Australia: NSW Government Bulletin: In the media, in practice and courts, published articles, papers and reports, cases and legislation.

Last Updated: 24 September 2019
Article by Paul Venus and Suzy Cairney
Most Read Contributor in Australia, September 2019

In the media

Parliament backs farmers with Criminal Code Amendment Bill set to become law
The Australian Senate passed the Criminal Code Amendment (Agricultural Protection) Bill, meaning tough new penalties for those who incite trespass, property damage or theft on agricultural land will soon become law. The Attorney General statement here (12 September 2019). More...

Decision-making: a right not a privilege for people with disability
A new interactive e-learning tool is available to promote greater understanding of a person's right to make decisions and how to empower people to be in control of their lives and make their own judgment calls (10 September 2019). More...

ACMA issues $88,200 in infringement notices under NBN rules
The Australian Communications and Media Authority (ACMA) has issued its first infringement notices under rules designed to ensure telcos provide consumers with adequate information about their National Broadband Network (NBN) services (06 September 2019). More...

HRLC: Solitary confinement must be banned, says Ombudsman
Solitary confinement is an archaic way of treating people and is now known to inflict long term and irreversible harm. Today, in a damning report, the Victorian Ombudsman has called on the Andrews Government to prohibit in law the use of solitary confinement (05 September 2019). More...

Child sex offenders to face mandatory sentences under Coalition crackdown
Paedophiles would face mandatory jail sentences and the most serious offenders could be jailed for life under sweeping changes to Federal sentencing laws to be introduced to Parliament next week (03 September 2019). More...

LCA: Parliament should not interfere with judicial discretion
The Law Council in principle opposes mandatory sentences as there are risks this may produce injustice in some circumstances. Mandatory sentencing risks triggering unintended consequences that are at odds with the intention of the laws and fundamental principles which underpin the administration of justice (03 September 2019). More...

New family responsibilities commissioner appointed
Trailblazing Indigenous and human rights advocate Tammy Williams has been appointed in the role of Family Responsibilities Commissioner (01 September 2019). More...

In practice and courts

LSC: Call for submissions - Managed Investment Scheme Review of Uniform General Rules
The Legal Services Council has commenced its review of the Managed Investment Scheme Uniform General Rules 91A-91D and is seeking submissions from interested parties until 3 October 2019. You can find more information here. Click here for the terms of reference (03 September 2019).

Protocol for the Bar Associations of Australia to raise any concern about Judicial conduct in Commonwealth courts
The Chief Justice of the Federal Court of Australia, the Chief Justice of the Family Court of Australia and the Chief Judge of the Federal Circuit Court of Australia have agreed with the President of the Australian Bar Association (10 September 2019). More...

Senate Inquiries – September 2019

Community Affairs Legislation committee
Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019
Social Services Legislation Amendment (Drug Testing Trial) Bill 2019

Legal and Constitutional Affairs Legislation committee
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 [Provisions]
The impact of changes to service delivery models on the administration and running of Government programs
Nationhood, national identity and democracy
The Legal and Constitutional Affairs Committees has been referred the above inquiry, due to report by May 2020. The Discussion paper is available here (11 September 2019). More...

Reminder: Practice directions - High Court of Australia, No 1 of 2019
Reminder: This Practice Direction takes effect in relation to matters set down for hearing after 1 October 2019. In consultation with the respondent and any interveners, the appellant must prepare a joint book of the authorities which reference will be made during the course of oral argument at the hearing of the appeal. More...

Draft Religious Freedom Bill
The Australian Government invites submissions on a package of legislative reforms on religious freedom. These are the: Religious Discrimination Bill 2019; Religious Discrimination (Consequential Amendments) Bill 2019 and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019. The draft Bills are available on the Attorney-General's Department website. Submissions on the Bills close on 2 October 2019

OAIC Guide to privacy regulatory action
Guide to privacy regulatory action has been updated to provide greater clarity about matters considered by the Commissioner regarding enforceable undertakings and independent experts. The update follows a review of similar policies and enforceable undertakings in relation to other regulatory areas within the Commonwealth (28 August 219). More...

ANAO Performance audit in-progress: Defence's management of its public communications and media activities
Due to table: December, 2019: The objective of this audit is to assess the effectiveness and appropriateness of the Department of Defence's (Defence's) management of its public communications and media activities. More...

Queensland

QLS: Domestic and family violence best practice Gguidelines
The Queensland Law Society's Domestic and Family Violence Committee is seeking feedback from members of the legal profession on its Best Practice Guidelines (BPG) (04 September 2019).

OIC Qld: Dealing with applications for 'all documents'
Access applications under the Right to Information Act 2009 or Information Privacy Act 2009 have specific compliance requirements, which are discussed in the guideline Assessing the Terms of an Access Application (09 September 2019). More...

OIC Qld: What if an applicant sends payment in a form your agency can't accept?
Under the Right to Information Act 2009 (RTI Act), a valid application must be accompanied by the application fee. However, some agencies only accept certain forms of payment or are only able to process forms of payment when they are received in specific ways (12 September 2019). More...

Supreme Court of Queensland

Criminal Practice Rules 1999 and Uniform Civil Procedure Rules 1999 - Forms - Forms 04 Sep 2019
The following forms have been approved:
Criminal Practice Rules 1999
Form 23 - Notice to be served with Form 21 Subpoena Version 4 approved on 3/09/2019
Form 24 - Notice to be served with Form 22 Subpoena Version 3 approved on 3/09/2019
Uniform Civil Procedure Rules 1999
Form 10C - Notice to defendant served outside the jurisdiction Version 1 approved on 3/09/2019

Titles Registry Alert No 155: New process for dealing with registered survey plans
Survey plans lodged for registration on and after the 30th September 2019, will no longer be retained and instead will be destroyed 28 days after registration. This is in line with other Titles Registry documents, excluding original wills and original powers of attorney (03 September 2019). More...

CCC Current Investigations

CCC determines not to investigate the Deputy Premier but calls for improvements to Cabinet processes and legislative reform - 6 September 2019
The CCC has completed its assessment of allegations of corrupt conduct relating to the Hon. Jackie Trad, Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships and her involvement in decision-making relating to Cross River Rail and the Inner City South State Secondary College (ICSSSC).

CCC Statement - Update on the assessment of matters relating to the Deputy Premier - 4 September 2019
The CCC notes reports in the media this morning in relation to the complaint regarding the Deputy Premier. For clarity, the CCC confirms that, at this stage, it expects to conclude its assessment of the matter on 6 September 2019.

The CCC's assessment of allegations relating to the Premier's Chief of Staff to resume - 2 September 2019
The Crime and Corruption Commission (CCC) can confirm the Department of the Premier and Cabinet has provided the CCC with the review undertaken by Ernst and Young.

Current Consultations

Department of Justice and Attorney-General
Proposed reforms to child sexual offence laws
Closes 20 September 2019
Consultation on draft legislation proposing reforms to child sexual offence laws

Discussion paper - changes to the Child Protection Act 1999
Closes 27 September 2019
Have your say about options for changes to the child protection legislation

OIC QLD: Masterclass - Advanced Privacy Complaint Handling
An advanced privacy complaint handling workshop will be held on 21 October 2019. While agencies may not have any control over whether a privacy complaint is made against them they have full control over how they respond to the complaint (August 2019). More...

Published - articles, papers, reports

ACLEI is no substitute for a federal ICAC
Bill Browne, The Australia Institute: 11 September 2019
After the Senate passed the Greens bill to establish a federal anti-corruption commission and the Morrison Government faces new pressure to establish a strong, independent anti-corruption body, this paper argues that the existing Australian Commission for Law Enforcement Integrity (ACLEI) is no substitute for a National Integrity Commission with teeth. More...

Australia's welfare 2019: in brief
Australian Institute of Health and Welfare: 11 September 2019
This report tells the story of welfare in Australia with key findings on housing, education and skills, employment and work, income and finance, government payments, social support, justice and safety. More...

Understanding the attitudes and motivations of adults who engage in image-based abuse
Colette Mortreux, Karen Kellard, Nicola Henry, Asher Flynn
Office of the eSafety Commissioner (Australia): 11 September 2019
This research focuses on perpetrators of image-based abuse and front-line workers who engage with perpetrators on a professional basis. More...

Cases

Minogue v Victoria [2019] HCA 31
Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff's non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened. Constitution, Ch III.

DHP19 v Secretary of the Department of Health [2019] FCA 1451
ADMINISTRATIVE LAW – judicial review of a decision of a delegate of the respondent to cancel the listing of the applicant's product from the Australian Register of Therapeutic Goods pursuant to s 30(2) Therapeutic Goods Act 1989 (Cth)
PRACTICE AND PROCEDURE – application for suspension of operation of decision – whether operation of Secretary's decision should be suspended – whether there is a serious question to be tried – consideration of the balance of convenience and prejudice to the applicant – whether interests of justice favour granting a suspension of the decision – where undertakings offered by the applicant
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 10, 15(1)(a); Federal Court of Australia Act 1973 (Cth) ss 23, 37AF, 37AG(1)(a); Judiciary Act 1903 (Cth) s 39B

Randlab Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2019] FCA 1472
JUDICIAL REVIEW – search warrant – three condition search warrant – where search warrant issued under s 143A of the Agricultural and Veterinary Chemicals Code as scheduled to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (Agvet Code) – whether the decision to issue the search warrant involved jurisdictional error – where applicants claim the warrant was issued unlawfully – where applicants claim the execution of the warrant was unlawful – whether the information on oath was sufficient to justify issuing a search warrant under the Agvet Code – whether the warrant is invalid on the face of the warrant – whether description of the offences was insufficiently particular – where search terms used to identify electronic material – whether transfer of electronic material and its removal from the premises was unlawful under s 132B of the Agvet Code – whether operation of electronic equipment authorised under s 132B of the Agvet Code – whether search and seizure of physical items unlawful – whether executing officers misunderstood the terms of the warrant – whether the warrant authorised the search and seizure of evidential material in subsections (a) and (b) of s 3(1) of the Agvet Code only – severance – whether the invalid parts of the warrant can be severed from the valid parts – whether the Court should exercise its discretion not to return items unlawfully seized
HELD – judicial review application allowed – search and seizure of electronic material and physical items unlawful – property to be returned to the applicants

Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460
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 complaints to the Australian Human Rights Commission terminated on the basis that the complaints were lodged more than 12 months after the alleged acts, omissions or practices took place – whether the Court should exercise the discretion to grant leave.

Estates 77 Pty Ltd v Minister for the Environment [2019] FCA 1427
ADMINISTRATIVE LAW – application for judicial review of a decision made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) – judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) – decision of the Minister under s 75(1) of the EPBC Act – whether the Court can consider whether a proposed action is likely to have a 'significant impact' on listed threatened species of cockatoo – whether a question of jurisdictional fact.

Graham Mahony and Australian Charities and Not-for-profits Commission (Freedom of information) [2019] AICmr 64
Freedom of Information — Whether inclusion of certain matter would cause reasons for decision to be an exempt document — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether contrary to public interest to release conditionally exempt documents — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 24A, 26(2), 47E(d)

'RE' and Department of Home Affairs (Freedom of information) [2019] AICmr 63
Freedom of Information —Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E(d)

'RC' and TICA Default Tenancy Control Pty Ltd (Privacy) [2019] AICmr 60
Privacy — Privacy Act 1988 (Cth) — National Privacy Principles — Australian Privacy Principles — Definition of 'personal information' – Collection of personal information – NPP 1 – Breach substantiated –Data quality – NPP 3 – APP 10 – Compensation awarded for non-economic loss – Declaration that respondent must take specified steps

John Power and Department of Human Services (Freedom of information) [2019] AICmr 62
Freedom of Information — Whether documents contain deliberative matter prepared for a deliberative process — Whether disclosure is contrary to the public interest — (CTH) Freedom of Information Act 1982 ss 11A and 47C
I substitute my decision that the material that the Department found to be exempt under s 47C of the FOI Act is not exempt.
On 4 July 2017, the applicant applied to the Department for access to:
Memos, reports, briefings, correspondence or other documentation addressing concerns or flagging the possibility of the sale of Medicare patient details on the darknet.

R v Wulff; R v Oxenbridge; R v Myers; R v Walker [2019] QCA 183
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the four applicants were convicted on their own plea of guilty of official corruption – where the four aplicants were sentenced to terms of imprisonment – where each applicant challenges their sentence on the ground that the imposition of a period of actual custody makes the sentences manifestly excessive – where it is contended that the sentences should have been wholly suspended – whether the imposition of actual custody on each applicant was a manifestly excessive sentence
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – CONTENTION THAT JUDGE WAS MISTAKEN – where three of the applicants made further contentions that the sentencing judge erred in considerations made when sentencing – where it is contended that the learned sentencing judge erred in the application of the parity principle – where it is contended that the learned sentencing judge erred in failing to consider a material consideration in determining the length of the period to be served prior to suspension – where it is contended that the learned sentencing judge erred by comparing the criminality of one of the applicants with people other than the co-offenders, and conduct other than the co-offending – where it is contended that if a comparison between the criminality between people who were not co-offenders was permissible, the learned sentencing judge erred is his findings – whether the contentions of the applicants that the trial judge erred can be established – whether the sentences imposed by the learned sentencing judge were manifestly excessive
Criminal Code 1899 Qld s 87(1)(a); Penalties and Sentences Act 1992 Qld s 13A, 13A(7)(b)

J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 249
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – costs – interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) – meaning of 'for the benefit of a creditor'
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT – costs – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100 – s 102
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100 – s 102
Queensland Civil and Administrative Tribunal Act 2009 Qld s 32, s 100, s 102, s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(d), s 102(3)(e), s 102(3)(f), s 107(1)

Patel v Queensland Building and Construction Commission [2019] QCAT 247
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the applicants were entitled to make a claim for assistance pursuant to s 6 of the Queensland Building and Construction Regulation 2018 – where the first and second respondents allege that the building contract was not validly terminated by the applicants – where the applicants have made an application for costs pursuant to s 102 of the Queensland Civil and Administrative Act 2009 for an adjourned hearing date
Queensland Building and Construction Commission Act 1991 Qld s 67X; Queensland Building and Construction Regulation 2018 Qld s 4(1)(a), s 7, Schedule 6 – s 3; Queensland Civil and Administrative Tribunal Act 2009 Qld s 19, s 20, s 24(1)(b), s 86, s 87, s 100, s 102

Legislation

Bills

Combatting Child Sexual Exploitation Legislation Amendment Bill 2019
Senate 12/09/2019 - The Bill protects children from sexual exploitation by improving the Commonwealth framework of offences relating to child abuse material, overseas child sexual abuse, forced marriage, failing to report child sexual abuse and failing to protect children from such abuse. The Bill amends the Criminal Code Act 1995(Criminal Code), the Customs Act 1901(Customs Act), the Crimes Act 1914(Crimes Act), the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979

Crimes Legislation Amendment (Police Powers at Airports) Bill 2019
Senate 12/09/2019 – The Bill amends the Crimes Act 1914 to: broaden existing identity check provisions and create offences and powers in relation to identity check, move-on and ancillary directions by constables and protective services officers at Australia's major airports; and Australian Federal Police Act 1979 to provide that the offence of contravening an identity check or move-on direction is a protective service offence for the purposes of the Act.

Criminal Code Amendment (Agricultural Protection) Bill 2019
House of Representatives Message from Senate reported 12/09/2019
Consideration of Senate message Details: House agreed to Senate amendments 12/09/2019
Amends the Criminal Code Act 1995 to introduce two new offences in relation to the incitement of trespass or property offences on agricultural land

Royal Commissions Amendment (Private Sessions) Bill 2019
HR Message from Senate reported 10/09/2019. Consideration of Senate message. Details: House agreed to Senate amendments 10/09/2019
Senate 09//09/2019 – Amends the: Royal Commission Act 1902 to: enable a Royal Commission to hold private sessions where a regulation is made authorising it to do so; enable the Chair of a multi-member Royal Commission, or a sole Commissioner, to authorise Assistant Commissioners to hold private sessions; and impose limits on the use and disclosure of private session information and certain information given to the Child Sexual Abuse Royal Commission; and Freedom of Information Act 1982 to make consequential amendments

National Integrity Commission Bill 2018 (No. 2)
HR 10/09/2019 - The bill establishes the Australian National Integrity Commission as an independent public sector anti-corruption commission for the Commonwealth; provides for the appointment, functions and powers of the National Integrity Commissioner and commissioners; and makes consequential amendments to the Law Enforcement Integrity Commissioner Act 2006, Ombudsman Act 1976 and Public Interest Disclosure Act 2013

Regulation

Australian Human Rights Commission Regulations 2019
13/09/2019 - These regulations declare additional grounds of discrimination for the purposes of the Australian Human Rights Commission's equal opportunity in employment function, provided for by Division 4 of Part II of the Australian Human Rights Commission Act 1986.

Disability Discrimination Regulations 2019
13/09/2019 - These regulations declare 'combat duties' and 'combat-related duties' for the purposes of subsection 53(2) of the Disability Discrimination Act 1992. The Regulations also prescribe certain Commonwealth and State laws for the purposes of subsection 47(2) of the Disability Discrimination Act 1992.

Telecommunications (Protecting Australians from Terrorist or Violent Criminal Material) Direction (No. 1) 2019
09/09/2019 - This instrument directs relevant service providers to block the websites included in the list of websites hosting terrorist or violent criminal material, in connection with the eSafety Commissioner's function of promoting online safety for Australians by protecting them from access or exposure to material that promotes, incites or instructs in, terrorist acts or violent crimes.

Queensland

Bills

Youth Justice and Other Legislation Amendment Bill 2019
Introduced by: Hon D Farmer MP on 14/06/2019
Assent Date: 5/09/2019 Act No: 23 of 2019
Commences: see Act for details Youth Justice and Other Legislation Amendment Act 2019

Subordinate legislation as made – 06 September 2019
No 185 Police Service Administration (NDIS Worker Screening) Amendment Regulation 2019

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