Australia: Queensland Government Bulletin: Recent media releases, reports in practice and in court, cases and legislation

Last Updated: 24 January 2019
Article by Paul Venus, Stephen Burton, Suzy Cairney and Trent Taylor

Most Read Contributor in Australia, January 2019

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.

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