In the Media
Two new appointments to the Anti-Discrimination Board of
NSW
Elena Katrakis and Associate Professor Derya Iner have
been appointed to the Anti-Discrimination Board of NSW. Ms Katrakis
and Associate Professor Iner will help set the strategic direction
of Anti-Discrimination NSW, carry out investigations, research and
inquiries relating to discrimination, and promote understanding and
awareness of the issue (25 March 2024). Read more here.
New ‘Performance and Wellbeing Framework’ to
improve budget transparency and social outcomes
The NSW Labor Government will introduce a new Performance
and Wellbeing Framework as part of its budget papers to improve
transparency and accountability along with driving positive social
outcomes. The Government will refer the new framework to
Parliament’s Public Accountability Committee for a full inquiry
as the framework is developed. They will also engage in direct
consultations with community and industry stakeholders (18 March
2024). Read more here.
Artificial Intelligence at the centre of World Consumer
Rights Day
NSW Fair Trading is urging statewide consumers to protect
themselves in the fast-evolving digital world this World Consumer
Rights Day. NSW consumers already face serious challenges to their
safety online with the risks of mismanagement and misuse of their
personal data, unfair contract terms, and scammers who target
victims on the internet. This year’s theme, ‘Fair and
Responsible AI for Consumers’, warns consumers of the rise in
generative artificial intelligence (AI) (15 March 2024). Read more
here.
Companies vying for government contracts could soon have
to meet gender targets. Will we finally see real progress?
The Australian government wants to make sure its contracts
don’t just deliver taxpayers value for money, but also promote
gender equity. Under proposed procurement policy changes announced
earlier this month, large companies that wish to bid for government
contracts will first have to meet some gender equality conditions.
The idea is for the government to use its “purchasing
power” to incentivise companies to take bolder steps toward
achieving gender equality (21 March 2024). Read more here.
Expert panel meets to reform emergency services
funding
A newly formed Stakeholder Reference Group held its first
meeting today to advise the government on reforming the way
emergency services are funded. Chaired by Treasurer Daniel Mookhey,
the expert panel discussed a broad range of perspectives on a new
model to replace the existing Emergency Services Levy (ESL) which
is paid through insurance premiums. The Reference Group is made up
of leaders from the insurance and property industries, business and
council representatives and emergency service experts (22 March
2024). Read more here.
Publications
NSW councils see a sharp rise in climate impact and
action, survey finds
Almost 95% of councils that took part in the 2023 Climate
Change Action Survey are feeling the impacts of climate change, and
a record number are prioritising action to reduce their emissions
and help their communities adapt. The 2023 survey, undertaken by
Taverner Research, collected 75 fully completed questionnaires,
from a possible 128 councils across the state. This represents 59%
of all councils (13 March 2024). Read the results here.
March 2024 IPC Bulletin
The IPC Bulletin is produced to support agencies and
organisations with compliance of the IPC’s administered
legislation. It includes updates on the IPC’s recent
activities, resources and guidance, links to new case notes,
information about upcoming events, and other relevant issues and
developments in information access and privacy (20 March 2024).
Read the bulletin here.
Practice and Courts
New bail and performance crime laws passed to prevent
youth crime
The NSW Government has strengthened bail laws to help
prevent repeat youth crime and a new performance crime offence.
Parliament passed legislative changes last night to amend the Bail
Act 2013 to include a temporary additional bail test for young
people between 14 and 18 charged with committing certain serious
break and enter offences or motor vehicle theft offences while on
bail for similar offences. The government has also created a
‘performance crime’ offence in the Crimes Act 1900 (NSW)
imposing an additional penalty of two years’ imprisonment for
people who commit motor vehicle theft or break and enter offences
and share material to advertise their involvement in the criminal
behaviour (22 March 2024). Read more here.
Landmark environmental reforms pass NSW Parliament
A new bill containing the most significant amendments to
environment protection rules since the NSW Environment Protection
Authority (EPA) was established in 1991, has just been passed
through parliament. This bill means NSW now has the strongest
environmental regulations of any state or territory in Australia.
The reforms tackle critical loopholes, introduce recall powers, and
ensure the EPA has stronger powers to deter environmental crimes
and respond faster to pollution incidents (21 March 2024). Read
more here.
Prosecutors weigh up Australia’s first case under
government secrecy laws
Federal prosecutors are considering Australia’s first
prosecution under broad-ranging general secrecy laws that can send
someone revealing classified government information to jail for up
to 10 years. Nobody has ever been prosecuted under part 5.6 of the
Criminal Code Act, which was introduced in December 2018 as a
catch-all, general secrecy law designed to protect high-level
commonwealth information, the release of which would be
“inherently harmful”. The office of the Commonwealth
Director of Public Prosecutions has revealed it has received seven
agency referrals recommending prosecutions under part 5.6 (25 March
2024). Read more
here.
AAT Bulletin Issue No. 06/2024
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 (25 March 2024). Read more here.
Cases
Secretary, Department of Communities and
Justice v Stewart [2024] NSWCA 59
STATUTORY INTERPRETATION – meaning of “unpaid
leave” – whether a period of absence from work due to
incapacity from an injury for which a worker was paid workers
compensation constitutes a “period of unpaid leave”
– cl 2(3)(a) of Sch 3 to the Workers Compensation Act 1987
(NSW) – reg 8E of the Workers Compensation Regulation 2016
(NSW).
Annual Holidays Act 1944 (NSW), ss 4A, 14A(6); Fair Work Act 2009
(Cth), Pt 2-2 Divs 5-10, ss 130, 525; Interpretation Act 1987
(NSW), ss 32-33; Long Service Leave Act 1987 (SA), ss 3, 8; Paid
Parental Leave Act 2010 (Cth); Return to Work Act 2014 (SA), s 5;
Subordinate Legislation Act 1989 (NSW); Workers’ Compensation
Act 1926 (NSW), s 9(1)(a); Workers Compensation Act 1987 (NSW), ss
2A, 4, 9, 32A, 33, 36-40, 49, 50, 147, Pt 10 Sch 3; Workers
Compensation Amendment (Pre-injury Average Weekly Earnings)
Regulation 2019 (NSW); Workers Compensation Legislation Amendment
Act 2012 (NSW); Workers Compensation Legislation Amendment Act 2018
(NSW); Workers Compensation Regulation 2016 (NSW), regs 8B-8E;
Workers Rehabilitation and Compensation Act 1986 (SA), s 40;
Workmen’s Compensation Act 1910 (NSW), Sch 2, cl 2(d);
Workplace Injury Management and Workers Compensation Act 1998
(NSW), ss 3, 352-353.
AB (a
pseudonym) v Independent Broad-based Anti-corruption
Commission [2024] HCA 10
Statutes – construction – procedural fairness –
reasonable opportunity to respond – where Independent
Broad-based Anti-corruption Commission (“IBAC”) conducted
investigation into allegations of unauthorised access to and
disclosure of internal email accounts – where IBAC provided
redacted draft special report containing proposed adverse findings
against appellants – where IBAC refused to provide
evidentiary material for proposed adverse findings – where s
162(3) of Independent
Broad-based Anti-corruption Commission Act 2011 (Vic)
relevantly provided that, if IBAC intends to include in report
“a comment or an opinion which is adverse to any person”,
then IBAC must first provide person reasonable opportunity to
respond to adverse material – whether “adverse
material” in s 162(3) referred to proposed adverse comments or
opinions in report, or evidentiary material upon which proposed
adverse comments or opinions based – whether provision of
substance or gravamen of adverse material sufficient to comply with
obligation under s 162(3) – whether substantive relief
warranted where findings unaffected by misconstruction of s 162(3).
Words and phrases – “adverse comment or opinion”,
“adverse finding”, “adverse material”,
“evidentiary material”, “reasonable
opportunity”, “reasonable opportunity to respond”,
“special report”, “substance or
gravamen”.
Independent Broad-based Anti-corruption Commission
Act 2011 (VIC), s 162(3).
Redland City Council v Kozik [2024] HCA
7
Statutes – construction – statutory debt – local
government – special rates and charges – where
appellant empowered by Local Government Act 2009 (Qld)
(“Act”) to levy special rates and charges in respect of
rateable land – Where appellant purported to levy special
charges on respondents’ land – where special charges
levied pursuant to invalid resolutions – where respondents
paid special charges contained in rate notices – where
regulations made pursuant to Act provided for return of special
rates or charges levied on land to which special rates or charges
did not apply – whether provision in regulations providing
for return of special charges applicable where resolution levying
special rates invalid.
Restitution – unjust enrichment – defence of good
consideration – where respondents paid special charges to
appellant under mistake of law – where appellant spent funds
levied on works conducted on waterways adjacent to respondents’
land – where appellant statutorily obliged to conduct
relevant works – whether appellant had defence to
respondents’ claim for restitution.
Words and phrases – “benefit”, “failure of
consideration”, “good consideration”, “local
government”, “mistake of law”, “money had and
received”, “recipient not unjustly enriched”,
“regulations”, “restitution”, “special
rates and charges”, “statutory construction”,
“statutory debt”, “unjust enrichment”.
Local
Government Act 2009 (QLD), ss 91, 92, 93, 94; Local Government (Finance, Plans and Reporting)
Regulation 2010 (Qld), ss 28, 32; Local Government Regulation 2012 (Qld), ss 94, 98.
PC
Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC
1139
DEVELOPMENT APPEAL – service station – frontage on
classified road – whether a right of way is a road –
jurisdictional prerequisite as opposed to merit assessment –
whether a deferred commencement condition can satisfy a
jurisdictional prerequisite – orders.
Environmental Planning and Assessment Act 1979,
ss 4.15, 4.16, 4.17, 8.7, 8.7; Conveyancing Act 1919, s 88B; Land and Environment Court Act 1979, ss 34AA, 39, 56A; Roads Act 1993, s 138.
Chopra v NSW Health Service – South
Western Sydney Local Health District [2024] NSWDC 76
TORT – workplace injury – system of work –
“special” nurse allocated to dementia patient and other
staff leave Emergency Department ward nurse by herself while the
patient is agitated – nurse assaulted by dementia patient
breach of duty of care – damages.
Evidence
Act 1995 (NSW), ss 69, 135; Mental Health Act 2007 (NSW), ss 19, 27(1)(b); Workers
Compensation Act 1987 (NSW), ss 151E(1), 151F, 151M; Workplace Injury Management and Workers
Compensation Act 1998 (NSW), ss 318, 318I.
Gazal
v Deputy Commissioner of Taxation (No. 2) [2024] NSWSC
293
COSTS – specified gross sum costs order instead of assessed
costs – Civil Procedure Act 2005, s 98(4)(c) – defendant, the Deputy
Commissioner of Taxation, successfully opposes the plaintiff’s
appeal against a Departure Prohibition Order issued under the Taxation
Administration Act 1953 (Cth), s 14S – plaintiff ordered to pay the
defendant’s costs of the proceedings – plaintiff has few
assets in his own name – plaintiff advanced evidence of
doubtful provenance in support of his claim – whether the
conduct of a costs assessment would be aggravating or oppressive to
the defendant in the circumstances – what is the appropriate
specified gross sum to be fixed instead of assessed costs –
whether a discount should be applied from the costs claimed by the
defendant – consideration of the effect of proceedings being
brought in vacation reducing the cost efficiencies that might
otherwise have been employed by the legal representatives of the
defendant.|
Civil
Procedure Act 2005, ss 56(1), 57(1)(d), 60, 98(4)(c); Taxation
Administration Act 1953 (Cth), s 14S
Lensing v Snowy Valleys Council [2024]
NSWCATAD 75
ADMINISTRATIVE LAW – administrative review –
government information – allegations of improper conduct
– personal information not sought – irrelevant
information not sought – legal professional privilege –
waiver of privilege – conclusive presumption against
disclosure.
Administrative Decisions Review Act 1997 (NSW);
Civil and
Administrative Tribunal Act 2013 (NSW); Evidence Act
1995 (NSW); Government Information (Public Access) Act 2009
(NSW); Government Information (Public Access) Regulation
2018 (NSW); State Records Act 1998 (NSW)
Mallegowda v Secretary of the Department of
Transport [2024] NSWCATAD 77
HUMAN RIGHTS – equal opportunity – whether leave
should be given – principles applying to grant of
leave.
Anti-Discrimination Act 1977, ss 49A, 49B, 49C 49D, 50; Crimes (Sentencing Procedures)
Act, 1999; Civil and Administrative Tribunal Act,
2013.
Young & Young v Attorney General of New
South Wales [2024] NSWSC 282
EQUITY – equitable interests in property – nature of
equitable interests – birth certificate does not evidence or
create any type of property or interest in property.
Uniform
Civil Procedure Rules 2005 (NSW) Pt 13, r 13.4; Pt 14, r 14.28.
Environment Protection Authority v Dial-A-Dump
(EC) Pty Ltd [2024] NSWLEC 21
SENTENCE: occupier of landfill charged with emission of offensive
odour – plea of guilty – odour affected local residents
over a three month period – substantial environmental harm
caused – multiple victims – harm reasonably foreseeable
– practical measures available to avoid or mitigate the harm
– objectively serious – subjective factors –
moiety ordered – environmental services order –
publication order made – notice to residents ordered.
Crimes (Sentencing Procedure) Act 2000, ss 3A, 21A(2), 21A(3), 22, 23; Criminal Procedure Act 1986, ss 257B, 257G; Fines Act 1996, s 122; Protection of the Environment Operations Act
1997, ss 3, 64(1), 91, 129, 129(1), 132, 241, 241(1), 241(2), 248, 250(1)(a), 250(1)(b), 250(1)(e); Protection of
the Environment Operations (Waste) Regulation 2014, cl 80(4)
Legislation
Bills introduced – government
Bail and Crimes Amendment Bill 2024 –
introduced LA 12 March 2024, passed LA 19 March 2024
Children and Young Persons (Care and Protection) Amendment Bill
2024 – introduced LA 13 March 2024, passed LA 19 March
2024
Conversion Practices Ban Bill 2024 – introduced LA 13
March 2024, passed LA 20 March 2024
Emergency Services Levy Amendment Bill 2024 – introduced
LA 14 March 2024
Environment Protection Legislation Amendment
(Stronger Regulation and Penalties) Bill 2024 –
introduced LA 14 March 2024, passed LA 20 March 2024
Bills introduced – non-government
Electoral Amendment (Voter ID and Electronic Mark Off) Bill
2024 – introduced LA 14 March 2024
Independent Commission Against Corruption
Amendment (Ministerial Diary Disclosure) Bill 2024 –
introduced LA 14 March 2024
Rural Fires Amendment (Red Fleet) Bill 2024
– introduced LA 14 March 2024
Bills passed by both Houses of Parliament
Animal Research Amendment (Prohibition of Forced
Swim Tests and Forced Smoke Inhalation Experiments) Bill 2024
– passed by both Houses 14 March 2024
Electoral Funding Amendment (Local Government
Electoral Expenditure Caps) Bill 2024 – passed by both
Houses 13 March 2024
Environmental Legislation Amendment (Hazardous
Chemicals) Bill 2024 – passed by both Houses 13 March
2024
Environmental Planning and Assessment Amendment
(Sea Bed Mining and Exploration) Bill 2024 – passed
by
both Houses 14 March 2024
Human Tissue Amendment (Ante-mortem Interventions)
Bill 2024 – passed by both Houses 14 March 2024
Regulation and other miscellaneous instruments;
and
Liquor Amendment (Licence Fees) Regulation 2024
(2024 No 66) – Published LW 13 March 2024
Environmental Planning Instruments
Blacktown Local Environmental Plan (Precincts
– Central River City) (Map Amendment No 3) (2024 No 68)
– Published LW 15 March 2024
Coffs Harbour Local Environmental Plan 2013 (Map
Amendment No 10) (2024 No 69) – Published LW 15 March
2024
Conargo Local Environmental Plan 2013 (Map
Amendment No 1) (2024 No 70) – Published LW 15 March
2024
Deniliquin Local Environmental Plan 2013 (Map
Amendment No 1) (2024-71) – published LW 15 March
2024
Hawkesbury Local Environmental Plan 2012 (Map
Amendment No 6) (2024 No 72) – Published LW 15 March
2024
Port Stephens Local Environmental Plan 2013 (Map
Amendment No 7) (2024-67) – published LW 15 March
2024
State Environmental Planning Policy Amendment
(Housing) 2024 (2024-74) – published LW 15 March
2024
Wollongong Local Environmental Plan 2009 (Amendment
No 55) (2024-73) – published LW 15 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.
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