Australia: NSW Government Bulletin - 22 August 2018

Last Updated: 28 August 2018
Article by Christine Jones, Greg Wrobel, Bede Haines, Michael Selinger, Lyn Nicholson, Robina Kidd, Vanya Lozzi, Cameron Sheather, Breellen Warry, Lindsay McGregor, Alexander A McNutt, Peter Holt and Scott Alden
Most Read Contributor in Australia, September 2018

In the media

Islamic leader accused of illegal land clearing says his group is exempt from Australian law
A religious leader accused of illegal land clearing on a rural property used for religious prayer claims a western Sydney council is infringing on his group's religious freedoms by pursuing him over the allegations (18 August 2018). More...

The OAIC welcomes the appointment of Angelene Falk as Australian Information Commissioner and Privacy Commissioner
The OAIC welcomes the Attorney-General's announcement of the appointment of Angelene Falk as Australian Information Commissioner and Privacy Commissioner for a three year term (17 August 2018). More...

Tough penalties for inciting violence now in force
Anyone who incites or threatens violence against people based on their race, religion, sexual orientation, gender identity, intersex or HIV/AIDS status in NSW will now face up to three years in prison, under new laws that came into force in mid-August (17 August 2018). More...

A waterfront block in NSW was sold for $38k, now the deal has been referred to ICAC
The sale of government land on the New South Wales central coast waterfront for the bargain price of $38,000 has locals up in arms and prompted Greens MP David Shoebridge to refer the matter to the Independent Commission Against Corruption (17 August 2018). More...

Appointment of Australian Information Commissioner and Privacy Commissioner
Ms Angelene Falk has been appointed Australian Information Commissioner and Privacy Commissioner for a three year term effective from 16 August 2018 (17 August 2018). More...

Body of work' needed on slavery in supply chains
One in five procurement managers say their organisation hasn't taken steps on modern slavery. Experts say the Modern Slavery Act will significantly impact how governments and companies procure goods and services, so why aren't more procurement managers ready (16 August 2018). More...

LCA: Penalties for non-compliance essential to Modern Slavery Bill
The Law Council welcomed the introduction of the Bill, and proposed inclusion of a modern slavery reporting requirement for corporations and other entities, but remains concerned the threshold for attracting the reporting requirements is set too high at $100 million and should be revised to $60 million. The lack of penalties in the legislation for non-compliance with the reporting requirements means there is little incentive for entities to report (09 August 2018). More...

Eminent Jurist to Lead Digital Assets Review
NSW Attorney General Mark Speakman announced retired Federal Court judge Hon Dr Annabelle Bennett AO SC will lead a review of laws about access to people's social media accounts and other digital assets after they die or become incapacitated. Note: An options paper seeking stakeholder submissions will be published later this month (08 August 2018). More...

In practice and courts

NSW Justice: Task Force – Terms of Reference
The Task Force is established with the objective of assessing the circumstances and CSNSW's subsequent investigation and management of a number of inappropriate relationships between CSNSW staff and offenders. The confidential email address is: and remain open for 13 weeks (End September 2018). More...

NSW Justice: Review of the Crime Commission Act 2012
The Crime Commission Act 2012 is being reviewed to determine if the whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. Submissions closed on 20 August 2018. More...

Strengthening child sexual abuse laws in NSW
The NSW Government has prepared a discussion paper that identifies issues and poses questions about possible options for child sexual abuse law reform. The paper considers the recommendations made by the Royal Commission and the recommendations of the NSW Parliament's Joint Select Committee on Sentencing of Child Sexual Assault Offenders. Submissions close 6 October 2017. More...

ICAC: Operation Skyline public inquiry
The Operation Skyline public inquiry into allegations concerning the Awabakal Local Aboriginal Land Council is adjourned until Monday, 17 September 2018 (17 August 2018). More...

ICAC: Operation Dasha public inquiry
The Operation Dasha public inquiry into allegations concerning the former Canterbury City Council is currently adjourned (17 August 2018). More...

ICAC: Prosecution briefs with the DPP and outcomes
Tables summarising information about briefs that are with the DPP, and prosecution outcomes. Last updated 14 August 2018. More...

Published – articles, papers, reports

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.

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.


O'Hare v Department of Fair Trading [2018] NSWCATOD 134
Administrative law – administrative review – application to review a decision not to take action against a real estate agent following a complaint from the public under the Property, Stock and Business Agents Act 2002 – administrative review sought by member of the public – no jurisdiction in Administrative and Equal Opportunity Division to determine application – applicant with standing.

Whitaker v Illawarra Shoalhaven Local Health District [2018] NSWCATAD 183
ADMINISTRATIVE REVIEW – Government Information (Pubic Access) - consideration of impact of personal circumstances on access applicant – consideration of whether information provided to a workers compensation investigation conducted by an external investigator appointed by an external insurer was confidential information provided in accordance with the Agency's Managing Misconduct Policy – information provided to workers compensation investigation when it was on the cards that information would have to be disclosed to worker in future – information not confidential information prepared for misconduct investigation – consideration of whether release would reveal an individual's personal information – consideration of whether release would expose a person to a risk of harm or of serious harassment or serious intimidation – no evidence of risk – consideration of competing public interest.

Lipscombe v Blue Mountains City Council [2018] NSWCATAD 182
ADMINISTRATIVE LAW – Government Information (Public Access) Act – legal professional privilege – whether privilege waived – sufficiency of evidence to establish weight to apply significantly to factors against disclosure.

CJU v NSW Ministry of Health [2018] NSWCATAD 181
ADMINISTRATIVE REVIEW – privacy – review of conduct of a public sector agency – whether conduct of the agency was a breach of the disclosure information protection principle in the Privacy and Personal Information Protection Act 1998 - disclosure of personal information.

DLT v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 180
ADMINISTRATIVE LAW – privacy – health information – personal information - summary dismissal – whether conduct has been identified – evidence - application lacking in substance.

Levick v Building Professionals Board [2018] NSWCATOD 125
ADMINISTRATIVE REVIEW – accredited certifier – finding of unsatisfactory professional conduct – conduct not sufficiently serious to amount to professional misconduct – appropriate penalty.

Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191
GIPA application-excluded information-held no entitlement to information Recording of Tribunal proceedings – application by party-held no valid reason for exercise of discretion Non-publication order-representative of party has made threats and engaged in inappropriate conduct-use of social media-held non-publication order justified.

Dezfouli v Justice Health and Forensic Mental Health Network (No 9) [2018] NSWCATAD 170
ANTI-DISCRIMINATION – Where complaint of sexual harassment declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave.
NON-PUBLICATION ORDER – Principle of open justice – Whether desirable to make order prohibiting publication of name of individual against whom applicant's complaints had been made.

CJU v SafeWork NSW [2018] NSWCATAD 171
Privacy - bias The applicant's complaint is that Mr Covi of the respondent had breached her privacy and confidentiality without her consent in October 2016 by the release of information to the NSW Crown Solicitor's Office (CSO) in response to an enquiry in connection with a related dispute about a breach of the applicant's privacy with the NSW Health Service (NSW Health).

Manning v Bathurst Regional Council [2018] NSWCATAD 176
ADMINISTRATIVE LAW – government information – fees and charges - where agency required the payment of an advance deposit – how deposit should be calculated - whether financial hardship can be considered in estimating the processing charges – whether advance deposit should be set aside.

Walker v NSW Department of Premier and Cabinet [2018] NSWCATAD 178
ADMINISTRATIVE LAW – public access to government information – access to Cabinet information – reasonable grounds for claim that information is Cabinet information –waiver – meaning of 'report' - reasonableness of searches - the Applicant requested access to the following information: "Report by Consultancy KPMG - Analysis and Modelling on Council Mergers".

Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development [2018] NSWCA 174
CONSTITUTIONAL LAW – legislation and legislative powers – extraterritorial operation of legislation – whether the Fisheries Management Act 1994 (NSW) and Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) invalid.
CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – inconsistency of laws (Constitution, s 109) – whether Fisheries Management Act 1994 (NSW) and Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) inconsistent with Commonwealth legislation.
CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution – alteration of limits of States (Constitution, s 123) – whether Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) alters the limits of New South Wales.


Proclamations commencing Acts
Companion Animals and Other Legislation Amendment Act 2018 No 27 (2018-438) — published LW 17 August 2018

Regulations and other miscellaneous instruments
Child Protection (Offenders Registration) Amendment (Restructuring of NSW Police Force) Regulation 2018 (2018-439) — published LW 17 August 2018

Young Offenders Amendment (Restructuring of NSW Police Force) Regulation 2018 (2018-450) — published LW 17 August 2018

Bills introduced Government
Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2018
RSL NSW Bill 2018

Bills passed by both Houses of Parliament
Unexplained Wealth (Commonwealth Powers) Bill 2018

Proclamations commencing Acts
Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 No 32 (2018-422) — published LW 10 August 2018 - The legislation creates a new offence in the Crimes Act of publicly threatening or inciting violence against people on the grounds of race, religious affiliation, sexual orientation, gender identity, intersex or HIV/AIDS status.

Regulations and other miscellaneous instruments
Local Government (Regional Joint Organisations) Further Amendment Proclamation 2018 (2018-426) — published LW 10 August 2018
Subordinate Legislation (Postponement of Repeal) Order 2018 (2018-428) — published LW 10 August 2018

Bills introduced Government
Road Transport Legislation Amendment (Penalties and Other Sanctions) Bill 2018

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
Michael Selinger
Lyn Nicholson
Peter Holt
Scott Alden
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