01 November 2023
33 min read
#Government, #Dispute Resolution & Litigation
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The Public Interest Disclosures Act 2022 (NSW) (PID Act 2022) commenced on 1 October 2023, replacing the Public Interest Disclosures Act 1994 (NSW)(PID Act 1994). The PID Act 2022 introduces significant reforms to how public interest disclosures are made, received and handled. It also provides greater protection for people who make public interest disclosures compared to the provisions in the PID Act 1994.
The PID Act 2002 applies to, and imposes several obligations on, NSW public sector agencies, including onerous training and awareness responsibilities on all managers and employees. It also strengthens criminal penalties and civil liabilities for individuals and agencies.
Under section 16 of the PID Act 2022, an ‘agency’ includes the following individuals or bodies:
Under section 21 of the PID Act 2022, public interest disclosures are separated into three categories:
A disclosure qualifies as a voluntary public interest disclosure if the maker of the disclosure honestly and on reasonable grounds believes that the disclosure shows or tends to show serious wrongdoing. Employment grievances which do not have significant implications beyond matters personally affecting an individual or disagreements as to reasonable management actions are not voluntary public interest disclosures (see section 26(3) of the PID Act 2022).
Section 29 of the PID Act 2022 enables the head of an agency to determine that a disclosure made by a person is a voluntary public interest disclosure, even if the disclosure is not.
The administrative requirements for receiving and dealing with voluntary public interest disclosures are set out at Part 5 of the PID Act 2022.
Each of the three categories of public interest disclosure provides protection to the maker of the disclosure where the disclosure is about ‘serious wrongdoing’ by a public official. This term is broadly defined in section 13 of the PID Act 2022 and includes, among other things:
A disclosure is about serious wrongdoing if the disclosure includes an allegation of the serious wrongdoing or shows or tends to show the serious wrongdoing.
Whilst the PID Act 2022 refers to serious wrongdoing, the threshold seriousness set by a number of the categories of wrongdoing is lower than that specified under the PID Act 1994. For example, serious maladministration refers to conduct “other than conduct of a trivial nature”. In contrast, the PID Act 1994 defined maladministration as only being relevant “action or inaction of a serious nature.”
A disclosure will not be a public interest disclosure to the extent that the maker of the disclosure wilfully makes a false statement or misleads or attempts to mislead the agency or person to whom the disclosure is made.
Whether a person is a ‘public official’ is a central concept under the PID Act 2022 as any reported instance of ‘wrongdoing’ must be made by a ‘public official’.
The PID Act 2022 also significantly expands the categories of individuals who can make a public interest disclosure. In addition to individuals employed by an agency, those providing services or exercising functions on behalf of an agency, including contractors, subcontractors or volunteers can make a public interest disclosure.
Local councils, state government departments and all public service agencies included in the Government Sector Employment Act 2013 (NSW) are agencies under the PID Act 2022 and accordingly, any employees, contractors, subcontractors and volunteers of those agencies will be public officials.
Under the PID Act 1994, a disclosure that was not made to the appropriate investigating authority or public authority was generally not regarded as a public interest disclosure and therefore the person who made the disclosure was not protected under the PID Act 1994. The only exception was where the public official who made the misdirected disclosure honestly believed it was the appropriate investigating authority to deal with the disclosure.
However, under the PID Act 2022, a person will not be disadvantaged by making a disclosure to the ‘wrong’ person – as rather than there being separate pathways for making a public interest disclosure, all public interest disclosures will be made in the same manner.
Under the PID Act 1994, a public authority was only required to designate at least one officer as being responsible for receiving public interest disclosures. The PID Act 2022 widens the number of recipients of voluntary public interest disclosures to include:
The PID Act 2022 imposes a mandatory obligation on managers who receive a public interest disclosure, to communicate, as soon as practicable, the disclosure to a disclosure officer for an agency with which either the manager or the public official who made the disclosure is associated. The term ‘manager’ is broadly defined in section 15 of the PID Act 2022.
A voluntary public interest disclosure may also be made to a member of Parliament or a journalist (see section 27(1)(e) of the PID Act 2022). Such a disclosure will only be protected if made in limited circumstances, i.e., where the disclosure is substantially true, the same disclosure has already been made to a person within the agency, and the agency has decided neither to investigate nor refer the disclosure or has ceased to investigate the disclosure.
Part 3 of the PID Act 2022 protects individuals who make a public interest disclosure by making it an offence to take detrimental action against those people where their disclosure is “a contributing factor” to those actions. This is a lower threshold than under the PID Act 1994, where it was only an offence to take detrimental action against the maker of a disclosure that was “substantially in reprisal” for the disclosure.
Other protections under the PID Act 2022 include:
The PID Act 2022 creates several obligations for agencies, including:
If you have any questions about the legislation or your responsibilities under the PID Act 2022, please get in touch with our government team.
Author: Greg Wrobel
Chair of NSW parliamentary inquiry into impacts of metal mining on human health flags integrity concerns
The chair of a parliamentary inquiry into the impacts of metal mining on human health is worried about its integrity after the majority of its committee members blocked the appearance of "highly relevant" witnesses. The inquiry is investigating the current and potential impacts of gold, silver, lead and zinc mining on human health, land, air and water quality (26 October 2023). Read more here.
First Nations take legal action over alleged lack of consultation on Fracture Rock Water Resource Plan
A confederation of 20 First Nations groups has launched a legal challenge against the federal government, alleging it failed to meet its legal requirements to engage and consult with Indigenous groups before approving a water resource plan. The Murray Lower Darling Rivers Indigenous Nations (MLDRIN) group claims members of affected nations were not appropriately consulted on matters including cultural, social, and spiritual aspects tied to water resources (26 October 2023). Read more here.
National Skills Agreement supporting NSW journey to net zero
Following the signing of the National Skills Agreement the NSW Government is continuing to bolster its commitment to reskill NSW and transform the economy to net zero with TAFE NSW launching 8 new micro skills related to renewables. The 5- year National Skills Agreement (NSA) will deliver a Commonwealth investment of up to $3.8 billion into the skills and training sector in NSW, supporting the Minns Labor government’s commitment to rebuild TAFE and training in NSW. This includes the NSW Government’s strategy to secure the reliable supply of clean and affordable renewable energy, funding skills training in renewable energy and technology sector (23 October 2023). Read more here.
AAT Bulletin No. 21/2023
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 (23 October 2023). Read more here.
Federal Court Practice Note – Schemes of Arrangement (GPN-SOA)
The Chief Justice of the Federal Court of Australia has issued a new Practice Note which implements the Practice Note – Harmonisation in schemes of arrangement as developed by the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand. The Practice Note is effective from 13 October 2023. Read the Practice Note here.
Land and Environment Court of NSW – Judicial Newsletter Volume 15 Issue 3
The Land and Environment Court of NSW’s (NSWLEC) Judicial Newsletter is a quarterly publication containing Court News, Judgements from the United Kingdom, the Supreme Court of the Northern Territory, NSW Court of Appeal, Supreme Court of NSW and the NSWLEC, and relevant legislative changes made between 6 March 2023 and 10 September 2023 (5 October 2023). Read more here.
Bus Industry Taskforce Directions for On-Street Transit White Paper
The white paper, released at the Western Sydney Bus Symposium on 25 October 2023, outlines the key challenges and identifies a way forward in delivering a more equitable provision of bus services for passengers in Western Sydney and across NSW. The white paper identifies 5 key moves to transform bus services across the state (25 October 2023). Read the On-Street Transit White Paper here. Read the media release here.
New Development Application withdrawal guidelines for councils to boost housing supply
The Office of Local Government’s new 23-12 Guidelines on the withdrawal of development applications (the guidelines) will help address the State’s housing shortfall to ensure that the development application (DA) process is not delaying the pipeline of housing projects across NSW. Under the new guidelines, Councils will be required to accelerate DA assessment timeframes and not request unnecessary information (5 October 2023). Read the guidelines here.
Dexus Funds Management Limited v The Council of the City of Sydney [2023] NSWLEC 1637
DEVELOPMENT APLPICATION – building signage – whether sign is a building identification sign – heritage conservation – effect of proposed development on local heritage significance – whether a significant tenant.
Environmental Planning and Assessment Act 1979, s 8.7; Standard Instrument (Local Environmental Plans) Order 2006; State Environmental Planning Policy (Industry and Employment) 2021, Ch 3 ss 3.1 3.2, 3.6, Pt 3.3 ss 3.7, 3.11 3.19, Sch 5; State Environmental Planning Policy (No 64) – Advertising and Signage; Sydney Local Environmental Plan 2012, cll 5.10, 6.21C, Sch 5 cll 1, 2, 3, 4, 5.
Gearin v Commissioner for Fair Trading [2023] NSWCATOD 155
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to cancel registration as a certifiers pursuant to section 48 of the Building Professionals Certifiers Act 2018 (NSW)
PRACTICE AND PROCEDURE – INTERLOCUTORY ORDER – interim decision – factors relevant to exercise of the power to make the interim decision under section 60 of the Administrative Decisions Review Act 1997 (NSW) – interlocutory decision to take effect retrospectively – stay.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Building and Development Certifiers Act 2018; Building Professionals Act 2005 (NSW); Environment Planning and Assessment Regulation 2000 (NSW).
Dibb v Transport for NSW [2023] NSWLEC 114
COMPULSORY ACQUISITION – market value of acquired land – underlying zoning at acquisition date low density residential – numerous constraints on development of land for 26-lot subdivision in mind of hypothetical purchaser – river on land with need to obtain approval to pipe and traffic access and topography constraints affect consideration of risk in valuation process – relatively risk free 7-lot subdivision should be valued – disputed comparable sales adjustments considered – disturbance claim that actual use of land for land banking accepted.
Coffs Harbour Local Environmental Plan 2013 (NSW), cl 7.6, Land Use Table; Coffs Harbour City Local Environmental Plan 2000 (NSW); Interpretation Act 1987 (NSW), s 33; Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 42, 54, 55, 56, 59, 61, 66; Local Government Act 1993 (NSW); North Coast Regional Environmental Plan 1998, cl 38; Rivers and Foreshores Improvement Act 1948 (NSW), s 2; Valuation of Land Act 1916 (NSW), s 6A; Water Management Act 2000 (NSW), ss 91, 91E, Dictionary; Water Management (General) Regulation 2018 (NSW), reg 3, Sch 2.
Karakaya v Commissioner of Police, NSW Police Force [2023] NSWCATAD 282
ADMINISTRATIVE LAW – administrative review – Government Information – whether there is an overriding public interest consideration against disclosure – balancing the public interest.
Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009; Police Regulation 2015; Privacy and Personal Information Protection Act 1998.
Rikkone v NSW Ombudsman TAFE NSW [2023] NSWCATAD 278
Administrative Law – administrative review – Civil and Administrative Tribunal – no jurisdiction to administratively review decisions made under the Technical and Further Education Commission Act 1990.
Anti-Discrimination – Civil and Administrative Tribunal – no jurisdiction to consider complaint without a referral under s 95 of the Anti-Discrimination Act 1977.
Administrative Decisions Review Act 1997; Anti-Discrimination Act 1977; Civil and Administrative Tribunal Act 2013; Technical and Further Education Commission Act 1990.
Application for Crown Employees (Office of the Director of Public Prosecutions, Flexible Working Hours) Award 2022 [2023] NSWIRComm 1106
EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – approval and creation – application for new award – forfeiture of “flex hours” by lawyers working in the Office of the Director of Public Prosecutions – consideration of the circumstances in which the lawyers work – consideration of extent of “flex hours” forfeiture – whether proposed award would be effective to prevent forfeiture – consideration of other issues arising – whether intervention of Commission warranted.
Industrial Relations Act 1996 s 10.
Chrystal v Commissioner of Police, NSW Police Force (No 2) [2023] NSWIRComm 1108
EMPLOYMENT AND INDUSTRIAL LAW – Police – removal – failure to comply with direction requiring vaccination against COVID-19 – lawful direction – direction does not need to be reasonable – whether direction complied with by not performing duties – late raising of arguments by Applicant contrary to procedure set out in s 181F(1) – Whether direction contravened no extra claims clause in Police Award – validity of delegation of discretion to grant exemption from requirement to be vaccinated – reasonableness of denial of request for exemption – Conduct contrary to s 7 of Police Act 1990 (NSW), reg 8 of Police Regulation 2015 (NSW), s 28 of the Work Health and Safety Act 2011 (NSW) and NSW Police Force Code of Conduct and Ethics – applicant went on recreation leave the day after deadline for first dose of vaccine and a week later, until date of removal, was certified as unfit to work – applicant has not discharged onus – application dismissed.
Industrial Relations Act 1996 (NSW) s 163, 357 and 359; Interpretation Act 1987 (NSW), ss 3 and 49; Police Act 1990 (NSW), ss 6, 7, 31, 181D, 181E,181F,181G and 201; Police Regulation 2015 (NSW), reg 8; Work Health and Safety Act 2011 (NSW), s 28.
Darmanin v Hornsby Shire Council [2023] NSWIRComm 1107
EMPLOYMENT AND INDUSTRIAL LAW – termination – statutory rights – unfair dismissal – employee dismissed for failure to comply with employer’s requirement to be vaccinated against COVID-19-whether the requirement to become vaccinated against COVID-19 was a lawful and reasonable direction- whether dismissal otherwise harsh, unreasonable or unjust.
Industrial Relations Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).
Vanderstock v Victoria [2023] HCA 30
Constitutional law (Cth) – duties of excise – exclusive power of Commonwealth Parliament – scope and operation of s 90 of Constitution – where s 7(1) of Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) ("ZLEV Charge Act") purported to oblige registered operator of zero or low emissions vehicle ("ZLEV") to pay charge for use of ZLEV on "specified roads" ("ZLEV charge") – where "specified roads" defined to include all roads in Victoria and elsewhere in Australia over which public has right of way – Where ZLEV charge a debt due by registered operator to Victoria – where question of law stated for opinion of Full Court as to whether s 7(1) of ZLEV Charge Act invalid for imposing duty of excise within meaning of s 90 of Constitution – whether ZLEV charge properly characterised as tax on goods – whether definition of duty of excise stated in Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] (1993) 178 CLR 561 and Ha v New South Wales (1997) 189 CLR 465 as tax on production, manufacture, sale or distribution of goods exhaustive or descriptive – where application for leave to reopen Capital Duplicators [No 2] and Ha refused – whether inland tax on goods imposed at stage of consumption answers description of duty of excise – whether Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 should be reopened and overruled.
Words and phrases – "affect goods as articles of commerce", "articles of commerce", "close relation to goods", "commodities", "constitutional fact", "consumer", "consumption", "consumption tax", "criterion of liability", "dealing in goods", "direct tax", "distance-based charge", "distribution", "duty of customs", "duty of excise", "electric vehicle", "excise", "exclusive power", "imposts on goods", "incidence of tax", "indirect tax", "inland tax on goods", "manufacture", "markets in goods", "natural tendency", "point of consumption", "point of receipt by the consumer", "price of goods", "production", "sales tax", "stage of consumption", "stream of production and distribution", "tax on commodities", "tax on consumption", "tax on distribution", "tax on goods", "tax on manufacture", "tax on production", "tax on sale of goods", "tendency to depress demand for goods", "trading tax", "zero or low emissions vehicle".
Constitution, ss 51(ii), 51(iii), 53, 55, 86, 87, 88, 90, 92, 93, 109; Road Safety Act 1986 (Vic), s 3; Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic), ss 3, 6, 7, 8, 9, 10, 11, 15, 18, 19.
Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 275
ADMINISTRATIVE LAW – administrative review – Government information – whether overriding public interest against disclosure - confidential information – expectation of confidentiality.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Freedom of Information Act 1982 (Cth); Freedom of Information Act 1992 (WA); Government Information (Public Access) Act 2009 (NSW); Information Act 2002 (NT); Police Act 1990 (NSW); State Records Act 1998 (NSW).
O’Brien v Commissioner of Police, NSW Police Force [2023] NSWCATAD 272
ADMINISTRATIVE REVIEW – application for firearms licence – whether not in the public interest for applicant to hold a licence – whether applicant has a mental illness – whether false and misleading information provided to the Commissioner – genuine belief of applicant.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996.
Lawler v NSW Education Standards Authority [2023] NSWCATAD 273
ADMINISTRATIVE LAW – Education Act – home schooling – registration – whether part-time home schooling registration permitted – whether requirements in key learning areas satisfied.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Education Act 1990 (NSW).
Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248
ADMINISTRATIVE LAW – statutory construction – relevant considerations – Gaming Machines Act 2001 (NSW) ss 39-40 – Application for reduction of mandatory shutdown period – Whether Authority misconstrued Ministerial Guideline – whether the term “venues” in the Ministerial Guideline encompassed the singular – Whether Authority was wrong to reject application.
STATUTORY INTERPRETATION – Interpretation Act 1987 (NSW) s 8(c) – whether the Interpretation Act applies to Ministerial Guideline – interplay between common law rules on statutory interpretation and drafters of legislative instruments – courts drawing inferences as to likely intentions of drafters – whether the plural encompasses the singular.
Companies Act 1961 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Gaming and Liquor Administration Act 2007 (NSW) s 6; Gaming Machines Act 2001 (NSW) ss 3, 4, 7, 39-42, 205; Gaming Machines Amendment (Shutdown Periods) Act 2003 (NSW); Gaming Machines Regulation 2010; Gaming Machines Regulation 2019; Interpretation Act 1987 (NSW) ss 3, 5, 7, 8, 31, 33, 34; Subordinate Legislation Act 1989 (NSW) s 7; Unlawful Gambling Act 1998 (NSW) s 7(f).
Wilson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 271
ADMINISTRATIVE REVIEW – firearms – confidentiality – non-publication – public interest.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997.
Clift v Commissioner of Police, NSW Police Force [2023] NSWCATAD 269
Administrative Law – Firearms Act – firearms licence – revocation of licence – conditional release order – safe storage requirements.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Firearms Act 1996.
Belkheir v Director of Public Prosecutions (NSW) [2023] NSWSC 1233
ADMINISTRATIVE LAW – judicial review of Local Court orders – committal proceedings in the Local Court pursuant to Part 2 of Chapter 3 of the Criminal Procedure Act – delay in police investigation of criminal allegations – issue of delay in the progress of committal proceedings – whether brief of evidence is compliant with the Criminal Procedure Act – whether extension of time to file charge certificate was validly granted – undesirability of interfering in criminal proceedings by separate claims – futility of claim - summons dismissed.
Crimes Act 1900 (NSW); Criminal Procedure Act 1986 (NSW); Director of Public Prosecutions Act 1986 (NSW).
YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285
HUMAN RIGHTS – disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying ‘authority or body’ within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Health Services Act 1997 (NSW); Public Health Act 1991 (NSW) (repealed); Public Health Act 2010 (NSW); Private Health Facilities Act 2007 (NSW); Private Health Facilities Regulation 2017 (NSW).
Roxburgh v Secretary, Department of Education NSW [2023] NSWCATAD 266
HUMAN RIGHTS – interim order – s105 Anti-Discrimination Act 1977 – status quo – balance of convenience – abandonment of employment policy – no irreputable damage – preservation of rights.
Anti-Discrimination Act 1977.
oOh!media Fly Pty Limited v Transport for NSW (No 2) [2023] NSWLEC 112
COMPULSORY ACQUISITION – first instance judgment delivered – parties provided agreed list of questions for determination in first instance hearing – 217 page judgment delivered addressing all agreed questions – answers to be incorporated in agreed Excel spreadsheet to derive quantum of compensation – Applicant considers additional issue should be determined in light of findings – informal application to hear and determine new issue – issue not raised in Applicant's case – issue sought to be raised inconsistent with Applicant's case at first instance hearing – preliminary forensic accounting advice tendered – advice from each party’s expert shows extensive further evidence required – matter now sought to be agitated arises from conventional application of long settled and recently applied High Court authority – informal application for further hearing refused.
INTEREST – answers provided to agreed questions resulted in compensation outcome less than that determined by the Valuer General – obligation on Applicant to repay monies to Respondent – Respondent seeks order that Applicant pay post-judgment interest on money to be repaid – order for post-judgment interest discretionary – not appropriate to exercise discretion to order payment of interest by dispossessed Applicant – order for payment of interest rejected.
COSTS – respondent seeks order for costs of informal application seeking further hearing arising from the first instance decision – costs a matter of discretion – not appropriate to order dispossessed Applicant to pay costs of informal application – application for costs rejected.
CONFIDENTIAL INFORMATION PROTECTION – applicant seeks orders for redaction of confidential information in first instance judgment – no opposition to redaction orders – redactions ordered to be made.
Civil Procedure Act 2005, ss 98(1), 101; Land and Environment Court Act 1979, ss 38(2) and 39.
LW & EBR Peeck & Sons Pty Ltd v Regional Growth NSW Development Corporation [2023] NSWLEC 1617
COMPULSORY ACQUISITION – objection to the amount of compensation offered by the respondent – conciliation conference – agreement between the parties – orders.
Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55, 56, 59, 66; Land and Environment Court Act 1979, s 34.
Australian Salaried Medical Officers’ Federation (NSW) v Health Secretary in respect of South Wester Sydney Local Health District [2023] NSWIRComm 1105
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – dispute resolution – interpretation – office accommodation – reasonably necessary.
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – arbitration.
Health Administration Act 1982 s 8; Health Service Act 1997 s 126B; Industrial Relations Act 1996, ss 6, 130, 135, 136, 137, 139, 146, 175; Work Health and Safety Act 2011 ss 47, 48, 49.
Aidan Llewellyn trading as the Trustee for the House of Llewellyn v the State of New South Wales [2023] NSWSC 1250
MORTGAGES AND SECURITIES – whether registered and authenticated birth certificate a security – “full faith and credit” - Summary dismissal of claim.
The Constitution (Cth).
Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261
APPEALS – appeal against conviction – nature of appeal - failure to establish any of the three grounds of appeal - appeal is dismissed – conviction sustained.
EMPLOYMENT AND INDUSTRIAL – prosecution – work health and safety – relevant principles – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker – s 19(1) of the Workplace Health and Safety Act 2011 (NSW) – elements of offences – reasonable practicability – Baiada – written instructions – training – supervision - relevance of post-incident conduct – essential facts – safe work procedures and methods – written instructions and directions – whether safe work methods and procedures were reasonably practicable – omissions.
CRIMINAL LAW – appeal – work health and safety – exposing employee to risk of death or serious injury – conviction sustained.
EVIDENCE – communication with deceased persons – rejection of evidence when it is illogical, unreliable or contradictory to a large body of alternative evidence – Landmark Roofing – accepting parts but not all evidence.
Coal Mines Act 1911 (UK); Crimes Act 1958 (Vic); Criminal Appeal Act 2012 (NSW), s 5AA(1)(a); Health and Safety in Employment Act 1992 (NZ); Metalliferous Mines General Regulations 1938 (UK); Occupational Health & Safety Act 2004 (Vic); Occupational Safety and Health Act 1984 (WA); Work Health and Safety Act 2022 (NSW), s 155; Work Health and Safety (National Uniform Legislation) Act 2011 (NT); Workplace Health and Safety Act 2011 (NSW), ss 19, 32, 155.
Blanc Black Projects Pty Limited v Willoughby City Council (No 2) [2023] NSWLEC 1621
DEVELOPMENT APPLICATION – remitted matter – residential flat building – condition requiring payment of affordable housing contribution.
Environmental Planning and Assessment Act 1979, ss 4.17, 7.11, 7.32, 8.7; Land and Environment Court Act 1979, s 56A; State Environmental Planning Policy No 70 – Affordable Housing (Revised Schemes), cll 3, 6, 7, 8, 9, 10, Sch 2, Principle 1; Willoughby Local Environmental Plan 1995; Willoughby Local Environmental Plan 2012, cll 1.8A, 4.3, 4.6, 6.8; Willoughby Local Environmental Plan 2012 (Amendment No 34).
Ferguson v Shoalhaven City Council [2023] NSWCATAD 276
HUMAN RIGHTS – Racial Discrimination – victimisation.
Anti-Discrimination Act, 1977 (NSW).
Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No 11) [2023] NSWLEC 110
COSTS: determination of the ‘event’ – whether costs should be apportioned – whether costs payable on an indemnity basis on the basis of Calderbank offers – whether costs payable on an indemnity basis on the basis of abuse of process – legal principles – costs apportioned – costs payable on an ordinary basis only.
Civil Procedure Act 2005, ss 56, 98; Protection of the Environment Operations Act 1997, s 50(2); Uniform Civil Procedure Rules 2005, rr 1.5, 42.1, 42.5, Sch 1.
Chau v Georges River Council [2023] NSWLEC 1619
DEVELOPMENT APPLICATION – mixed use – boarding house – clause 4.6 – breach to height of buildings – design excellence – heritage – streetscape – amenity.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.11, 8.15; Environmental Planning and Assessment Regulation 2000, cll 55, 64; Georges River Local Environmental Plan 2021, cll 4.3, 4.6, 6.10; Land and Environment Court Act 1979, s 39; Standard Instrument (Local Environmental Plans); Amendment (Land Use Zones) Order 2022; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy (Biodiversity and Conservation) 2021; State Environmental Planning Policy (Housing) 2021, Sch 7A; State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy (Transport and Infrastructure) 2021.
Mathew Massasso t/as Five Dock Pharmacy v Sydney Metro [2023] NSWLEC 115
COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for loss of profit rent allegedly lost for the remainder of the term of the lease renewal options – consideration of market rent – no difference between passing rent and market rent established – profit rent claim fails.
COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for relocation of retail pharmacy business – substantial demolition and construction/reconstruction and structural alterations to relocation premises – whether structural alteration costs appropriate to be borne by Applicant and reimbursed by acquiring authority – costs of demolition and construction/reconstruction appropriate to be regarded as landlord’s costs – claim rejected.
COMPENSATION – claim for cost of buying out existing tenants in order to render demolition and construction/reconstruction activities possible – cost of buying out existing tenants appropriate to be regarded as landlord’s expenses – claim for reimbursement of cost of buying out existing tenants rejected.
COMPENSATION – claim for costs of fit-out of new premises – new premises fitted-out not only in compliance with regulatory requirements but also to best contemporary pharmacy practice – were costs of fit-out reasonably incurred and thus compensable – costs of fit-out reasonably incurred – Applicant entitled to reimbursement for costs of fit-out.
COMPENSATION – claim for differential in rental between that paid at the acquired premises and that paid at the relocation premises – rent at relocation premises higher than that at acquired premises - claim based on full term of lease assuming exercise of multiple renewal options - relocation premises larger than acquired premises rate per square metre at relocation premises lower than that at acquired premises – rent comparison appropriate on rate per square metre – no basis for claim – differential rent claim rejected.
COMPENSATION – claim for reimbursement for double rental paid at the acquired premises and that paid at the relocation premises – claim based on time including time for demolition and construction/reconstruction works – not appropriate to order reimbursement for rent paid during period whilst landlord’s works were being undertaken – appropriate to allow nominal three-month rent-free period for fit-out works as provided for in the lease– claim for reimbursement of double rental rejected.
COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for temporary business losses – losses said to arise as a consequence of this favourably located new premises – whether loss occasioned by ongoing gradual decline of business – claim not established.
COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for long-term loss of profit as a consequence of non-establishment of proposed nearby medical Centre – site of proposed medical Centre also resumed for public purpose – assumptions underpinning claim of increased business from medical centre not established – claim rejected – claim rejected.
COSTS – claims arising from compulsory acquisition of leasehold interest in retail premises – although significantly unsuccessful, Applicant's case not completely unarguable or hopeless – appropriate acquiring authority pays costs of Applicant on ordinary basis.
Civil Procedure Act 2005; Health Practitioner Regulation 2016 (NSW); Land Acquisition (Just Terms Compensation) Act 1991; Uniform Civil Procedure Rules 2005.
In force
Criminal Legislation Amendment (Knife Crimes) Act 2023 No 12 – commenced 23 October 2023
State Insurance and Care Governance Amendment (ICNSW Governance) Act 2023 No 33 – assented to 24 October 2023
Radiation Control Amendment Act 2023 No 30 – assented to 24 October 2023
Mining Amendment (Mineral Claims – Opal) Act 2023 No 29 – assented to 24 October 2023
Passed by both Houses
Revenue, Mining and Energy Legislation Amendment Bill 2023 – passed 19 October 2023
Justice Legislation Amendment (Miscellaneous) Bill 2023 – passed 19 October 2023
Health Legislation Amendment (Miscellaneous) Bill 2023 – passed 18 October 2023
Water Recycling and Processing Corporation (Authorised Transaction) Amendment Bill 2023 – passed 18 October 2023
Statute Law (Miscellaneous Provisions) Bill (No 2) 2023 – passed 18 October 2023
Defamation Amendment Bill 2023 – passed 17 October 2023
Government Bills
24-Hour Economy Commissioner Bill 2023 – introduced LC 19 October 2023
24-Hour Economy Legislation Amendment (Vibrancy Reforms) Bill 2023 – introduced LC 19 October 2023
Biosecurity Amendment (Independent Biosecurity Commissioner) Bill 2023 – introduced LC 19 October 2023
Building Legislation Amendment Bill 2023 – passed LC 19 October 2023
Centennial Park and Moore Park Trust Amendment (Car Parking) Bill 2023 – amended in LA, introduced LC for concurrence 19 October 2023
Centennial Park and Moore Park Trust Amendment (Public Transport) Bill 2023 – introduced LC 17 October 2023
Crime and Criminal Procedure Legislation Amendment Bill 2023 – introduced LA 18 October 2023
Emergency Services Legislation Amendment Bill 2023 – amended in LC and referred to LA 19 October 2023
Jury Amendment Bill 2023 – introduced LC 19 October 2023
Road Transport Legislation Amendment (Automated Seatbelt Enforcement) Bill 2023 – introduced LA 18 October 2023
Sheriff and Court Security Amendment Bill 2023 – introduced LA 18 October 2023
Strata Legislation Amendment Bill 2023 – passed LC 19 October 2023
Non-government Bills
Prevention of Cruelty to Animals Amendment (Independent Office of Animal Welfare) Bill 2023 – introduced LC 18 October 2023
Surveillance Devices Amendment (Public Interest Exemptions) Bill 2023 – introduced LC 11 October 2023
Regulations and miscellaneous instruments
Criminal Procedure Amendment (Penalty Notice) Regulation 2023 (SI 529) – commenced 23 October 2023
Regional Development Amendment (Advisory Council) Regulation 2023 (SI 575) – LW 20 October 2023
Environmental Planning Instruments
Yass Valley Local Environmental Plan 2013 (Amendment No 18) (2023 EPI 580) – LW 20 October 2023
Lake Macquarie Local Environmental Plan 2014 (Amendment No 50) (2023 EPI 577) – LW 20 October 2023
Griffith Local Environmental Plan 2014 (Amendment No 7) (2023 EPI 576) – LW 20 October 2023
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