ARTICLE
11 April 2024

NSW Government Bulletin: In the media, Courts and practice, Publications, Cases and Legislation

This newsletter links to recent media releases, reports, cases and legislation of interest to NSW government lawyers.
Australia Government, Public Sector
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In the media

The rise of financial sovereignty – and why some Australians believe they don't have to pay tax
The sovereign citizen movement rejects the legitimacy of the government. Its fast-growing popularity has had authorities scrambling to get a handle on how far its tentacles have reached. "'Sovereign citizen' type claims promoted by some that somehow you can opt out of the tax system, or that the ATO does not have legal standing, have been repeatedly debunked, and are likely to lead to significant penalties," a spokeswoman said (8 April 2024).  Read more here.

Priority development projects in Snowy Mountains precinct to get underway
The NSW Government is continuing to invest in the future of regional communities, with nearly $200 million set to deliver 7 priority projects at the Snowy Mountain and Jindabyne Precinct. These projects align with both the NSW Government's and communities priorities to generate job opportunities, enhance infrastructure for housing supply, essential services and sustainable tourism (5 April 2024).  Read more here.

NSW Government unveils innovative flood and storm intelligence project
The NSW Government is testing technology that harnesses artificial intelligence (AI) and the mobile phone network to predict the possible impacts of flooding. The NSW State Emergency Service (SES) has partnered with researchers to develop and test network sensing technology, which extracts localised weather information including rainfall, water levels and river flows using signals transmitted on the communications network (2 April 2024).  Read more here.

In the courts and practice

Solar SunShot for our regions and industries to deliver a future made in Australia
The Albanese Government's $1 billion investment in the Solar SunShot program will supercharge Australia's ambition to become a renewable energy superpower at home and abroad. The significant new commitment follows today's introduction of legislation establishing the Net Zero Economy Authority to help catalyse investment in a clean energy future made in Australia's regions (28 March 2024). Read more here.

Rashelle Seiden SC appointed to the District Court of NSW
Sydney barrister Rashelle Seiden SC has been appointed a judge of the District Court of NSW, as well as a Deputy President and head of the Administrative and Equal Opportunity Division and the Occupational Division of the Civil and Administrative Tribunal of NSW (NCAT). Ms Seiden brings almost 30 years of legal expertise to the bench, with her experience ranging from constitutional and administrative law, trusts, corporate and commercial law, insolvency and revenue, including tax crime (28 March 2024). Read more here.

Quarter of a million essential workers set to benefit under proposed long service leave reforms
Up to 250,000 community sector workers would see their leave rights expanded under a landmark draft bill released today by the NSW Government for consultation. The reforms will allow community sector workers to access long service leave sooner and accrue leave based on time employed in the sector, rather than time employed by a single employer (27 March 2024). Read more here.

Draft Taxation Ruling TR 2024/D1 – Income tax: royalties – character of payments in respect of software and intellectual property rights
The Taxation Committee and the Intellectual Property Committee of the Business Law Section of the Law Council of Australia (the Committees) made a submission on Draft Taxation Ruling TR 2024/D1, which considers when amounts paid under software arrangements are royalties under section 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) and Australia's tax treaties (Draft Ruling) (18 March 2024). Read the submission here.

AAT Bulletin Issue No. 07/2024
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 (08 April 2024). Read more here.

Publications

Law Council Update
In this edition of LCA Update, read about the highlights from the Immigration Law Conference; the Law Council's concerns in relation to the Migration Amendment (Removal and Other Measures) Bill 2024, and key outcomes from the inaugural meeting of the Australia – United Kingdom Legal Services Regulatory Dialogue (28 March 2024). Read the publication here.

Treasury Round Up 2024 – Labour Market Edition
The articles in this edition of the Round Up explore 4 aspects that are central to addressing structural barriers in Australia's labour market and meeting long-term labour market objectives: geographical barriers, the net zero transformation, migration, and incentives (28 March 2024). Access the publications here.

Cases

Choi v NSW Ombudsman [2024] NSWSC 352
ADMINISTRATIVE LAW – Whether reviewable error of law – where plaintiff alleges various errors of law on the face of the record and jurisdictional error in decisions of NCAT.
ADMINISTRATIVE LAW – Particular administrative bodies – Ombudsman – where plaintiff makes allegations of discrimination and victimisation against the Ombudsman.
Anti-Discrimination Act 1977 (NSW), ss 49A93A96108Civil and Administrative Tribunal Act 2013 (NSW), s 38Mental Health Act 2007 (NSW)Ombudsman Act 1974 (NSW), s 35A.

Aboukalam v Commissioner for Fair Trading [2024] NSWCATOD 39
Administrative Law – plumber – refusal to grant tradespersons certificate – fit and proper person.
Civil and Administrative Tribunal Act 2013Administrative Decisions Review Act 1997Home Building Act 1989Home Building Regulation 2014Corporations Act 2001 (Cth).

FCZ v Illawarra Shoalhaven Local Health District (No 2) [2024] NSWCATAP 53
COSTS – s 60 Civil and Administrative Tribunal Act 2013 – proceedings not out of the ordinary – proceedings not untenable, frivolous or vexatious – no award of costs.
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Act 2013Privacy and Personal Information Protection Act 1998 (NSW)Health Records and Information Privacy Act 2002 (NSW).

Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31
APPEAL – question of law – Commissioner's decision to modify development consent – precondition to power to modify consent – whether modified development substantially the same development as originally approved development – whether error in chain of reasoning – whether error that no change in critical elements of development – whether error in adopting expert's approach that no change in consequences of development – no error of law established.
Environmental Planning and Assessment Act 1979 (NSW), ss 4.55(2)4.55(3)Land and Environment Court Act 1979 (NSW), s 56A(1).

Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70
BAIL – breach of condition – arrest without warrant – applicant convicted of resisting officer in execution of duty – police officer reasonably believed applicant had not complied with bail condition – s 77(1) of Bail Act 2013 (NSW) empowered officer to take one of six actions, one of which was arrest – s 77(3) of Bail Act provided that officer was to consider four matters in deciding whether to take action and which action to take in those circumstances – officer considered none of those matters – whether non-compliance with s 77(3) meant that arrest was not in lawful execution of duties – appeal allowed, conviction set aside and charge dismissed.
Bail Act 1978 (NSW), s 50Bail Act 2013 (NSW), ss 31833467777ABail Amendment Act 2014 (NSW)Crimes Act 1900 (NSW), s 58Crimes (Appeal and Review) Act 2001 (NSW), ss 5255;
Criminal Code Act 1995 (Cth), s 474.17Environmental Planning and Assessment Act 1979 (NSW), s 4.15Evidence Act 1995 (NSW), s 138Interpretation Act 1987 (NSW), s 34Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99105Prevention of Cruelty to Animals Act 1979 (NSW)Supreme Court Act 1970 (NSW), s 101.

Ermington Projects Pty Ltd v City of Parramatta Council [2024] NSWLEC 1152
APPEAL – modification – application direct to Court – Court ordered consent at s 34 conference for child care centre – deletion of deferred commencement condition to create s 88K drainage easement over public school land – whether easement reasonably necessary – whether modified on site stormwater drainage system adequate – whether substantially the same development – unencumbered space in child care centre.
Conveyancing Act 1919, s 88KChildren (Education and Care Services National Law Application) Act 2010Environmental Planning and Assessment Act 1979, ss 4.154.164.55Land and Environment Court Act 1979, s 17.

Turnbull v Kyogle Council  [2024] NSWSC 342
CIVIL PROCEDURE – time – extension of time – notice of motion seeking leave to rely upon expert report – duplication with report of a separate expert – limited leave granted.
Civil Liability Act 2002 (NSW)Evidence Act 1995 (NSW)Uniform Civil Procedure Rules (2005) NSW , rr 1.1231.28(4).

Legislation

In Force
Conversion Practices Ban Act 2024 No 19 – current version for 3 April 2024 to date

Bills introduced - Government;
Health Legislation Amendment (Miscellaneous) Bill 2024 – introduced LC 21 March 2024
Property NSW Amendment Bill 2024 – introduced LA 20 March 2024
Health Practitioner Legislation Amendment Bill 2024 – introduced LA 19 March 2024

Bills introduced - Non-Government;
ICAC and Other Independent Commissions Legislation Amendment (Independent Funding) Bill 2024 – introduced LA 21 March 2024
Automated External Defibrillators (Public Access) Bill 2024 – introduced LA 21 March 2024
Anti-Discrimination Amendment (Heterosexual Discrimination) Bill 2024 – introduced LC 20 March 2024

Bills passed by both Houses of Parliament;

Bills assented to;
Combat Sports Amendment Bill 2024 (2024 No 16) – assented to 3 April 2024
Environmental Planning and Assessment Amendment (Sea Bed Mining and Exploration) Bill 2024 (2024 No 12) – assented to 25 March 2024
Independent Commission Against Corruption Amendment Bill 2024 (2024 No 17) – assented to 3 April 2024
Bail and Crimes Amendment Bill 2024 (2024 No 18) – assented to 3 April 2024
Children and Young Persons (Care and Protection) Amendment Bill 2024 (2024 No 15) – assented to 3 April 2024
Conversion Practices Ban Bill 2024 (2024 No 19) – assented to 03 April 2024
Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Bill 2024 (2024 No 20) – assented to 03 April 2024
Environmental Legislation Amendment (Hazardous Chemicals) Bill 2024 (2024 No 10) – assented to 25 March 2024
Electoral Funding Amendment (Local Government Electoral Expenditure Caps) Bill 2024 (2024 No 11) – assented to 25 March 2024

Regulation and other miscellaneous instruments; and
Electricity Infrastructure Investment Amendment (Consumer Trustee and Infrastructure Planner) Regulation 2024 (2024 No 96) – published LW 5 April 2024
Point to Point Transport (Taxis and Hire Vehicles) Amendment (Penalty Notice Offences) Regulation 2024 (2024 No 112) – published LW 5 April 2024
Environmental Planning and Assessment Amendment (Schools) Regulation 2024 (2024 No 97) – published LW 5 April 2024
Motor Accident Injuries (Indexation) Order 2024 (2024 No 78) – published LW 22 March 2024

Environmental Planning Instruments
Sydney Local Environmental Plan 2012 (Amendment No 103) (2024 No 116) – published LW 5 April 2024
State Environmental Planning Policy (Transport and Infrastructure) Amendment 2024 (2024 No 115) – published LW 5 April 2024
Cabonne Local Environmental Plan 2012 {Map Amendment No 6) (2024 No 114) – published LW 5 April 2024
Cabonne Local Environmental Plan 2012 (Map Amendment No 5) (2024 No 113) – published LW 5 April 2024
Wollongong Local Environmental Plan 2009 (Map Amendment No 5) (2024 No 94) – published LW 28 March 2024
Tumbarumba Local Environmental Plan 2010 (Amendment No 3) (2024 No 93) – published LW 28 March 2024
State Environmental Planning Policy (Precincts – Western Parkland City) Amendment (Wilton Growth Area) 2024 (2024 No 92) – published LW 28 March 2024
Penrith Local Environmental Plan 2010 (Amendment No 43) (2024 No 91) – published LW 28 March 2024
Georges River Local Environmental Plan 2021 (Amendment No 8) (2024 No 90) – published LW 28 March 2024
Dubbo Regional Local Environmental Plan 2022 (Amendment No 4) (2024 No 89) – published LW 28 March 2024
Cabonne Local Environmental Plan 2012 (Map Amendment No 4) (2024 No 88) – published LW 28 March 2024
Coffs Harbour Local Environmental Plan 2013 (Map Amendment No 9) (2024 No 79) – published LW 22 March 2024
Forbes Local Environmental Plan 2013 (Amendment No 14) (2024 No 80) – published LW 22 March 2024
Griffith Local Environmental Plan 2014 (Amendment No 8) (2024 No 81) – published LW 22 March 2024
Liverpool Local Environmental Plan 2008 (Amendment No 98) (2024 No 82) – published LW 22 March 2024
Mid-Western Regional Local Environmental Plan 2012 (Amendment No 29) (2024 No 83) – published LW 22 March 2024
Woollahra Local Environmental Plan 2014 (Amendment No 34) (2024 No 84) – published LW 22 March 2024
Port Stephens Local Environmental Plan 2013 (Amendment No 43) (2024 No 85) – published LW 22 March 2024
Sydney Local Environmental Plan 2012 (Amendment No 86) (2024 No 86) – published LW 22 March 2024
Sydney Local Environmental Plan 2012 (Amendment No 102) (2024 No 87) – published LW 22 March 2024

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.

ARTICLE
11 April 2024

NSW Government Bulletin: In the media, Courts and practice, Publications, Cases and Legislation

Australia Government, Public Sector

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