ADVICE | TRANSACTIONS | DISPUTES

7 AUGUST 2017 ISSUE 24

PUBLIC SECTOR NEWSLETTER -

Former NSW minister for infrastructure MEDIA Andrew Kelly and former members of parliament, Eddie Obeid Snr and Joseph eSubpoenas make access to justice easier Tripodi have been found by the NSW Access to justice is now faster, easier and Independent Commission Against Corruption cheaper with a new eSubpoena service enabling (ICAC) to have engaged in serious corrupt people to submit subpoenaed items online to conduct in relation to conduct concerning NSW courts, Attorney General Mark Speakman a public private partnership proposal announced today. The online eSubpoena by Australian Water Holdings. ICAC has service is now available for the return of recommended that consideration be given to subpoenaed documents to registries across obtaining advice from the DPP with respect the NSW Supreme, District, Local and Land and to the prosecution of Mr Kelly, Mr Obeid Snr Environment Courts for civil matters. http:// and Mr Tripodi. Click here to read the full www.justice.nsw.gov.au/Pages/media-news/ report. media-releases/2017/esubpoenas-make- access-to-justice-easier.aspx ICAC also recently released its report on Acting President of Australian Law Reform Operation Ricco, Investigation into the Commission conduct of former City of Botany Bay Council Chief Financial Officer and others. The ICAC Mr Cornall has been appointed for a period of found that former City of Botany Bay Council three months, commencing 30 July 2017, while chief financial officer, Gary Goodman, had a recruitment process will be undertaken to fill the vacancy left by Emeritus Professor Rosalind engaged in serious corrupt conduct involving Croucher AM. This process will be conducted false or inflated invoices and incurring in accordance with Merit and Transparency personal expenditure of over $620,000. Guidelines issued by the Australian Public Service The report notes that there were Commission. https://www.attorneygeneral.gov. au/Mediareleases/Pages/2017/ThirdQuarter/ overwhelming failures in the Council’s Acting-President-of-Australian-Law-Reform- procedures and governance framework Commission-28-July-2017.aspx that created significant opportunities for corruption of which Mr Goodman and others Three new magistrates for NSW took full advantage. Eight recommendations Attorney General Mark Speakman today have been made to the now Bayside Council announced the appointments of Christopher to prevent the type of conduct exposed Halburd, Theresa Hamilton and Brett Shields in this investigation from recurring. The as magistrates of the Local Court of NSW. Mr ICAC has also recommended that the NSW Shields will be sworn in as a magistrate on 28 Government consider adopting a model of August, while Ms Hamilton and Mr Halburd will local council oversight that is comparable to join the Local Court bench on 11 September. that applicable to state government agencies. http://www.justice.nsw.gov.au/Pages/media- news/media-releases/2017/Three-new- Read more about the Operation Ricco report magistrates-for-NSW.aspx here.

1 ADVICE | TRANSACTIONS | DISPUTES

HRLC: takes important step towards comment on the positions put forward by the more open government Taskforce. Submissions for the consultations will Although Australia has, in many ways, a strong close on 17 August 2017. democracy, secrecy has noticeably increased across government. Australia’s commitment to CASES the Open Government Forum is a step towards Whish-Wilson; Australian Fisheries addressing some of the transparency issues Management Authority and (Freedom of that hold us back. https://www.hrlc.org.au/ news/2017/7/27/australia-takes-important-step- information) [2017] AATA 1098 towards-more-open-government FREEDOM OF INFORMATION — Access to documents — requests for access to documents Reducing Reoffending In Juvenile Justice in relating to fishing operations regulated by NSW agency — documents contain commercially Minister for Corrections David Elliott today sensitive information — whether disclosure announced the creation of new caseworker could reasonably be expected to adversely affect roles at Juvenile Justice, providing support, fishing operators’ cooperation with agency’s guidance and discipline to young offenders as monitoring program — whether disclosure of part of a commitment to reduce reoffending. documents could reasonably be expected to http://www.justice.nsw.gov.au/Pages/ have substantial adverse effect on the proper media-news/media-releases/2017/reducing- and efficient conduct of agency’s operations reoffending-in-juvenile-justice.aspx — whether access would, on balance, be contrary to the public interest — whether Political reformation reasonably practicable for agency to prepare Prime Minister Malcolm Turnbull has signalled he copies of documents modified by the deletion may be open to fixed four-year terms for federal of exempt and irrelevant matter, having regard parliament after Opposition Leader Bill Shorten to the nature and extent of the modification — renewed his call for an overhaul of Australia’s decisions under review set aside and substituted. electoral system. The change could only be Freedom of Information Act 1982, ss 3(2)(b), 4(1), introduced by a referendum. http://www.abc. 11A(5), 11B(3), 15, 22, 27, 31B, 47E(d), 47F, 47G, net.au/news/2017-07-23/malcolm-turnbull- 54L, 54M, 54W(b), 55G, 57A(1)(a), 61(1)(a), 93A bill-shorten-fixed-four-year-parliamentary- term/8735690 ‘LY’ and Commonwealth Ombudsman (Freedom of information) [2017] AICmr 68 The topic of four-year terms for the House of Representatives was also the subject of a Freedom of Information — Whether disclosure Commonwealth parliamentary library research would have a substantial adverse effect on the paper in 2000 - http://www.aph.gov.au/ proper and efficient conduct of the operations About_Parliament/Parliamentary_Departments/ of an agency — Whether contrary to public Parliamentary_Library/pubs/rp/rp0001/01RP04 interest to release conditionally exempt documents — (CTH) Freedom of Information NSW reviews child abuse civil laws Act 1982 ss 11A(5) and 47E(d) Attorney General Mark Speakman today David Albuquerque and Department of encouraged the community to have a say on Foreign Affairs and Trade (Freedom of changing laws to make it easier for survivors of child abuse to obtain civil justice, releasing information) [2017] AICmr 67 a consultation paper on the civil litigation Freedom of Information — Charges — Requests recommendations of the Royal Commission into for waiver of charge — Whether giving access to Institutional Responses to Child Sexual Abuse documents is in the general public interest or in http://www.justice.nsw.gov.au/Pages/media- the interest of a substantial section of the public news/media-releases/2017/nsw-reviews-child- — (CTH) Freedom of Information Act 1982 s 29 abuse-civil-laws.aspx Andrew Pascoe and Civil Aviation Safety ASIC Enforcement Review Taskforce consults Authority (Freedom of information) [2017] on ASIC’s telecommunications intercept AICmr 66 powers Freedom of Information —Whether documents The Government welcomes today’s release subject to legal professional privilege — Whether of the ASIC Enforcement Review Taskforce disclosure would have a substantial adverse position paper titled ‘ASIC’s Access to effect on the proper and efficient conduct Telecommunications Intercept Material’. As of the operations of an agency — Whether part of its review the Taskforce is examining disclosure of personal information unreasonable the adequacy of ASIC’s information gathering — Whether material in documents irrelevant powers, including information obtained from to the request — Whether contrary to the telecommunications interception warrants public interest to release conditionally exempt http://kmo.ministers.treasury.gov.au/media- documents — (CTH) Freedom of Information release/066-2017/ Act 1982 ss 11A(5), 22, 42, 47E(d) and 47F The position paper is available on the Treasury website. Interested stakeholders are invited to

2 ADVICE | TRANSACTIONS | DISPUTES

4nature Incorporated v Centennial Springvale to jurisdiction – whether denial of procedural Pty Ltd [2017] NSWCA 191 fairness ADMINISTRATIVE LAW – challenge to validity Commissioner of Police (NSW Police Force) v of State significant development consent Howard Silvers & Sons Pty Ltd [2017] NSWSC for proposed extension of Springvale coal 981 mine – consent authority’s satisfaction that development would have “a neutral or COMMON LAW – Local Court Appeal – beneficial effect” on water quality required – Firearms Act – whether magistrate erred in whether consent authority’s approach valid construction of s 4D – whether object claimed ENVIRONMENT AND PLANNING – challenge to be a children’s toy falls within s 4D(4) – to validity of State significant development determination of imitation firearm – necessity to consent for proposed extension of Springvale have regard to production and identification of coal mine – development must have “a neutral object - appeal allowed – decision set aside – or beneficial effect” on water quality under remitted back to the Local Court for decision to State Environment Planning Policy ( be made according to law Drinking Water Catchment) 2011 (NSW) cl 10(1) The Owners – Strata Plan No 5225 v Registrar – nature of comparison required STATUTORY INTERPRETATION – delegated legislation – no General of New South Wales [2017] NSWSC general principle requiring laxity or flexibility in 886 construction – adherence to basic principles PUBLIC ROAD – dedication at common law of statutory construction – focus on text and – unmade road – land described as road in context subdivision created before 1906 – acceptance and use by public – maintenance by Council State of New South Wales v Bouffler [2017] STATUTORY CONSTRUCTION – s224(3) Local NSWCA 185 Government Act, 1919 – freestanding operation TORTS – trespass to land – whether entry not subject to s327 – not opening or dedication of police officers authorised by law – six of road STATUTORY CONSTRUCTION – s327 police officers entered house occupied by Local Government Act – scope and operation the respondent without his consent – eight – inapplicable to exercise of s224(3) power officers entered respondent’s property without ADVERSE POSSESSION – exclusive physical consent – officers relied on ss 9 and 10 of the control – intention to possess as against Law Enforcement (Powers and Responsibilities) whole world – not established STANDING Act 2002 (NSW) – whether officers had – entitlement of body corporate to sue – requisite state of mind to satisfy ss 9 and 10 – adjoining land whether officers must each individually have state of mind – whether officers can enter to White v Commissioner of Fair Trading [2017] assist other officers engaged in an arrest – NSWCATAD 233 circumstances in which state of mind can be ADMINISTRATIVE REVIEW - tattoo parlours inferred STATUTORY CONSTRUCTION – Law – tattooist licence - adverse security Enforcement (Powers and Responsibilities) determination - fit and proper person - public Act 2002 (NSW) – whether each officer must interest individually have state of mind required under ss 9, 10 and 99 – whether context and purpose Tedder v Commissioner of Police, NSW Police indicates that meaning is to be given that is Force [2017] NSWCATAD 226 different from or qualifies plain meaning – ADMINISTRATIVE LAW – Government meaning of “reasonable grounds” STATUTORY information – access to information – form CONSTRUCTION – Law Enforcement (Powers of access - whether overriding public interest and Responsibilities) Act 2002 (NSW) – against disclosure – relevant considerations - relationship between ss 10 and 99 – whether personal information - nature of information entry to a premises pursuant to LEPRA, s 10 sought – public interest - whether release would requires a lawful arrest under s 99 – whether s prejudice the effective exercise of an agency’s 10 operates as a derivative of s 99 STATUTORY functions – whether release would prejudice an CONSTRUCTION – Law Enforcement (Powers investigation - investigation finalised – balancing and Responsibilities) Act 2002 (NSW), s 9 – exercise meaning of “breach of the peace” – whether breach of the peace requires actual or PRACTICE AND PROCEDURE threatened violence – whether threat of harm must be to third person OAIC: Updated privacy policy Robertson v Director of Public Prosecutions The OAIC has updated its privacy policy. The (NSW) & District Court NSW [2017] NSWCA update includes the following changes outlined 180 here https://www.oaic.gov.au/media-and- speeches/news/updated-privacy-policy ADMINISTRATIVE LAW – judicial review – generally – s 32 of Mental Health (Forensic OAIC: Independent review of the Privacy Provisions) Act 1990 – whether applicant eligible (Credit Reporting) Code 2014 under s 32 – whether failure to make finding as The OAIC has completed the tender process,

3 ADVICE | TRANSACTIONS | DISPUTES

and contracted PricewaterhouseCoopers (PwC) IPC NSW: Have your say on the development to conduct an independent review of the Privacy of uniform metrics on the use of FOI laws in (Credit Reporting) Code 2014 (Version 1.2). Australia More information will be provided as the review progresses. r more information about the CR Australian Information Commissioners and Code and credit reporting under the Privacy Act Ombudsmen, within the remit of each of their see the Credit Reporting page jurisdictions and led by NSW, have agreed on six proposed ‘Metrics on Public Use of Freedom of ANAO 2017–18 Corporate Plan Information Access Rights’ that can be viewed The ANAO 2017–18 Corporate Plan is the here. Members of the public, experts and other ANAO’s key strategic planning document. It stakeholders are invited to give your views on guides our operating environment and sets the metrics via a short survey here. http://www. out how we will deliver on our purpose. The ipc.nsw.gov.au/news-media/news/have-your- corporate plan is complemented by the annual say-development-uniform-metrics-use-foi- audit work program which reflects the ANAO’s laws-australia strategy and deliverables for the coming year (19 July 2017) ANAO 2017–18 Corporate Plan LEGISLATION - COMMONWEALTH Law Council of Australia Submissions 26 July 2017 Telecommunications (Integrated Public Response to Consultation Paper OPCAT in Number Database – Permitted Research Pur- Australia poses) Instrument 2017

AAT Bulletin 20/07/2017 - This instrument specifies the kinds The AAT Bulletin is a weekly publication of research for which access to information in containing a list of recent AAT decisions and the Integrated Public Number Database may be information relating to appeals against AAT permitted and repeals the Telecommunications decisions (Integrated Public Number Database – Permitted Issue No. 30/2017, 24 July 2017 Research Purposes) Instrument 2007 (No. 1). Issue No. 29/2017, 17 July 2017 Telecommunications (Integrated Public Number Database Scheme - Criteria for AHRC: e-bulletin, 26 July 2017 Deciding Authorisation Applications) The Australian Human Rights Commission Instrument 2017 e-bulletin. Published monthly, this e-bulletin 20/07/2017 - This instrument establishes the keeps you up-to-date with our programs, criteria for the Australian Communications projects and news. and Media Authority to use in order to decide NSW whether to authorise applications for access to the Integrated Public Number Database for NSW Sentencing Bench Book public number directories and researchers, and For the latest update, see Update 38, July 2017 repeals the Telecommunications (Integrated Public Number Database Scheme – Criteria For ICAC: Prosecution briefs with the DPP and Deciding Authorisation Applications) Instrument outcomes 2007 (No. 1). Last updated 17 July 2017 Telecommunications (Integrated Public Victims’ involvement in sentencing Number Database - Public Number Directory Requirements) Instrument 2017 The NSW Attorney General has asked us to conduct a review of victims’ involvement in 20/07/2017 - This instrument establishes the the sentencing process. The deadline for requirements for a public number directory preliminary submissions was 31 July 2017. http:// using information from the Integrated Public www.sentencingcouncil.justice.nsw.gov.au/ Number Database. Pages/Current-projects/VIS/Victims.aspx Telecommunications (Integrated Public JUDCOM Research Monograph 40 Number Database – Public Number Directory 20 July 2017: Transparent and consistent Additional Information) Instrument 2017 sentencing in the Land and Environment 20/07/2017 - This instrument specifies the Court of NSW: orders for costs as an aspect additional information that may be included in of punishment. A particular focus of the a public number directory to be that which is study is how orders for costs impact upon agreed between a person and the publisher. the sentencing process. The study suggests a revision of the concepts used for criminal liability for Tier 1 offences under the Protection of the Environment Operations Act 1997 (NSW). To obtain a copy, please order from shop.nsw

4 ADVICE | TRANSACTIONS | DISPUTES

KEY CONTACTS PANEL RELATIONSHIP CONTACTS Your contacts responsible for navigating our firm, connecting you with the appropriate expertise and achieving maximum efficiency. Instructions may be emailed to [email protected] at anytime.

Mark Feetham Loretta Reynolds Partner Partner, Markets +61 2 8248 5847 +61 3 8080 3705 +61 414 908 225 +61 403 069 819 [email protected] [email protected]

If you would like to receive a Contact Card with full list of contacts please email us.

NEWSLETTER EDITOR DEDICATED LIBRARIAN Available to assist NSW Government and agencies as required, at no charge. Sylvia Fernandez Partner Warwick Johns +61 2 8248 3499 Librarian +61 418 340 118 +61 2 9020 5709 [email protected] [email protected]

SUBSCRIBE TO NEWSLETTER To subscribe please email [email protected]

HELP DESK SERVICES (Help Desk Services) Thomson Geer is delighted to offer access to NSW Please note that the Help Desk Services are only available Government to its Legal Help Desk on our usual terms of in respect of any matter which is currently unallocated i.e. engagement and as set out below. to this firm or any other firm. Scope Key Contact and Help Desk Process We are pleased to be able to work collaboratively with You can access the Help Desk by: NSW Government to offer the following services (at no charge): (a) Calling 02 8248 5810; or • advice regarding discrete and non-complex legal (b) Emailing [email protected] queries – up to 30 minute teleconference with a Once relevant details are received from you (whether Partner, Special Counsel or relevant Senior Associate that be by email or over the phone) it will be directed to or, short written advice (max. 1 page); the appropriate Thomson Geer Partner, Special Counsel • the opportunity to ‘brainstorm’ or discuss topical and or Senior Associate. The Help Desk number and email complex legal issues with industry specialists – up address will be monitored during normal business hours to 30 minute teleconference with a Partner, Special (9.00 am to 5.00 pm (EST), Monday to Friday). Counsel or relevant Senior Associate; and Thomson Geer will use its best endeavours to provide the • advice regarding potential transactions – up to 30 Help Desk Services within one business day of the query minute teleconference with a Partner, Special Counsel being logged. SYDNEY or relevant Senior Associate. Level 25 1 O’Connell Street SUB-PANEL APPOINTMENTS Sydney NSW 2000 Thomson Geer is appointed to the following NSW Government sub-panels: +61 2 8248 5800 1(c) Major commercial matters (incl. ICT) 4(f) Discrimination MELBOURNE 2(a) Commercial and contractual matters 6(b) General litigation and dispute resolution Level 39 4(a) Employment and industrial relations law 6(c) Debt recovery Rialto South Tower 525 Collins Street Melbourne VIC 3000 +61 3 8080 3500

BRISBANE Level 16 Waterfront Place, 1 Eagle Street Brisbane QLD 4000 +61 7 3338 7500

ADELAIDE Level 7 19 Gouger Street Adelaide SA 5000 +61 8 8236 1300 This Alert is produced by Thomson Geer. It is intended to provide general information in summary form on legal topics, current at the 5 time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be www.tglaw.com.au sought in particular matters. Liability limited by a scheme approved under Professional Standards Legislation.