Australia: NSW Government Bulletin: Recent media releases, reports, cases and legislation

Last Updated: 30 May 2019
Article by Christine Jones and Kim Nguyen
Most Read Contributor in Australia, July 2019

In the media

IPC NSW launches Information Governance Agency Self-Assessment Tools
The Information and Privacy Commission (IPC) NSW launches today on-line Information Governance Agency Self-assessment Tools for all agencies within New South Wales (22 May 2019). More...

Drink and drug driving reforms
From 20 May 2019, new penalties and licence suspensions come into force for lower range drink driving offences, and for driving with the presence of an illicit drug (20 May 2019). More...

Cyber Security NSW
A new office, Cyber Security NSW, has been established within the Department of Customer Service to cement the leadership and coordination role needed to enhance cyber security and decision-making across the NSW Government. Mr Chapman said Cyber Security NSW will strengthen ties across other NSW Government departments, other states and territories, and the federal government, identifying and harnessing best practice in cyber security (20 May 2019). More...

Children's Rights in Relation to the Digital Environment
On 16 May 2019, the Law Council made a submission to the United Nations Committee on the Rights of the Child (UN Committee) regarding a proposed General Comment on Children's Rights in Relation to the Digital Environment (17 May 2019). More...

High Court Releases Reasoning in Spence v Queensland [2019] HCA 15
The High Court of Australia considered the validity and operation of Commonwealth and Queensland laws that regulate the gifts made to political parties. On 17 April, the High Court held that the Queensland laws were valid and that a provision of the Commonwealth law was invalid. The Court published the reasons for this judgment on 15 May 2019 (15 May 2019). More...

Bipartisanship, consultation needed to develop effective national integrity commission model
The Law Council of Australia wholly supports the establishment of a national integrity commission but believes consultation, collaboration and bipartisanship is needed for a functional and effective model to come to fruition (15 May 2019). More...

New high-security cells for terrorist offenders in NSW
New high-security cells have been built at the Goulburn Correctional Complex for extremist and terrorism-related offenders (14 May 2019). More...

Privacy breakdowns a public lesson
The Australian Information and Privacy Commissioner has released a report on the first 12 months of mandatory reporting of privacy breaches, declaring that breaches involving personal information can be prevented through effective training and enhanced systems (16 May 2019). More...

Lessons learned during first 12 months of Notifiable Data Breaches scheme
Data breaches involving personal information may be prevented through effective training and enhanced systems, analysis of the first 12 months of mandatory notifications reveals (13 May 2019). More...

In practice and courts

Thinking big: The Australian Constitution as a law reform project
As part of the ALRC's 'Where next for law reform' project the ALRC is encouraging Australians to think big. Arguably the most significant law reform initiative would be to revise the constitution. We have prepared a short paper to start the conversation (15 May 2019). More...

Law Council of Australia: Submissions
20 May 2019— Law Council
Modern Slavery Act 2018: Draft Guidance for Reporting Entities

16 May 2019— Law Council
Children's Rights in Relation to the Digital Environment

14 May 2019— Law Council
Review of Model Defamation Provisions

JUDCOM: Sentencing Benchbook
Update 43, 24 May 2019 - Appendix A: Pt 4 Div 1A Table — standard non-parole periods at [8-000] and Appendix B: Legislative amendments relevant to the Pt 4 Div 1A Table — standard non-parole periods at [8-100] have been amended to include amendments made by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. More...

IPC NSW on-line Information Governance Agency Self-assessment Tools
The tools will enable agencies to measure the maturity of their information governance systems and implement plans to further develop those systems and confidently meet their information access and privacy requirements. There are two Self-Assessment tools: Information Access Self-Assessment Tool, and Privacy Self-assessment Tool (22 May 2019).

Decisions of interest: Practice support
The NSW Court of Appeal has just published its latest Decisions of Interest Bulletin on the Court of Appeal website (22 May 2019). More...

Common Law Practice Update 107
The Bar Association has published Common Law Practice Update 107, with case notes on sections 5B, 5C, 5F, 5I, 5L and 5O Civil Liability Act 2002 (NSW), ss 34 and 63 Motor Accidents Compensation Act 1999 (NSW); choice of law, limitation periods, medical negligence and more. Download CLPU 107 here (21 May 2019).

District Court of NSW - Protocol for contacting the List Judge
The District Court has published the attached protocol for contacting the List Judge (17 May 2019). More...

ICAC public inquiry into allegations concerning RMS employees' awarding of contracts starts Monday
The NSW Independent Commission Against Corruption's (ICAC) public inquiry into allegations concerning two Roads and Maritime Services (RMS) employees and how they exercised their official functions when awarding contracts (Operation Ember) will start 20 May 2019 (17 May 2019). More...

Practice Note SC CL 11 (Supreme Court Common Law Division - Bail)
Commences on Monday, 3 June 2019. The following applies to bail applications filed prior to 3 June:
Applications filed by Private Practitioners and Legal Aid / ALS (where representation is confirmed).
Bail applications filed between now and 31 May will be listed in a call over on or before 3 June. No adjournments will be granted to a call over after 3 June. More...

NSW LRC: Open Justice Review - Court and tribunal information: access, disclosure and publication
The Attorney General has asked us to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals. See the Terms of reference. The deadline for preliminary submissions is 31 May 2019. More...

Published – articles, papers, reports

Board governance
ANAO: 17 May 2019
This edition of audit insights outlines key messages from a series of recent audits examining the effectiveness of governance boards in four corporate Commonwealth entities. More...

Notifiable Data Breaches scheme: 12-month insights report
Office of the Australian Information Commissioner: 13 May 2019
Entities regulated by the Privacy Act should review this report and use the learnings to enhance their prevention and response strategies for the benefit of all Australians. One of the key messages taken from this inaugural review of the Notifiable Data Breaches (NDB) scheme is that entities must put individuals first. More...

The Jury Project 10 Years On –Practices of Australian and New Zealand Judges
By Professor Jonathan Clough et al
This is a valuable follow-up to earlier work undertaken by Professor Clough for the AIJA. More...

A History of Public Information Officers in Australian Courts: 25 Years of Assisting Public Per-ceptions and Understanding of the Administration of Justice (1993-2018)
By Associate Professor Jane Johnston. More...

The Impacts of Self-Represented Litigants on Civil and Administrative Justice: Environmental Scan of Research, Policy and Practice
By Dr Liz Richardson, Dr Genevieve Grant and Dr Jani-na Boughey. More...

Cases

Spence v Queensland [2019] HCA 15
Is section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in whole or in part and, if in part, to what extent) because it is beyond the Commonwealth's legislative power?
Answer: The section is wholly invalid.
Constitutional law (Cth) - Powers of Commonwealth Parliament - Federal elections - Severance - Where s 51(xxxvi) in application to ss 10 and 31 of Constitution conferred legislative power on Commonwealth Parliament with respect to federal elections - Where Commonwealth Parliament enacted s 302CA within Div 3A of Pt XX of Commonwealth Electoral Act 1918 (Cth) - Where s 302CA relevantly conferred authority on person to make, and on "political entity" to receive and retain, gift not prohibited by Div 3A provided that gift or part of it was "required to be, or may be" used for certain purposes relating to federal elections - Where s 302CA provided for displacement of such authority in circumstances including where State or Territory electoral law required gift or part of it to be kept or identified separately to be used only for purpose of State, Territory or local government election - Whether Commonwealth legislative power with respect to federal elections exclusive or concurrent - Whether s 302CA within scope of Commonwealth legislative power with respect to federal elections - Whether possible to sever s 302CA to preserve part of its operation within scope of Commonwealth legislative power.
Constitutional law (Cth) - Inconsistency between Commonwealth and State laws - Gifts to political parties - Where Queensland Parliament passed amendments to Electoral Act 1992 (Qld) and Local Government Electoral Act 2011 (Qld) prohibiting property developers from making gifts to political parties that endorse and promote candidates for election to Legislative Assembly and local government councils – Whether Queensland amendments inconsistent with s 302CA or framework of Pt XX of Commonwealth Electoral Act - Whether s 302CA invalid for infringing principle in University of Wollongong v Metwally (1984) 158 CLR 447; [1984] HCA 74.
Constitutional law (Cth) - Implied freedom of communication about governmental and political matters – Where amendments to Electoral Act 1992 (Qld) substantially replicated provisions in Election Funding, Expenditure and Disclosures Act 1981 (NSW) upheld in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 - Whether amendments invalid for infringing implied freedom.
Constitutional law (Cth) - Relationship between Commonwealth and States - Doctrine of inter-governmental immunities - Whether implication expounded in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26 operates reciprocally to protect States and Commonwealth from impermissible interference by law of one polity with operations of government in another – Whether s 302CA invalid for contravening Melbourne Corporation principle - Whether Queensland amendments invalid for contravening Melbourne Corporation principle.

Lin v Roads and Maritime Services [2019] NSWCATOD 79
ADMINISTRATIVE REVIEW - bus driver authority - driving offences - dishonest in filling out application form - whether of good repute and fit and proper person to be the driver of a public passenger vehicle. Administrative Decisions Review Act 1997.

Taylor v Mid-Coast Council [2019] NSWCATAD 92
ADMINISTRATIVE REVIEW – Government Information (Public Access) – application for review by person aggrieved by decision to refuse to release information – public interest considerations.

DRT & DRS v NSW Trustee and Guardian [2019] NSWCATAD 88
ADMINISTRATIVE LAW - review under section 62 NSW Trustee and Guardian Act 2009 (NSW) - NSW Trustee and Guardian - interests and welfare of protected person - whether to sell a protected persons property - financial management order.

Police Association of New South Wales v State of New South Wales [2019] NSWSC 587
ADMINISTRATIVE LAW - judicial review - non-reviewable actions - open to decision-maker to regard transfer of police officer as non-disciplinary - no error of law demonstrated - summons dismissed.
STATUTORY INTERPRETATION - privative provisions - ss 88 and 213 of Police Act 1990 (NSW) - insufficiently clear to exclude judicial review. STATUTORY INTERPRETATION - meaning of "non-disciplinary transfer" in Police Act 1990 (NSW) - whether adverse financial impact on officer determinative - relevance of extrinsic materials – whether transfer "non-disciplinary" is informed by Commissioner's reasons and context in which transfer is ordered - loss of allowances not determinative where no change in rank or grade.

Roads and Maritime Services v Farrell; Roads and Maritime Services v Northcott; Roads and Maritime Services v Le Thorn; Roads and Maritime Services v Touba; Roads and Maritime Services v Culpan; Roads and Maritime Services v Hooper [2019] NSWSC 552
ADMINISTRATIVE LAW - Judicial Review - orders sought under s 69 of the Supreme Court Act 1970 (NSW), quashing orders made by the Local Court under s 221B of the Road Transport Act 2013 (NSW), removing licence disqualifications - whether defendants were entitled to make an application for removal of licence disqualification given s 221D of the Road Transport Act 2013 (NSW) - whether the Local Court had power to order the removal of defendants' license disqualifications - Local Court acted without jurisdiction - whether reasons given inadequate - whether the Court's discretion to refrain from making orders under s 69 of the Supreme Court Act 1970 (NSW) should be exercised - orders made by the Local Court removing licence disqualifications are quashed
TRAFFIC LAW AND TRANSPORT - Traffic law - Offences - Licence disqualifications.
COSTS - Party/Party - Appeals - Suitors' Fund - costs as agreed or assessed - certificate granted under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if qualified.

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83
ADMINISTRATIVE LAW - freedom of information - government information public access - public interest considerations.

Onley v Commissioner of the Australian Federal Police; Menon v Commissioner of the Australian Federal Police; Anquetil v Commissioner of the Australian Federal Police [2019] NSWCA 101
CONSTITUTIONAL LAW - application of state laws to Commonwealth statutory scheme - whether state law was a law governing the exercise of federal jurisdiction - application to set aside orders made ex parte under the Proceeds of Crime Act 2002 (Cth) - whether orders may be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16.
CRIME - Proceeds of Crime Act 2002 (Cth), s 39 - orders made for appellants to provide sworn statements in relation to interests in property - whether orders could extend to include interests of companies of which the appellants were directors - whether orders should be set aside.

Rogers v The Independent Liquor and Gaming Authority [2019] NSWSC 548
JUDICIAL REVIEW - stay of decision below - public interest - triable issue - serious prejudice - economic loss - vulnerability to criminal process in absence of stay - stay granted.

DKG v Commissioner of Police [2019] NSWSC 523
ADMINISTRATIVE LAW - Judicial review - Reviewable decisions - Decisions to which judicial review legislation applies - decisions under an enactment - application for permission for a person on a child protection offender register to leave Australia - whether Supreme Court has jurisdiction to hear proceedings for judicial review of decision relating to permission - Criminal Code (Cth), s 271A.1(3).
WORDS AND PHRASES - "competent authority" - Australian Passports Act 2005 (Cth) s 12 and Criminal Code Act 1995 (Cth) s 271A.1(3)(a) - competent authority in NSW is NSW Commissioner for Police.

Legislation

NSW

Proclamations commencing Acts
Crimes Legislation Amendment (Victims) Act 2018 No 88 (2019-201) - published LW 24 May 2019

Regulations and other miscellaneous instruments
Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Regulation 2019 (2019-208) - published LW 24 May 2019

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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