In the media
Trial of Mr Wang Quanzhang
In this letter to Foreign Affairs Minister Marise Payne,
Law Council President, Arthur Moses SC, calls for China to be held
accountable for detaining human rights lawyer Wang Quanzhang
without charge (17 January 2019). More...
Dutton's citizenship - stripping plan attacked by
Australian Human Rights Commission
The Australian Human Rights Commission has warned Peter
Dutton’s proposal to lower the bar for stripping people
convicted of terrorism or related offences of Australian
citizenship could render people stateless and would be
retrospective in application. This is in possible violation of
international law or the rule of law (15 January 2019). More...
IBAC charges a former Frankston City Council manager and
a council service provider with multiple offences
Victoria's independent anti-corruption commission,
IBAC, has charged a former Frankston City Council manager with 79
charges including obtaining property by deception, making false
documents, using false documents and misconduct in public office.
IBAC also charged a supplier of services to Frankston City Council,
who is the owner of an electrical company, with 78 similar
offences, on 7 January 2019 (14 January 2019). More...
Statement from Attorney-General Yvette D’Ath
Robert John Fardon will be an automatic reportable
offender for the rest of his life under the Palaszczuk
Government’s tough new legislation to protect the community
from child sex offenders (16 January 2019). More...
Federal Circuit Court: Success under strain
Recent reports from the Federal Circuit Court
(FCC) reveal waiting times for Brisbane families
have halved, a result Queensland Law Society President Bill Potts
has welcomed. This Australian-first case management experiment saw
three judges undertake intensive case management of all cases until
they settled or went to trial (14 January 2019). More...
Government's $444m grant to reef body did not comply
with transparency rules, Audit Office says
The auditor-general criticises the Environment
Department's assessment of whether a funding allocation worth
nearly half a billion dollars was good value for money (16 January
2019). More...
My Health Record system data breaches rise
The number of data breaches involving My Health Record has
risen year-on-year, from 35 incidents in the last financial year to
42 incidents this year, a report by the Australian Digital Health
Agency (ADHA) has shown (10 January 2019).
More...
Cautious approach for sex offender register required,
says Law Council
While the Law Council of Australia does not object in
principle to the establishment of a National Public Register of
Child Sex Offenders, it believes only offenders who pose a
demonstrated risk to children should be required to register.
He also stated inclusion on such a register should never be
automatic (09 January 2019). More...
Free online pathways to solve legal problems
The LawAccess NSW website now provides two interactive
guided pathways to match people with the information they need to
resolve their issues before they spiral out of control, with
another four pathways on other topics to come in 2019 (09 January
2019). More...
‘High risk’ persons may be left stateless
with current laws, Law Council says
The nation’s top legal body wants Australia’s
government to be more discerning about the stripping of citizenship
as current laws creates a high risk that some people may be left
stateless (05 January 2019). More...
Law Council of Australia and Law Society of Western
Australia regarding imprisonment for unpaid fines
The Law Council of Australia and the Law Society of
Western Australia urge the Western Australian government to repeal
laws that provide for imprisonment as a result of unpaid fines as
it has a discriminatory impact upon those who are cannot afford to
pay fines (08 January 2019). More...
New tenancy laws help domestic violence victims living
in NSW rentals
Long-awaited, and some of the most significant changes to
NSW tenancy laws are set to strengthen the protection for domestic
violence victims living in rented properties around the state (07
January 2019). More...
Queensland tribunal calls into question ban on firearm
silencers
Police appeal Queensland civil and administrative tribunal
ruling that they reconsider refusal for farmer ‘at extreme
risk’ of hearing loss (03 January 2019). More...
A clearer path for child abuse survivors to sue in
NSW
A child abuse survivor will be able to sue an
unincorporated organisation, which can nominate a proper defendant
with sufficient assets to meet the claim. If it fails to do so, the
court can appoint associated trustees to be sued who can access
trust property to pay the compensation (01 January 2019). More...
Police access to health records raises privacy
concerns
Thousands of records containing sensitive information such
as HIV-status, past abortions and mental health issues are being
requested by the police every year – and doctors and privacy
experts are deeply concerned about it (21 December 2018). More...
Global hack of managed service providers
The Office of the Australian Information Commissioner
(OAIC) advises managed service providers which may
be affected by a global cyber security hack to take steps to ensure
Australians’ personal information is being safeguarded (21
December 2018). More...
In practice and courts
AEC: Funding, Disclosure and Political Parties
Some changes have been made to election funding and
disclosure laws in the Commonwealth Electoral Act 1918
(Electoral Act) as a result of the Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Act
2018 (the FAD Reform Act). From 1 January
2019 the Electoral Act restricts the receipt of donations from
foreign donors. (14 January 2019). More...
Consultation opens on Public Interest
Determination
An application from the Australian Federal Police
(AFP) for a Public Interest Determination is now
open for public comment. The application to the OAIC under s 72 of
the Privacy Act would allow the AFP to disclose limited personal
information about homicide offenders and suspects to the Australian
Institute of Criminology without breaching Australian Privacy
Principle 6. It is intended to replace a previous determination which expired on
1 October 2018. Submissions are due by 1 February 2019. More...
High Court Rules: Amendments to Second Schedule
The Court has agreed to the recommendation of the
Committee for an increase of 2.1% to the solicitors’ costs,
which is to come into operation on 1 January 2019 and will apply in
respect of all work done and services performed by solicitors after
31 December 2018. More...
Practice Direction: Federal Circuit Court
The attached documents are forwarded as part of the
Association’s group email distribution. Federal Circuit Court
- Practice Direction No 1 of 2019 - Judicial
mediations in family law matters. This Practice Direction
commences on 01 January 2019.
AAT Bulletins 2019
The AAT Bulletin is a weekly publication containing a list
of recent AAT decisions and information relating to appeals against
AAT decisions.
Issue No. 2/2019, 14 January 2019
Issue No. 1/2019, 7 January
2019
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 31 January 2019. 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 here.
2019 COAT National Conference
We invite you to join us at the 2019 Council of
Australasian Tribunals (COAT) National Conference,
to be held 6 – 7 June in Melbourne. More...
Current Consultations
Review of the Telecommunication and
Other Legislation Amendment (Assistance and Access) Act
2018, Parliamentary Joint Committee on Intelligence and
Security. This review is in addition to two separate statutory
reviews, amendments to include a review due to commence by April
2019.
Draft Privacy Impact Assessment –
Consumer Data Right, The Treasury. This consultation process
has now been completed 21 December 2018 - 18 January 2019
Sex Discrimination Amendment (Removing
Discrimination Against Students) Bill 2018, Parliamentary
Senate Standing Committees on Legal and Constitutional
Affairs.
The Establishment of a Commonwealth
Integrity Commission, Attorney-General’s Department.
Submissions close on 1 February 2019.
Queensland
Queensland Law Reform Commission Consultation
Paper
The Queensland Law Reform Commission has released a
Consultation Paper on the Review of Queensland’s laws
relating to civil surveillance and the protection of privacy in the
context of current and emerging technologies. The closing date for
submissions is 31 January 2019. The Consultation Paper is available
on the Commission’s website here.
OIC Queensland: GDPR & Queensland Government
Agencies
Although the GDPR is a European privacy law, it could
apply to Australian businesses and government agencies that offer
goods or services to, or monitor the behaviour of, individuals in
the EU (16 January 2019). More...
OIC Queensland website
The Office of the Information Commissioner
(OIC) is currently reviewing its website to look
at where we can make changes to deliver a better experience for our
stakeholders. This survey will close on 5 February 2019 (16 January
2019). More...
Queensland Consultations
Have your say on modernising Queensland's laws on
civil surveillance and the protection of privacy in the context of
current and emerging technologies. Open until 31 January 2019.
More...
Published - articles, papers, reports
President spells out 2019 policy priorities
Law Council of Australia: 17 January 2019. More...
Identity crime and misuse in Australia: results of the
2017 online survey
Susan Goldsmid, Alexandra Gannoni, Russell G. Smith;
Australian Institute of Criminology: 30 December 2018
This report presents findings of the latest survey of identity
crime and misuse undertaken by the Australian Institute of
Criminology as part of the Australian Government’s National
Identity Security Strategy. More...
Estimating the cost to Australian businesses of identity
crime and misuse
Russell G. Smith; Australian Institute of Criminology: 30
December 2018
This study examined the economic scale of the problem of identity
crime and misuse targeting businesses in Australia and provides
estimates of the direct and indirect costs borne by affected
businesses. More...
Award of a $443.3 million grant to the Great Barrier
Reef Foundation
Australian National Audit Office: 16 January 2019
The objective of the audit was to assess whether the award of a
$443.3 million grant to the Great Barrier Reef Foundation was
informed by appropriate departmental advice and a thorough
processes that complied with the grants administration framework.
More...
Cases
Wyvill v Law Society Northern
Territory [2018] FCA
2110
ADMINISTRATIVE LAW – Interlocutory application for
urgent injunctive relief – where applicant seeks orders
restraining respondent from commencing proceedings in Disciplinary
Tribunal or taking action under s 499 of Legal Profession
Act (NT) in relation to complaint – where question
raised as to scope or content of written complaint.
Held: Not satisfied that applicant has arguable case of not having
been provided with complaint in writing, nor of having been denied
opportunity to respond to complaint.
Held: Prima facie case for grant of interlocutory relief not
sufficiently made out.
Held: Interlocutory application dismissed.
James v WorkPower
Inc [2018] FCA 2083
HUMAN RIGHTS – Application for leave to commence
proceeding otherwise barred by operation of s 46PO(3A) of the
Australian Human Rights Commission Act 1986 (Cth) –
where complaint to Australian Human Rights Commission terminated on
the basis it was misconceived or lacking substance –
consideration of principles relevant to Court’s exercise of
discretion to grant leave – whether application arguable and
not fanciful – leave granted.
Fyna Projects Pty Ltd v Deputy
Commissioner of Taxation [2018] FCA
2041
TAXATION – Review of decisions of the Deputy
Commissioner of Taxation to issue notices under s 260-5 of Sch 1 to
the Taxation Administration Act 1953 (Cth).
TAXATION – Whether s 260-5 notices were invalid.
CONSTITUTIONAL LAW – Whether s 260-5 is supported by the
taxation power in s 51(ii) of the Constitution – whether s
51(ii) authorised the issuing of notices to third party debtors of
the applicant in respect of a “tax-related liability”
purportedly created by breach of an earlier notice issued to the
applicant under s 260-5 – whether the true source of
legislative power was s 51(xxxi) of the Constitution.
Australian International College
Pty Ltd v Australian Skills Quality Authority
[2018] FCA 2097
ADMINISTRATIVE LAW – Application for interim stay of
enrolment restriction conditions imposed upon applicant by
Administrative Appeals Tribunal in granting stay of registration
cancellation decisions – where applicant seeks stay pending
final hearing of substantive appeal.
Held: existing and proposed grounds of appeal not made out
sufficiently so as to warrant grant of interlocutory relief.
Held: interlocutory application dismissed with costs.
Administrative Appeals Tribunal Act 1975 (Cth) ss 41(1),
(2), 44(1), 44A(1), 44A(2).
Barkla v Allianz Australia
Insurance Limited [2018] FCA
2070
HIGH COURT AND FEDERAL COURT – Whether vexatious
proceedings order should be made against applicant –
applicant frequently instituting vexatious proceedings over several
years – present proceedings constituting an abuse of process
– applicant conducting present proceedings so as to harass
and annoy – applicant having no respect for the finality of
court decisions – applicant abusing the Court’s
procedures – applicant ignoring directions of the Court -
applicant wasting judicial and administrative resources -
protective purpose of order - vexatious proceedings order made in
terms sought by respondent Acts Interpretation Act 1901
(Cth) s 36; Australian Human Rights Commission Act 1986
(Cth) Sch 2; Commonwealth of Australia Constitution Act, s
5.
'PN' and Australian
Taxation Office (Freedom of information)
[2018] AICmr 71
Freedom of Information — Information as to the
existence of certain documents — documents affecting
enforcement of law — (Cth) Freedom of Information
Act 1982 ss 25 and 37.
'PO' and Australian
Federal Police (Freedom of information)
[2018] AICmr 72
Freedom of Information — Whether disclosure would
endanger the life or safety of a person — whether disclosure
would prejudice lawful methods or procedures — whether
documents subject to legal professional privilege — whether
disclosure of personal information unreasonable — whether
contrary to public interest to release conditionally exempt
documents — Freedom of Information Act 1982 (Cth) ss
11A(5), 22, 37(1)(c), 37(2)(b), 42 and 47F.
Lowis v Workers’
Compensation Regulator [2019] QSC
5
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS
OF REVIEW – Where the applicant claims to have suffered
psychological stress and health issues as a result of workplace
sexual harassment – whether the respondent erred in
considering the exercise of a discretion to grant an extension of
time – whether the respondents’ breached any rule of
natural justice – whether the respondents’ took into
account any irrelevant considerations – whether the
respondents’ took into account relevant considerations -
whether the respondents made any jurisdictional error.
Oaks Hotels & Resorts
Limited v Knauer & Ors [2018] QCA
359
HUMAN RIGHTS – DISCRIMINATION LEGISLATION –
GROUNDS OF DISCRIMINATION – SEX DISCRIMINATION – SEXUAL
HARASSMENT – Where the first respondent was employed by the
second respondent, a wholly owned subsidiary of the applicant
– where the director and chief executive officer of the
applicant arranged for the first respondent to reside free of
charge with the third respondent in a two bedroom unit the third
respondent occupied at another property which was provided by, and
operated by, the applicant – where the third respondent was
employed by the applicant as a night caretaker – where the
first respondent awoke to find the third respondent naked in her
bedroom and the third respondent then indecently assaulted her
– where a member of QCAT held that the applicant was
vicariously liable to the first respondent for a contravention of
the Anti-Discrimination Act 1991 (Qld) by the third
respondent and ordered the applicant and the third respondent to
pay the first respondent compensation for loss and damage caused to
her by that contravention – where the Appeal Tribunal
dismissed the applicant’s appeal – whether the tribunal
misapplied the meaning of the words “in the course of
work”.
Winkler v Orthopaedic Assessment
Tribunal & Anor [2018] QSC
302
ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION
– COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY
– GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW –
Where the Applicant sought compensation from WorkCover which was
rejected and directed for review – where the matter was
referred for review to the Orthopaedic Assessment Tribunal –
where the Applicant seeks Judicial Review of the Tribunal’s
decision – whether the Tribunal’s determination was in
error - whether the Tribunal erred in determining that the
Applicant had not suffered an injury as a worker for the purpose of
the Workers Compensation Rehabilitation Act 2003 –
where the Tribunal failed to properly consider the issue of
aggravation of pre-existing condition – whether the Tribunal
erred in law in failing to provide adequate reasons.
Toodayan & Anor v
Anti-Discrimination Commissioner Queensland
[2018] QCA 349
HUMAN RIGHTS – JURISDICTION AND PROCEDURE –
QUEENSLAND – Where the appellants worked as interns at the
Princess Alexandra Hospital – where the appellants made
complaints to the respondent alleging discrimination arising out of
a police investigation and the related conduct of hospital staff
– where a delegate of the respondent rejected the complaints
on the basis that they were misconceived or lacking in substance
under s 139(b) of the Anti-Discrimination Act 1991 (Qld)
– where an application for judicial review was dismissed
– whether the primary judge erred by failing to find that the
delegate applied the wrong test when rejecting the complaint under
s 139(b) of the Anti-Discrimination Act 1991 (Qld) –
whether the primary judge erred by finding that the evidence before
the delegate did not establish a contravention of the
Anti-Discrimination Act 1991 (Qld).
Anderson-Barr v Queensland
Building and Construction Commission [2018]
QCAT 438
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS
– QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL –
Application to extend time for leave to appeal.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS
– TIME, EXTENSION AND ABRIDGMENT – Where the applicant
filed an application to review a decision out of time – where
the applicant filed an application for an extension of time –
whether application for an extension of time should be granted.
Prestige & Rich Pty Ltd
& Anor v Chief Executive, Department of Justice and
Attorney-General, Office of Fair Trading & Anor
[2018] QCAT 436
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS
– QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL –
Property agents – duties of property agents – handling
trust funds – disbursement of trust money held – claim
against statutory claim fund – reimbursement from agent of
money paid from claim fund.
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS –
CONTROL OF MONEY – Trust funds – disbursement of
deposit – adherence to instructions.
Whaikawa v Commissioner of State
Revenue [2018] QCAT
435
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS
– QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – First
home owner grant – where application made for first home
owner grant was refused – where objection made – where
the decision to refuse the application was confirmed – where
the applicant seeks a review – meaning of ‘interested
person’ for the purposes of s 17 of the First Home Owner
Grant Act 2000 (Qld) – whether all interested persons
must apply for the grant – whether all applicants must comply
with the eligibility criteria.
Barry-O’Neill v
Masters [2018] QCAT 415
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS
– QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL –
Procedure – reopening – where the application for
reopening is filed outside time limit – where parties enter
into agreement for tree removal and pruning works to be undertaken
– where parties agree to dismissal of application –
where terms of agreement not complied with – where applicant
seeks to enforce agreement.
Legislation
Commonwealth
Act Compilation
Referendum (Machinery
Provisions) Act 1984
16/01/2019 - Act No. 44 of 1984
Copyright Act
1968
16/01/2019 - Act No 63 of
1968
Australian Human Rights
Commission Act 1986
14/01/2019 - Act No. 125 of 1986
Independent National Security
Legislation Monitor Act 2010
11/01/2019 - Act No. 32 of 2010 as amended
Public Interest Disclosure Act
2013
11/01/2019 - Act No. 133 of 2013 as amended
Privacy Act
1988
11/01/2019 - Act No. 119 of 1988 as amended
Age Discrimination Act
2004
10/01/2019 - Act No. 68 of 2004
Ombudsman Act
1976
08/01/2019 -Act No. 181 of 1976
Freedom of Information Act
1982
07/01/2019 -Act No. 3 of 1982 as amended
Copyright Act
1968
07/10/2019 -Act No. 63 of 1968 as amended
Telecommunications (Interception
and Access) Act 1979
07/01/2019 - Act No. 114 of 1979 as amended
Regulation
Australian Citizenship (LIN 19/066:
Persons Who May Receive a Pledge of Commitment) Instrument
2019
17/01/2019 - The instrument revokes the Citizenship
(Authorisation) Revocation and Authorisation Instrument 2017 and
operates to authorise persons and the different class of persons
able to receive the pledge of commitment of Australian citizenship.
Disability Services (Principles and
Objectives) Instrument 2018
10/01/2019 - This instrument formulates principles and
objectives to be furthered and guidelines to be complied with in
the administration of the Disability Services Act
1986.
Queensland
No 214 2018 Uniform Civil Procedure (Fees) and Other
Legislation (Vexatious Litigants) Amendment Regulation
2018
This Regulation is made under the Queensland Civil and
Administrative Tribunal Act 2009 and the Supreme Court of
Queensland Act 1991. The Regulation is intended to ensure that
court and tribunal fee waiver provisions do not facilitate
vexatious litigants instituting vexatious proceedings. The
Regulation precludes vexatious litigants applying for fee waivers
for a proceeding, or an application for leave to institute a
proceeding that is subject to a vexatious proceedings order under
the Vexatious Proceedings Act 2005. The Regulation
commenced on 14 December 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.