates are increasingly using custodial sentences in Queensland courts, research from the Queensland Sentencing Advisory Council has revealed (07 August 2018). More...

In practice and courts

Attorney-General Reviews

Legal assistance review
In 2018, separate and concurrent reviews will be undertaken of the National Partnership Agreement on Legal Assistance Services 2015-2020 (NPA) and the Indigenous Legal Assistance Program (ILAP). The reviews will assess the effectiveness, efficiency and appropriateness of the NPA and the ILAP as mechanisms for achieving their respective objectives and outcomes within available resources, and identify best practice and opportunities for improvement. Submissions close on 28 September 2018.

Statutory Review of the Tribunals Amalgamation Act 2015
The Attorney-General has announced a statutory review of the amalgamated Administrative Appeals Tribunal to examine whether the operations of the tribunal can be further improved to enhance its efficiency and effectiveness in supporting government decision making. Submissions close on 24 August 2018. More...

OPCAT (Optional Protocol to the Convention against Torture) in Australia: Consultation Paper: Stage 2. In this second stage of consultation with civil society, the Australian Human Rights Commission invites comments on the proposals set out in the Interim Report, as well as a further set of questions regarding how OPCAT should be implemented in Australia. The two stages of the commission's consultation are intended to be complementary. Feedback is requested by COB Friday 24 August 2018.

Federal Circuit Court Amendment (Costs and Other Measures) Rules 2018
The judges of the Federal Circuit Court have agreed to miscellaneous amendments which are outlined in the Amendment Rules.

Reminder: Australian Digital Health Agency three month "opt-out period" for My Health Record
As announced by the Australian Digital Health Agency, every Australian will be offered a My Health Record unless they choose not to have one during the three-month opt out period which has been extended to 15 November 2018. A national communications strategy will be implemented to explain the opt-out process. During the opt out period individuals who do not want a record will be able to opt out by visiting the My Health Record website.

Law Council of Australia Update
9 August edition Inquires and consultations as of 7 August 2018.

AAT Bulletins 2018
Issue No. 31/2018, 13 August 2018
Issue No. 30/2018, 6 August 2018

Queensland

OIC Queensland Submission - New Australian Government Data Sharing and Release Legislation
Opening up government data is consistent with, and an important part of, Queensland's right to information 'push model'. OIC supports strategies and initiatives, such as Open Data, that maximise disclosure of government-held information to the community and provide appropriate protections for the community's personal information (August 2018). More...

Sentencing Advisory Council: Sentencing Spotlights on...offence and sentencing trends
Looking at sentencing outcomes between 1 July 2005 and 30 June 2017, the Sentencing Spotlights on... offence and sentencing trends in the Magistrates, District and Supreme Courts provide a picture of sentencing outcomes and how these have changed over time, and help us to understand sentencing patterns, such as how judges and magistrates combine penalties to meet the diverse circumstances of the cases before them (07 August 2018). More...

View the reports here:
View Sentencing Spotlight on... offence and sentencing trends: Queensland Supreme and District Courts
View Sentencing Spotlight on... offence and sentencing trends: Queensland Magistrates Courts

CCC Investigations

CCC finalises Ipswich City Council investigation and tables report in Parliament - 14 August 2018
The CCC has tabled a report in State Parliament this afternoon following the completion of its investigation into Ipswich City Council.

Further charges in Ipswich City Council investigation - 10 August 2018
This afternoon the Crime and Corruption Commission issued two men with Notices to Appear in Court as a result of its corruption investigation into Ipswich City Council.

Practice directions

The Chief Justice of the Supreme Court of Queensland has issued the following practice directions:
Practice Direction 15 of 2018 – Persons under a legal disability (06 August 2018).

The Chief Judge of the District Court of Queensland has issue the following practice directions:
Practice Direction 10 of 2014 – Electronic devices in courtrooms (amended) (08 August 2018).

QLRC: Civil surveillance and privacy review; Workplace surveillance review
Employers use optical surveillance, data monitoring and tracking devices for a number of legitimate reasons, including to ensure employee health and safety, protect property from theft and damage, prevent fraud and monitor employee performance. The terms of reference can be found at www.qlrc.qld.gov.au and the QLRC will report back by 1 July 2019 (civil surveillance) and by 30 June 2020 (workplace surveillance).

QAO Consultation: Coronial services
The objective of this audit is to assess whether agencies are effective and efficient in supporting the coroner to investigate and help prevent deaths, from July-September 2018. More...

Queensland Sentencing Advisory Council
Registrations now open — Expanding the toolbox: sentencing reform across Australia.
Date: August 2018 More...

Published – articles, papers, reports

Australian National Audit Office (ANAO) Annual Report 2017-18
ANAO: 14 August 2018
This annual report documents the performance of the Australian National Audit Office (ANAO) in the financial year ending on 30 June 2018. The report addresses all applicable obligations under the Public Governance, Performance and Accountability Act 2013 (PGPA Act); the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule); the Auditor-General Act 1997.

Anti-racism in 2018 and beyond
Australian Human Rights Commission: 13 August 2018
Since 2015, race has dominated headlines and driven public debates in a way that many would not have anticipated when the National Anti-Racism Strategy was last evaluated. Globally, the rise of anti-immigrant populism has fuelled racism. Australia has not been immune from this. While our multicultural consensus remains strong, it has been challenged by some.

The future of email archives
Task Force on Technical Approaches for Email Archives
Council on Library and Information Resources: 10 August 2018
This report articulates a conceptual and technical framework in which current efforts to preserve email can operate not as competing solutions, but as elements of an interoperable toolkit, and identifies missing elements and areas for additional community growth.

Internet activity – proposed record keeping rules: consultation paper
Australian Competition and Consumer Commission: 09 August 2018
The purpose of this consultation is to seek submissions from a range of stakeholders, including industry and data users, on the ACCC's proposed Internet Activity Record Keeping Rule (RKR).

Watch out for spit parties: Privacy questions about recreational genomics
Baer A B, (2018) 15(5) Privacy Law Bulletin 76
This article looks at the privacy aspects of recreational genomics, an emerging industry in which consumers gift or sell genomic data to find an association with ancestors or identify supposed susceptibility to genetic disorders. Salient privacy concerns include gifting of data that encompasses biological relatives and the use by law enforcement agencies of large-scale private sector genomic databases.

Strategic governance of risk: Lessons learnt from public sector audit
ANAO: 08 August 2018
Grant Hehir, Auditor-General for Australia, attended the Institute of Internal Auditors-Australia 'Public Sector Internal Audit Conference' on 31 July 2018, and presented an opening keynote session titled Strategic governance of risk: Lessons learnt from public sector audit.

OAICNet 08 August 2018
Notifiable Data Breaches Quarterly Statistics Report released; My Health Records; Forward priorities for consultation; Right to Know Day — 28 September 2018; Recent IC review decisions.

Culture and corruption risks in local government: Lessons learned from an investigation into Ipswich City Council (Operation Windage)
CCC: August 2018
The CCC's report titled Culture and corruption risks in local government: Lessons learned from an investigation into Ipswich City Council (Operation Windage) outlines the corruption risks from governance failures and cultural issues in local government. The CCC has made four recommendations to address these corruption risks across the broader local government sector.

Improving the recognition of foreign judgments: Model law on the recognition and enforcement of Foreign Judgments
Commonwealth Secretariat, (2017) 43(3-4) Commonwealth Law Bulletin 545
This paper describes the background to the Commonwealth Model Recognition and Enforcement of Foreign Judgments Bill, including the relationship with Hague Convention on Choice of Court Agreements, and the present resumed Hague Conference work on a possible Convention on the recognition and enforcement of foreign judgments. The paper highlights the differences between these different initiatives and the relative advantages of the draft Commonwealth Model Bill.

Cases

Knowles v Australian Information Commissioner [2018] FCA 1212
PRACTICE AND PROCEDURE – application for summary dismissal – where the applicant had applied for judicial review of four decisions of the Australian Information Commissioner – where the Commissioner sought summary dismissal of the whole application – whether the application should be summarily dismissed pursuant to s.31A of the Federal Court of Australia Act 1976 (Cth) – whether the applicant has no reasonable prospect of successfully prosecuting the proceeding – whether there is a real question of contested law or fact that should be decided at trial. Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.5(1)(a), 5(1)(f), 5(1)(h), 5(2)(a), 5(2)(b), 6, 6(1)(b), 6(1)(e), 6(1)(f), 6(2)(a), 6(2)(b), 6(2)(f), 10(2)(b)(ii), 16(1)(a), 16(1)(b), 16(1)(c).

Ford v Comcare [2018] FCAFC 127
The appeal be allowed. The Tribunal's decision be set aside and the matter be remitted to the Tribunal to be determined according to law. The applicant, Matthew Ford, appeals pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (Tribunal) affirming the refusal of the respondent, Comcare, to pay him workers' compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for an injury he claimed arose out of or in the course of his employment with the Civil Aviation and Safety Authority (CASA).

Young v Crime and Corruption Commission [2018] QCA 190
QUEENSLAND CIVIL PRACTICE – Uniform Civil Procedure Rules 1999 – Appellate Proceedings Ch 18 – PROCEDURAL – Rule 747 Content of Notice of Appeal – where the applicant instituted proceedings against the Crime and Corruption Commission, which then applied to set aside the Claim and Amended Statement of Claim – that application was successful and the Claim and Statement of Claim was struck out – where the applicant appealed from that decision – where due to the contents of that Notice of Appeal it came before the President of the Court of Appeal – where his Honour found that the Notice of Appeal did not articulate any rational ground of appeal – where the applicant seeks the leave of the Court to file another Amended Notice of Appeal – whether the applicant's draft Notice of Appeal could be articulated in a way that could be permitted to go forward to the Court of Appeal.

Fisher v Wenzel (No 1) [2018] QCAT 261
REAL PROPERTY – Boundaries of land and fencing
PROCEDURE – Civil Proceedings in state and territory courts – Judgments and Orders – Enforcement of judgments and orders – where respondents brought enforcement proceedings in Magistrates Court of Queensland against applicants for payment of contribution for fencing costs – where enforcement proceedings adjourned because of application to renew Tribunal orders or reopen proceedings.
ADMINISTRATIVE LAW – Administrative Tribunals – Queensland Civil and Administrative Tribunal – where applicants applied for renewal of Tribunal decision or reopening of proceedings – whether grounds for renewal or reopening established.
PROCEDURE – Civil proceedings in state and territory courts – Time, extension and abridgement – where applicants applied for extension of time for filing application for renewal or reopening – whether grounds for extension established.
PROCEDURE – Civil proceedings in state and territory courts – whether application for renewal of decision or reopening of proceedings frivolous and vexatious and an abuse of process – whether compensation recoverable – whether restorative justice available to respondents.

Lee & Anor v Department of Justice and Attorney General & Ors [2018] QCAT 260
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – agents – representation – where a real estate agent made a representation that transfer duty was not payable by the buyers – where it is alleged the agent made a representation to the buyers that they would forfeit the deposit if they terminated the contract – where the buyers had opportunities to avoid or mitigate financial loss – where the buyers proceeded with the contract – whether any financial loss suffered as a result of the representations – where it was held that the buyers have not established that they have suffered loss as a result of the representations of the agent.

O'Toole & Anor v Qld Building Company Pty Ltd [2018] QCAT 257
ADMINISTRATIVE LAW – Administrative Tribunals – Queensland Civil and Administrative Tribunal – where applicants did not comply with process established by Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – where application dismissed for lack of jurisdiction.

RDF v State of Queensland (Education Queensland) [2018] QCAT 254
ADMINISTRATIVE LAW – Administrative Tribunals – Queensland Civil and Administrative Tribunal – application for an interim order or injunction following referral of discrimination complaint pursuant to s.58 or s.59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where enrolment application for child accepted by school in error – where child did not meet the minimum age requirements for enrolment – where respondent repealed decision to enrol – where applicant submitted this constituted direct discrimination on the basis of age – where applicant made complaint of age discrimination to the Anti-Discrimination Commission Queensland which was referred – where application for an interim order or injunction pursuant to s.58 or s.59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Hutchinson v Comcare (No 2) [2018] FCA 1179
PRACTICE AND PROCEDURE – interlocutory application for summary judgment in respect of all or part of a proceeding under s.31A of the Federal Court of Australia Act 1976 (Cth) and/or r.26.01 of the Federal Court Rules 2011 (Cth) – principles relevant to summary judgment applications - whether no reasonable prospect of success in applicant's claim that "reprisal action" was taken against her under s.13 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) – whether claim under the PID Act is an abuse of process because it is being pursued for collateral purposes – principles applicable to establishing abuse of process – application for summary judgment dismissed.

Gropel v Comcare [2018] FCA 1146
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – liability to pay compensation under section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – when "disease" suffered within meaning of the term as defined in section 5B – whether exclusion in definition of "injury" under section 5A engaged – nature of causal connection required by exclusionary phrase in section 5A(1). Safety, Rehabilitation and Compensation Act 1988 (Cth).

Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140
ADMINISTRATIVE LAW – application for judicial review of decision by Administrative Appeals Tribunal to issue direction under s.37(2) of Administrative Appeals Tribunal Act 1975 (Cth) – where direction compels applicant to produce internal legal advices prepared in relation to respondent – whether Tribunal erred in forming opinion that the internal legal advices "may be relevant" to its review – whether asserted error was a jurisdictional error or an error within jurisdiction – whether subjective material can be relevant to objective assessment – held: basis on which Tribunal formed an opinion that legal advices may be relevant was not open to it – held: Tribunal's decision to issue direction was made without lawful formation of the opinion giving rise to jurisdiction and thus constituted jurisdictional error.

Changshu Longte Grinding Ball Co., Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCA 1135
STATUTES – Customs Act 1901 (Cth) – Part XVB – ferrous grinding balls exported from China to Australia – judicial review of anti-dumping measures.
STATUTES – Customs (International Obligations Act) Regulation 2015 (Cth) – determination of cost of production or manufacture – determination of administrative, selling and general costs – normal value of goods – determination of profit.
ADMINISTRATIVE LAW – whether reviewable error in using benchmark price from third countries to determine cost of production or manufacture in country of export – whether the Minister failed to consider a mandatory relevant consideration, namely comparative advantages or disadvantages in country of export – whether calculation of amount of profit was illogical, irrational or unreasonable – whether Minister's decision is irrational, illogical and unreasonable either in its outcome or its methodology.

Butler and Commonwealth Scientific and Industrial Research Organisation (Freedom of information) [2018] AATA 2668
FREEDOM OF INFORMATION – where Applicant seeks documents from the CSIRO regarding testing of fire alarms – whether documents are exempted from the Freedom of Information Act 1982 (Cth) – section 7 – whether request was in respect of documents in respect of the CSIRO's commercial activities – commercial activities – whether activities undertaken on a commercial basis – whether the CSIRO was in competition with others – the CSIRO was not in competition with others – whether it was reasonably expected in the foreseeable future that the CSIRO would be in competition with others – the documents are exempted – decision under review affirmed.
Freedom of Information Act 1982 (Cth), ss.3, 7, 11, 24, 24AA, 24AB, 55K; Science and Industry Research Act 1949 (Cth), ss.9, 9AA.

Cramp Pty Ltd as Trustee for the Cramp Family Trust v Jongkind [2018] QDC 144
APPEAL AND NEW TRIAL APPEAL PRACTICE AND PROCEDURE - Costs Appeal under s.222 Justices Act 1886 where complaint dismissed and costs awarded according to Scale whether matter involved special difficulty, complexity or importance within the meaning of s.232A Justices Act 1886 s.158B Justices Act 1886.

Peachey v The Chief Executive, Department of Justice and Attorney-General [2018] QCAT 250
ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND –where claim under the Fund was rejected – where application filed to review the decision to reject the claim – where application filed by the decision-maker to dismiss the review application under s.47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether claim lodged out of time – whether power to extend time – whether application to review is misconceived or lacking in substance.

Legislation

Commonwealth

Acts Compilation

Age Discrimination Act 2004
C2018C00322 - Act No. 68

Administrative Decisions (Judicial Review) Act 1977
C2018C00324 – Act No. 59 of 1977

Bills

Plebiscite (Future Migration Level) Bill 2018
16/08/2018 – The Plebiscite (Future Migration Level) Bill 2018 (the Bill) would establish the legislative framework for a compulsory, in-person vote in a national plebiscite that would ask Australians, in view of the level of population increase from migration in the ten years to 2016: "Do you think the current rate of immigration to Australia is too high?".

Regulation

Adult Disability Assessment Determination 2018
10/08/2018 – This instrument enables the Secretary to assess the disability, emotional state, behaviour and special care needs of an adult care receiver and provides a method for rating the person by giving them a score indicating the level of physical, intellectual or psychiatric disability of the person. The instrument includes a test, the Adult Disability Assessment Tool, for assessing and a method for rating a person's disability, emotional state, behaviour and special care needs.

Legislation (Exemptions and Other Matters) Amendment (2018 Measures No. 2) Regulations 2018
10/08/2028 – No longer in force - These regulations amend the Legislation (Exemptions and Other Matters) Regulation 2015 to provide for and clarify exemptions from sunsetting for particular instruments.

Federal Proceedings (Costs) Regulations 2018
06/08/2018 - These regulations repeal the Federal Proceedings (Costs) Regulations 1991 and maintain the costs certificates amounts available for each court.

Queensland

Bills Updated in the last week

National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018
Introduced on 12/06/2018. Stage reached: 2nd reading to be moved on 9/08/2018
The committee's task was to consider the policy to be achieved by the legislation and the application of fundamental legislative principles - that is, to consider whether the Bill has sufficient regard to the rights and liberties of individuals, and to the institution of Parliament. The committee recommends that the Bill be passed.

Police Powers and Responsibilities and Other Legislation Amendment Bill 2018
Introduced on 12/06/2018. Stage reached: 2nd reading to be moved on 9/08/2018
Among the measures proposed in this Bill are increased powers for Queensland police to search properties associated with high risk missing persons such as young children or prior victims of domestic violence.

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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