In the media
International Convention on the Rights of Older
Persons
The Law Council has recently adopted an in-principle
position in support of the development of an international
Convention on the Rights of Older Persons (International
Convention). It considers the International Convention to have the
potential to play an important role in improving the lives of older
people globally, and in turn to inform Australia's own domestic
legal and policy frameworks (09 October 2020).
More...
Supporting the justice system during the COVID-19
pandemic
As part of Australia's Economic Recovery Plan, the
Morrison Government is providing additional support for
Australia's legal system to help those affected by the COVID-19
pandemic and to support those using the courts to resolve their
matters as quickly and efficiently as possible (06 October 2020).
More...
Law reforms will encourage more victims sexual or family
violence seek help
President of the Law Society of NSW, Richard Harvey, said
the Law Society welcomed proposed changes to the offence of
concealing a serious indictable offence under section 316 of the
Crimes Act 1900. The amendment to the Act, which has been
introduced into NSW Parliament, provides an exemption in adult
cases of sexual or family violence offences where the individual
does not want the matter reported to police (08 October 2020).
More...
The effect of moving offences from the District Court to
the Local Court on court delay and sentencing
A legislative change allowing a selection of break and
enter offences to be heard in the Local Court has delivered a
reduction in court delay, a reduction in District Court workload
and a reduction in imprisonment according to a new evaluation
released by the NSW Bureau of Crime Statistics and Research
(BOCSAR) (01 October 2020).
More...
Evaluating the first tranche of the Table Offences
Reform
Crime and Justice Bulletin No. 231, Clare Ringland:
October 2020
Results from this study suggest that reclassifying offences from
strictly indictable to Table offences significantly reduced both
the number of matters finalised in the District Court and court
delay, and decreased the likelihood of a custodial penalty being
imposed (01 October 2020).
More...
Information Commissioner releases Community Attitudes
survey results - Right to Know Week NSW 2020
The results of the IPC Community Attitudes 2020 survey
provide a strong endorsement for data driven services with 72 per
cent of respondents agreeing that de-identified information should
be used to inform planning and delivery of services provided by
government agencies (29 September 2020).
More...
Information watchdogs mark Access Day
The Australian Information Commissioner joined Information
Access Commissioners and Ombudsmen from across Australia and New
Zealand to sign a public
statement marking Monday of this week as International Access
to Information Day (28 September). They said open, transparent and
accountable Governments that proactively release information to the
community remained fundamental to a democratic society (28
September 2020).
More...
In practice and courts
COVID-19: Information for attending court - 9 October
2020
The NSW Bar Association's
consolidated guide to COVID-19-related court arrangements has
again been updated in terms of recent developments.
Commercial Law Section - Updated notes on COVID-19
related developments in commercial law and practice
The NSW Association's Commercial Law Section has
provided an updated version of its notes on COVID-19 related
developments in commercial law and practice. The updated notes are
available
here (09 October 2020).
NSW IPC: International Access to Information Day and
Right to Know Week NSW 2020
The International Day for Universal Access to Information
as recognised by the United Nations, also known as International
Access to Information Day in Australia, is celebrated 28 September
2020.
The IPC will release the results of the IPC's Community
Attitudes Study 2020 on Data Sharing and Information Access
together with guidance to preserve the right to know in the digital
age, and a citizen and agency Fact Sheet
on Automated decision-making, digital government and preserving
information access rights to ensure the Right to Know is future
proof.
NSW Land and Environment court: Notices of motion before
the Registrar
6 October 2020 - The Court's use of of Online Court is
expanding to include the adjudication of Notices of Motion that are
listed for return before the Registrar. Parties can request to have
a Notice of Motion listed for adjudication using Online Court or
other means (by Teams or in person) if considered appropriate and
in accordance with the Court's
COVID-19 Pandemic Arrangements Policy.
Amendment to the Uniform Civil Procedure Rules -
amendment to Rules 3.10, 36.12, 50.14, and 51.27
The Uniform Rules Committee has approved Amendment No 94
to the Uniform Civil Procedure Rules. Amendments were made to the
following rules to make provision with respect to the certification
of reasons for judgment and the use of certified reasons in
proceedings:
3.10: Request for a certified copy of a judgment or order; 36.12:
Registrar to furnish copies of judgments and other documents;
50.14: Reasons for decision, transcript and other parts of the
record of the court below; and 51.27: Contents of Red Book.
The amendment was published on the NSW Legislation Website 0n 09
October 2020 and is available
here.
Extension of charge certification period
06/10/2020 - Practice and procedure
In response to a request from the Office of the Director of Public
Prosecutions, the chief magistrate, Judge Graeme Henson AM, has
extended the charge certification period from six to eight weeks,
commencing 16 November 2020 until the end of the 2020 Law Term.
Reminder: 2020 Professional Standards Scheme
commences
The fourth New South Wales Bar Association Professional
Standards Scheme will remain in effect until 30 June 2025. You can
learn more about the scheme
here.
JUDCOM: Decisions reserved
The Court of Appeal maintains a list of matters before the
Court for which judgment is reserved. The list is updated weekly.
View the latest publication
here.
Resumption of defended hearings in the Local Court of
NSW – information for solicitors
There are two cohorts of those matters: Matters that were
listed for hearing from 23 March 2020 to 4 May 2020 and those
listed for 4 May – 31 July 2020 (as per paragraph 12 of
Memorandum 10). The Court is endeavouring to ensure that as far as
possible these defended hearings proceed as defended hearings and
are not the subject of pleas of guilty on the day of hearing or of
adjournments or delay.
More...
Published – articles, papers, reports
Democracy under lockdown: The impact of COVID-19 on the
global struggle for freedom
Sarah Repucci, Amy Slipowitz Freedom House: 02 October
2020
The COVID-19 pandemic has fuelled a crisis for democracy around the
world. Based on a survey of 398 journalists, civil society workers,
activists, and other experts, as well as research on 192 countries
by Freedom House's global network of analysts, this report
provides an in-depth analysis. More...
Equality before the Law Bench Book
JUDCOM: 28 September 2020
Section 7 – Women – This chapter has been rewritten,
with updated cases and legislation, new and updated statistics and
new sections on socio-economic factors and gender disadvantage,
sexual harassment, intersectional discrimination and violence
against women. More...
Sentencing Bench Book
JUDCOM: 30 September 2020
Sentencing guidelines has been updated to include reference to
Moodie v R [2020] NSWCCA 160
Sentencing Commonwealth offenders has been revised and updated to
reflect recent amendments. More...
Cases
Chen v Commissioner NSW Police Force
[2020] NSWCATAD 245
Leave for the complaint to proceed is refused under s
96(1) of the Anti-Discrimination Act 1977 (NSW)
HUMAN RIGHTS – equal opportunity – whether leave
required for complaint to proceed – principles applying to
grant of leave.
Lawrence v State of New South Wales
[2020] NSWCA 248
CONSTITUTIONAL LAW – Commonwealth Constitution
– Chapter III – Terrorism (High Risk Offenders) Act
2017 (NSW) – whether the Act is constitutionally invalid
– involuntary detention of a citizen by the State –
preventative detention orders – whether the Act directs the
Supreme Court as to the manner of the exercise of its jurisdiction
– judicial discretion – whether the Act creates
procedural unfairness – whether the Act is inconsistent with
the institutional integrity of the Supreme Court as a repository of
federal jurisdiction STATUTORY INTERPRETATION – departure
from literal meaning - Terrorism (High Risk Offenders) Act 2017
(NSW) s 39(4) – meaning when read in context – meaning
having regard to the purpose of the Act STATUTORY INTERPRETATION
– legislative purpose – Terrorism (High Risk Offenders)
Act 2017 (NSW) s 10(1)(c)(ii) – necessary connection between
the association or affiliation and the advocacy of terrorist acts
or violent extremism.
Choi v Legal Aid Commission of
NSW [2020] NSWCATAD
242
ADMINISTRATIVE LAW – Access to information –
application for Tribunal to refuse to deal with review application
– application for summary dismissal of review application
– Tribunal refused to deal with and dismissed review
application.
JE v Secretary, Department of Communities and Justice
(No 2) [2020] NSWCA
243
ADMINISTRATIVE LAW – judicial review – appeal
from Children's Court to District Court – whether error
of law on the face of the record or jurisdictional error
established – no error made out. PRACTICE –
representation of children and young persons in judicial review
proceedings – common interest with Secretary – nature
of appropriate representation in such cases
LAW - State Constitution – extra-territorial operation of
legislation – power to provide for - drafting techniques
– desirability of providing explicit legislative guidance as
to intended territorial reach of laws STATUTORY INTERPRETATION
– legal presumptions – presumption of territoriality
– Interpretation Act 1987 (NSW) s 12 – applicants were
women of Yazidi ethnicity – plaintiffs claimed they were
victims of acts of violence perpetrated upon them in Northern Iraq
and Syria by a man who had previously lived in New South Wales
– Commissioner and NCAT dismissed application for support
because acts of violence did not occur in New South Wales –
plaintiffs submitted sufficient connection with New South Wales
– nature of territorial nexus of Victims Rights and Support
Act 2013 (NSW) with New South Wales – consideration of
history and construction of s 12 Interpretation Act,
extraterritorial legislative capacity, counterparts and precursors
to victims compensation schemes – displacement of legal
presumptions - appeal dismissed.
Henadeck Pty Ltd v Independent Liquor and Gaming
Authority; Niraula v Independent Liquor and Gaming
Authority [2020] NSWCATAP
200
ADMINISTRATIVE LAW – administrative review –
hotel licence – refusal of application to vary an ongoing
extended trading authorisation – whether decision
administratively reviewable STATUTORY INTERPRETATION –
meaning of cl 7(b) of the Gaming and Liquor Administration
Regulation 2016 – whether application to vary an extended
trading authorisation is an "application for an ongoing
extended trading authorisation in relation to a licence ... that
would result in trading after midnight" PRECEDENT –
Supreme Court obiter dicta – meaning of "seriously
considered" dicta.
Commissioner of Police, New South Wales Police Force v
Zisopoulos [2020] NSWCA
236
ADMINISTRATIVE LAW – judicial review of decisions of
Industrial Relations Commission relating to removal of officer from
NSW Police Force – whether IRC erred in law and failed to
exercise jurisdiction whilst undertaking statutory task of review
under s 181E of the Police Act 1990 (NSW) – whether IRC
misapplied s 181F(2) concerning onus of proof – legal,
tactical and evidential burdens of proof considered – where
decision was not affected by jurisdictional error. INDUSTRIAL
RELATIONS – Industrial Relations Commission – whether
the removal of an officer from the NSW Police Force was
"harsh, unreasonable or unjust" – whether IRC erred
in law and failed to exercise jurisdiction whilst undertaking
statutory task of review under s 181E of the Police Act 1990 (NSW).
STATUTORY INTERPRETATION – construction of s 181F(2) of the
Police Act 1990 (NSW) – whether the removal of an officer
from the NSW Police Force was "harsh, unreasonable or
unjust".
Purcell v The Health Secretary on behalf of NSW
Ambulance [2020] NSWIRComm
1065
PUBLIC SECTOR DISCIPLINARY APPEAL – three
allegations of misconduct against Duty Operations Manager –
one allegation substantiated by employer – temporary
reduction in classification for 12 months imposed –
allegation not proven to requisite standard of proof on the
evidence before the Commission – appeal allowed.
Legislation
Regulations and other miscellaneous instruments
Government Sector Finance Amendment (Independent Planning
Commission) Regulation 2020 (2020-600) — published LW 9
October 2020
Uniform Civil Procedure (Amendment No 94) Rule 2020 (2020-604)
— published LW 9 October 2020
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.