NSW Government Bulletin - In the media, In practice and courts, Cases and Legislation - Constitutional & Administrative Law

In the media

Kemps Creek Nature Reserve Plan of Management
Kemps Creek Nature Reserve covers 197 hectares of some of the rarest and most threatened vegetation in the Cumberland Plains in Western Sydney. The urbanisation of these surrounding lands poses a significant and ongoing challenge to the conservation of the natural values of the park. The plan outlines strategies to help address these challenges (December 15 2022). More...

National Parks and Wildlife Service Audit and Compliance Committee Terms of Reference
The National Parks and Wildlife Service Audit and Compliance committee oversees the compliance of the Secretary of the Department of Planning and Environment with their legislative responsibilities under the National parks and Wildlife Act or any other Act (December 14 2022). More...

Your Experience of Service: What consumers say about NSW Mental Health Services 2021-22 Supplement
This is a national measure that asks consumers about their experience of mental health services. This report provides detailed information about consumer experiences of local health districts and specialty health networks (December 19 2022). More...

Economic and outcomes evaluation of 2020 NSW Government Covid-19 Small Business Grants
This document provides an evaluation of the economic and outcomes of the 2020 NSW Government Covid-19 Small Business Grants that were granted in respond to the various challenges posed to business and the NSW economic as a result of pandemic related restrictions (December 19 2022). More...

In practice and courts

AAT Bulletin Issue No. 25 /2022
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT's General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans' Appeals Divisions (December 12 2022). Read more here.

Decisions reserved – NSW Court of Appeal
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved (December 16 2022). Read more here.

Publications – articles, papers and reports

Cases

Webb v Port Stephens Council [2022] NSWCATAD 404
ADMINISTRATIVE LAW – access to government information – interested party – request for access to portions of documents – whether disclosure would reveal personal information – whether disclosure would undermine competitive neutrality of an agency or place it at a disadvantage in any market – whether disclosure would diminish competitive commercial value of information – whether disclosure would prejudice a person's legitimate business, commercial, professional or financial interests – whether form of access requested would involve an infringement of copyright.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Copyright Act 1968 (Cth); Government Information (Public Access) Act 2009 (NSW); Legal Profession Uniform Law Application Act 2014 (NSW).

Misius v Hawkesbury City Council [2022] NSWLEC 1711
DEVELOPMENT APPEAL – residential – alterations and additions – site remediation – revegetation management plan – flora and fauna – terrestrial biodiversity – earthworks – orders.
Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW); Hawkesbury Local Environmental Plan 2012 (NSW); Interpretation Act 1987 (NSW); Land and Environment Court Act 1979 (NSW); State Environmental Planning Policy (Biodiversity and Conservation) 2021; State Environmental Planning Policy (Koala Habitat Protection) 2019; State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy NO. 55 – Remediation of Land.

Cross v Secretary of the Department of Education (No 2) [2022] NSWIRComm 1115
COSTS – Party/Party – Costs orders in interlocutory proceedings – unfair dismissal – notice of motion seeking dismissal of proceedings – notice of motion dismissed – application for costs on an indemnity basis – whether notice of motion brought frivolously, vexatiously or without reasonable cause – whether motion was conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable – principles to apply – whether legislation allows for proportionate or pro rata order for costs.
Industrial Relations Act 1996.

Darkinjung Local Aboriginal Land Council v Minister Administering Crown Land Management Act 2016 [2022] NSWCA 275
ABORIGINAL LAND RIGHTS – claim to Crown land – whether land needed for an essential public purpose – land needed if actual decision of government – government decision around 40 years before land claim – misdirection to accept that decision without other evidence as proof of need at claim date – finding of need not reasonably open on evidence – finding of likely need not reasonably open on evidence.
Aboriginal Land Rights Act 1983 (NSW); Crown Lands Act 1989 (NSW); Crown Lands Consolidation Act 1913 (NSW); Land and Environment Court Act 1979 (NSW).

SafeWork NSW v Autocare Services Pty Limited (No 2) [2022] NSWDC 641
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty.
COSTS – prosecution costs.
Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).

Safework NSW v BSA Advanced Property Solutions (Fire) Pty Ltd [2022] NSWDC 634
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty.
COSTS – prosecution costs.
OTHER – defendant conducted a business or undertaking involving the installation of fire hydrant and sprinkler systems – sudden release of pressurised air caused explosion that ejected a test cap off the end of a pipe – test cap struck worker causing him fatal head injuries – failure to fit system with a means to release pressure or identify when the system is pressurised – failure to implement and enforce an adequate safe work method statement – failure to provide workers with training, information and instruction.
Crimes (Sentencing Procedure) Act 1999 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).

E nvironmental Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149
SENTENCE – failure of Defendant to comply with Management Direction given pursuant to the Contaminated Land Management Act 1997 (CLM Act) – failure to comply for 352 days – compliance triggered by commencement of prosecution – plea of guilty – plea not entered on earliest occasion – was Defendant responsible for the contamination – Defendant responsible for contamination so higher maximum penalty attracted – maximum available penalty for the primary offending conduct $1 million – appropriate starting penalty of $200,000 – additional daily penalty of $66,000 available to be imposed – wilful failure to comply with Management Direction under the CLM Act for lengthy period warrants imposition of a daily penalty – daily penalty of $500 appropriate – daily penalty totals $176,000 – total starting penalty $376,000.
GUILTY PLEA – discount to be given for late entry of guilty plea – 10 per cent discount appropriate – penalties of $180,000 and $158,400 after discounts for guilty pleas.
TOTALITY AND ACCUMULATION – consideration of appropriateness of total penalty – total penalty appropriate to be moderated – total daily penalty adjusted to $140,000 – total penalties imposed of $320,000.
COSTS – appropriate to order Defendant to pay Prosecutor's costs – Defendant ordered to pay Prosecutor's costs as agreed or assessed.
MOIETY – Prosecutor seeks order for payment of moiety (50 per cent) of the penalty to it – payment of a moiety appropriate – Defendant ordered to pay Prosecutor 50 per cent of each of the penalties imposed.
Contaminated Land Management Act 1997 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Fines Act 1996 (NSW); Protection of the Environment Operations Act 1997 (NSW); Western Australian Criminal Code (NSW).

Dibb v Transport for NSW [2022] NSWCATAD 398
ADMINISTRATIVE REVIEW – government information – access application – unreasonable and substantial diversion of agency's resources – refuse to deal – sections 57, 58 and 60 of the Government Information (Public Access) Act 2009.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009 (NSW).

Ugur v Commissioner of Police [2022] NSWCAAD 396
ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision that information is not held by the agency – conclusive overriding public interest against disclosure of a document created by the Counter Terrorism and Special Tactics Command – overriding public interest against disclosure of personal information.
Administrative Decisions Review Act 1997 (NSW); Government Information (Public Access) Act 2009 (NSW); Government Sector Employment ACT 2013 (NSW).

Flanagan Avenue Pty Ltd v Liverpool City Council [2022] NSWLEC 152
Review of Registrar's decision – UCPR 49.19(1) – competency of Class 1 appeal where no development application attached – Appeal – not incompetent – failure to comply with request and direction to lodge development application – proceedings dismissed warranted – alternative power – section 61 of the CP Act – UCPR 12.7 – motion dismissed.
Civil Procedure Act 2005 (NSW); Land and Environment Court Act 1979 (NSW); Land and Environment Court Rules 2007 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Richards v Mosman Municipal Council [2022] NSWLEC 1700
MODIFICATION APPLICATION – Dwelling – amended plans – orders.
Environmental Planning and Assessment Act 1979 (NSW); Mosman Local Environmental Plan 2012 (NSW); Mosman Residential Development Control Plan 2012 (NSW).

Carl Small v City of Canada Bay Council [2022] NSWLEC 1697
DEVELOPMENT APPLICATION – dwelling house – alterations and additions – heritage item – heritage impacts – orders.
Environmental Planning and Assessment Act 1979 (NSW); Land and Environment Court Act 1979 (NSW); State Environmental Planning Policy (Biodiversity and Conservation) 2021; State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (NSW); Canada Bay Local Environmental Plan 2013 (NSW).

Legislation

NSW legislation

Proclamations commencing Acts

Government Sector Employment Amendment Act 2022 No 76 – published LW 16 December 2022
Mining and Petroleum Legislation Amendment Act 2022 No 21 – published LW 16 December 2022
Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 – published LW 16 December 2022
NSW Reconstruction Authority Act 2022 No 80 – published LW 16 December 2022
Point to Point Transport (Taxis and Hire Vehicles) Amendment Act 2022 No 79 – published LW 16 December 2022
Racing and Gambling Legislation Amendment Act 2022 No 22 – published LW 16 December 2022
District Court Amendment Act 2022 No 72 (2022-749) – published LW 9 December 2022

Regulations and other miscellaneous instruments

Environmental Planning Instruments

Commonwealth Legislation

Competition and Consumer Act 2010 19/12/2022 – Act No. 51 of 1974 as amended
Aboriginal Land Rights (Northern Territory) Act 1976 19/12/2022 – Act No. 191 of 1976 as amended
Australian Communications and Media Authority Act 2005 – Act No. 44 of 2005 as amended
Federal Financial Relations Act 2009 19/12/2022 – Act No. 11 of 2009 as amended
Privacy Act 1988 17/12/2022 – Act No. 119 of 1988 as amended
Age Discrimination Act 2004 17/12/2022 – Act No. 68 of 2004 as amended
Income Tax Assessment Act 1936 17/12/2022 – Act No. 27 of 1936 as amended
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 17/12/2022 – Act No. 135 of 2009 as amended
A New Tax System (Family Assistance) (Administration) Act 1999 16/12/2022 – Act No. 81 of 1999 as amended
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 16/12/2022 – Act No. 41 of 1983 as amended
Taxation Administration Act 1953 16/12/2022 – Act No. 1 of 1953 as amended
Parliamentary Joint Committee on Law Enforcement Act 2010 16/12/2022 – Act No. 128 of 2010 as amended
Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 16/12/2022 – Act No. 107 of 2006 as amended
Australian Crime Commission Act 2002 16/12/2022 – Act No. 41 of 1984 as amended
Customs Act 1901 15/12/2022 – Act No. 6 of 1901 as amended
Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 15/12/2022 – Act No. 38 of 2020 as amended
Higher Education Support Act 2003 15/12/2022 – Act No. 149 of 2003 as amended
Health Insurance Act 1973 15/12/2022 – Act No. 42 of 1974 as amended
Agricultural and Veterinary Chemicals Code Act 1994 15/12/2022 – Act No. 47 of 1994 as amended
Offshore Electricity Infrastructure Act 2021 13/12/2022 – Act No. 120 of 2021 as amended
A New Tax System (Family Assistance) Act 1999 13/12/2022 – Act No. 80 of 1999 as amended
Defence Force Discipline Act 1982 13/12/2022 – Act No. 152 of 1982 as amended
Social Security Act 1991 13/12/2022 – Act No. 46 of 1991 as amended
Income Tax (Transitional Provisions) Act 1997 12/12/2022 – Act No. 40 of 1997
Fair Work Act 2009 10/12/2022 – Act No. 28 of 2009 as amended
Building and Construction Industry (Improving Productivity) Act 2016 9/12/2022 – Act No. 87 of 2016 as amended
Dental Benefits Act 2008 9/12/2022 – Act No. 41 of 2008 as amended
National Health Act 1953 9/12/2022 – Act No. 95 of 1953 as amended
Income Tax (Labour Mobility Program Withholding Tax) Act 2012 9/12/2022 – Act No. 59 of 2012 as amended
Safety, Rehabilitation and Compensation Act 1988 8/12/2022 – Act No. 75 pf 1988 as amended
Family Assistance Legislation Amendment (Child Care Subsidy) Act 2021 8/12/2022 – Act No. 86 of 2021 as amended
Foreign Acquisitions and Takeovers Fees Imposition Act 2015 8/12/2022 – Act No. 152 of 2015 as amended
Atomic Energy Act 1953 8/12/2022 – Act No. 31 of 1953 as amended
Aged Care Quality and Safety Commission Act 2018 7/12/2022 – Act No. 149 as amended
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 7/12/2022 – Act No. 55 of 2009 as amended
National Emergency Declaration Act 2020 6/12/2022 – Act No. 128 of 2020 as amended
Narcotic Drugs (Licence Charges) Act 2016 6/12/2022 – Act No. 75 of 2016 as amended
Tertiary Education Quality and Standards Agency Act 2011 5/12/2022 – Act No. 73 of 2011 as amended

Bills passed

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.

Australia: NSW Government Bulletin - In the media, In practice and courts, Cases and Legislation

In the media

In practice and courts

Publications – articles, papers and reports

Cases

Legislation

NSW legislation

Login to Mondaq.com

Why Register with Mondaq

Your Organisation