NSW Government Bulletin: Part 2 – In the Media, Practice and courts, Cases and Legislation - Constitutional & Administrative Law

In the media

Law Council of Australia supports amendments to the tax secrecy provisions to uphold legal professional and ethical standards
The Law Council welcomes the Australian Government's consideration of reforms with the broad objective of strengthening the integrity of the tax system, having regard to the views of the legal profession. The Law Council supports amendments to the tax secrecy provisions to ensure that if the Australian Tax Office or Tax Practitioners Board have concerns about the professional conduct of legal practitioners those agencies will be able to raise those matters directly with state and territory legal profession regulators (6 August 2023). Read the Law Council's media release here.

Multi-million dollar penalties for confidentiality breaches introduced to NSW Parliamentz
The Minns Labor Government will today introduce to Parliament the 'Revenue, Fines and Other Legislation Amendment Bill 2023', a series of amendments which promote integrity and help protect government from confidentiality breaches (1 August 2023). Read more here.

New law banning religious vilification passes NSW Parliament
The amendment to the NSW Anti-Discrimination Act 1977 makes it unlawful to, "by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons, because of their religious belief, affiliation or activity" (3 August 2023). Read more here.

Practice and courts

Decisions Reserved
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved (4 August 2023). Read more here.

AAT Bulletin Issue No. 15/2023
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. The Bulletin also regularly includes a sample of decisions recently published in the AAT's Migration & Refugee Division and Social Services & Child Support Division. It occasionally includes information on legislative changes that affect the AAT (31 July 2023). Read more here.

Supreme Court of NSW - Uncontested Probate Applications move online
As of 1 August 2023, Amendment No 434 to the Supreme Court Rules 1970 came into effect. The amendment requires that, with limited exceptions, non-contentious applications for a grant of probate or administration or for the resealing of a foreign grant are made and filed with the Supreme Court electronically. To assist with this transition, the registry will continue to accept paper-based applications up to and including 1 September 2023 (17 July 2023). You can view the key changes here and view the update here.

Cases

Ward v Port Stephens Council [2023] NSWLEC 1423
Development application - Council delays assessment of development application - refusal - s 34AA conciliation conference - no agreement - proposed construction of single storey 4 bedroom dwelling - proposed development is permissible with consent and subject to conditions under RU1 zoning - land is flood prone - agricultural use of land - flood mounds - Flood Certificate applicable when development application made was not current - second Flood Certificate issued shortly before hearing -change to characterisation of land to High Hazard Floodway from High Hazard Flood Storage - amendment to application to include flood refuge in attic of proposed dwelling above Probable Maximum Flood (PMF) level - Port Stephens Local Environmental Plan 2013 cl 7.3 repealed without savings provision - cl 5.21 does not apply to application - Port Stephens Development Control Plan (PSDCP) provisions apply - PSDCP to be applied with flexibility - performance based conditions can be applied - risk management - risk minimisation - access road has low point which becomes unpassable by vehicles when flood depth exceeds about 2.5m AHD - consequences for evacuation - Flood Emergency Response Plan (FERP) - occupants of proposed dwelling will be required to follow FERP - FERP requires that occupants evacuate when flood warning issued - is sufficient warning given - role of State Emergency Service (SES) - Evacuation Orders could be made - flash flooding - flooding from Hunter River - flood events immediately following hearing - conditions.
Conveyancing Act 1919 - Environmental Planning and Assessment Act 1979, ss 4.14, 4.15 - Land and Environment Court Act 1979, s 34AA - Local Government Act 1993, s 68 - Port Stephens Local Environmental Plan 2013, cll 2.1, 4.2B, 4.3, 5.10, 7.1, 7.2, 7.3, 7.6; Pt 7 - Roads Act 1993, s 138 - Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 - Standard Instrument (Local Environmental Plans) Order 2006, cl 8 - State Emergency Service Act 1989, ss 22, 22A - State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3 - State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 - State Environmental Planning Policy (Coastal Management) 2018 (repealed) - State Environmental Planning Policy (Koala Habitat Protection) 2019 (repealed) - State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4 - State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1 - State Environmental Planning Policy No 55 - Remediation of Land (repealed).

Cahalan v Lane Cove Council [2023] NSWCATAD 209
ADMINISTRATIVE LAW - administrative review - Government information - whether overriding public interest against disclosure - confidential information - information provided in confidence - prejudice to court proceedings - competitive commercial - legitimate business, commercial, professional or financial interests - conclusive presumption - legal professional privilege.
Administrative Appeals Tribunal Act 1975 (Cth) - Civil and Administrative Tribunal Act 2013 (NSW) - Evidence Act 1995 (NSW) - Freedom of Information Act 1989 (NSW) - Government Information (Public Access) Act 2009 (NSW) - Information Act 2002 (NT) - Local Government Act 1993 (NSW) - State Records Act 1998 (NSW) - Uniform Civil Procedure Rules 2005 (NSW) - State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Events) 2020.

Vogel v Department of Education [2023] NSWCATAD 208
ADMINISTRATIVE LAW - administrative review - extension of time - government information - refusal to deal with application - whether substantial and unreasonable diversion of agency's resources - consideration of s 60(3A) and (3B) factors - onus of proof.
Administrative Decisions Review Act 1987 (NSW) s 9, s 63 - Civil and Administrative Tribunal Act 2013 (NSW) s 36, 38, 41 - Freedom of Information Act 1987 (NSW) (Repealed) - Government Information (Public Access) Act 2009 (NSW), s 3, 4, 9,12, 13, 14, 60, 80, 100, 105 - Government Information (Public Access) Amendment Act 2018 (NSW) (Repealed).

Agardy v Commissioner of Police, NSW Police Force [2023] NSWCATAD 201
Administrative Law - access to government information - whether overriding public interest against disclosure of communications to police and personal information.
Administrative Decisions Review Act 1997; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998.

Captain Developments Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1409
DEVELOPMENT APPLICATION - multi dwelling housing development in R3 Medium Density Residential zone - whether adequate provision for disposal of stormwater.
Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Biodiversity and Conservation) 2021; Wingecarribee Local Environmental Plan 2010.

Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 206
GOVERNMENT INFORMATION - freedom of information - Government Information (Public Access) Act 2009 (NSW).
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act (2013) (NSW); Government Information (Public) Access Act 2009 (NSW); Government Sector Employment Act 2013 (NSW).

Heness v Commissioner of Police, NSW Police Force [2023] NSWCATAD 206
ADMINISTRATIVE REVIEW - firearms - threatening behaviour - AVOs - passage of time - character references - fit and proper person - public interest.
Administrative Decisions Review Act 1997; Firearms Act 1996.

Atkinson v Department of Premier and Cabinet [2023] NSWCATAD 205
INTERLOCUTORY ORDER - administrative review - Government Information - application by Information Commissioner to be provided with respondent's confidential material and to appear at confidential hearing - role of Information Commissioner - cabinet information.
Administrative Decisions Review Act 1997 - Government Information (Public Access) Act 2009.

Wolf v Secretary, Department of Education [2023] NSWCATAD 202
HUMAN RIGHTS - discrimination - racial vilification - public act - incite serious contempt and severe ridicule - teacher - classroom - indirect discrimination - causation - remedies - apology - public statement.
Anti-Discrimination Act 1977 - Inclosed Lands Protection Act 1901.

FXM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 200
ADMINISTRATIVE LAW - firearms - licensing - public interest - Fit and Proper Person.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW).

Lakeside Forster Pty Ltd v Midcoast Council [2023] NSWCATAD 198
ADMINISTRATIVELAW - government information - third party objection to release of certain information - whether overriding public interest against disclosure - diminish the competitive commercial value of the information - prejudice any person's legitimate business, commercial, professional or financial interests - lack of evidence to establish an overriding public interest against disclosure.
Administrative Decisions Review Act 1997 - Civil and Administrative Tribunal Act 2013 - Government Information (Public Access) Act 2009.

Zhang v Chief Commissioner of State Revenue [2023] NSWCATAD 207
Administrative Law - land tax - whether principal place of residence exemption applied - whether clause 6 of Schedule 1A to the Land Tax Management Act 1956 applied - whether clause 8 of Schedule 1A applied - whether Tribunal has power to exempt land from land tax or reduce amount of tax payable.
Land Tax Management Act 1956; Taxation Administration Act 1996.

Paul v Commissioner of Police, NSW Police Force [2023] NSWCATAD 196
ADMINISTRATIVE REVIEW - refusal of application for licence - breach of safe storage requirements - whether fit and proper - public interest.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996.

Davis v NSW Minister for Health [2023] NSWCATAP 211
APPEALS - appeal from summary dismissal of administrative review application - interlocutory decision of Tribunal requiring leave to appeal - consideration of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) - "lacking in substance" - leave refused.
ADMINISTRATIVE LAW - application for administrative review of directions contained in a public health order - where all four relevant public health orders had been repealed or expired prior to the hearing - whether proceedings "futile", "of no practical effect" or "lacking in utility".
Administrative Appeals Tribunal Act 1975 (Cth), s 42B - Administrative Decisions Review Act 1997 (NSW), s 55(2) - Administrative Decisions Tribunal Act 1997 (NSW), ss 73(5)(g)(ii), 73(5)(h) - Anti-Discrimination Act 1977 (NSW) - Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a) - Civil and Administrative Tribunal Act 2013 (NSW), ss 28(2), 36(2), 55(1)(b), 80 - Courts Legislation Further Amendment Act 1997 (NSW), Sch 1.1[8] - Equal Opportunity Act 1984 (Vic), s 44C - Health Services Act 1997 (NSW), s 116A(1) - Public Health Act 2010 (NSW), s 7 - Racial Discrimination Act 1975 (Cth) - Strata Schemes Management Act 1996 (NSW), s 185(4).

John v Health Secretary in respect of the Ambulance Service of NSW [2023] NSWIRComm 1073
EMPLOYMENT AND INDUSTRIAL LAW - termination - statutory rights - unfair dismissal - paramedic attended anti-lockdown protest - livestreamed event and made commentary critical of lockdown, NSW Police, members of the public and COVID-19 vaccines - whether dismissal for that conduct was harsh, unreasonable or unjust.
Industrial Relations Act 1996 ss 84, 88 - Public Health Act 2010 s 10.

Styles v Wollondilly Shire Council [2023] NSWCATAD 193
ADMINISTRATIVE REVIEW - Government Information (Public Access) Act 2009 (NSW) - whether information is held by the agency.
Administrative Decisions Review Act 1997 (NSW); Government Information (Public Access) 2009 (NSW).

Legislation

Proclamations commencing Acts
Residential Tenancies Amendment (Rental Fairness) Act 2023 No 9 - published LW 28 July 2023.

Regulations and other miscellaneous instruments
Final Determination [Biodiversity Conservation Act 2016] - published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] - published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] - published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] - published LW 4 August 2023.
Final Determination [Biodiversity Conservation Act 2016] - published LW 4 August 2023.
Road Transport Legislation Amendment (Visiting Drivers) Regulation 2023 - published LW 4 August 2023.
Subordinate Legislation (Postponement of Repeal) Order 2023 - published LW 28 July 2023.

Commonwealth

Act compilation
Corporations Act 2021 31/07/2023 - Act No. 50 of 2001 as amended
National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 31/07/2023 - Act No. 13 of 2011 as amended
Environment Protection and Biodiversity Conservation Act 1999 27/07/2023 - Act No. 91 of 1999 as amended
Excise Tariff Act 1921 27/07/2023 - Act No. 26 of 1921 as amended
Australian Securities and Investments Commission Act 2001 27/07/2023 - Act No. 51 of 2001 as amended

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: Part 2 – In the Media, Practice and courts, Cases and Legislation

In the media

Practice and courts

Cases

Legislation

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