Icons/Ionic/Social/social-pinterest

NSW Government Bulletin

13 November 2018

#Government

NSW Government Bulletin

In Attorney General for New South Wales v Gatsby (2018) NSECS 254, the NSW Court of Appeal (the Court) held that the Civil and Administrative Tribunal of NSW (NCAT) is not a court of a State and therefore does not have jurisdiction to determine matters between residents of different States by reason of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution

Proceedings before the appeal 

Two proceedings under the Residential Tenancies Act 2010 (NSW) (RT Act) were commenced in NCAT between residents of different States: Gatsby v Gatsby (RT 15/56639) and Dibbin v Johnson (RT 15/41349); Johnson v Dibbin (RT 15/44353) (Two Proceedings). The unsuccessful party in each proceeding appealed to the Appeal Panel of NCAT, however issues were raised concerning NCAT’s jurisdiction to determine proceedings between residents of different States. 

The hearings of the appeals were stood over pending the decision of Burns v Corbett (2017) NSWCA 3 (Burns v Corbett), which also concerned the jurisdiction of NCAT. In Burns v Corbett, the Court held that NCAT could only determine matters between residents of different States if it were a court of a State within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. As a matter of assumption, the Court held that NCAT is not a court of a State. This decision was later affirmed by the High Court of Australia in Burns v Corbett (2018) HCA 15.

Following the Court of Appeal decision in Burns v Corbett, the Appeal Panel in the Two Proceedings determined that NCAT had been exercising judicial power in making the orders sought under the RT Act. It was also held that NCAT was a court of a State within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution. Dilemma.

Issues on appeal

The Attorney General of NSW who was joined as a party to the Two Proceedings sought leave to appeal from the Appeal Panel’s decision. The issues on appeal were:

  • whether the Court has jurisdiction under s 83(1) of the NCAT Act to determine the appeal
  • whether NCAT was exercising judicial power in making an order under s 87 of the RT Act terminating a residential tenancy agreement
  • whether NCAT is a court of a State within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution.

Decision

The Court held that it did have jurisdiction to determine the appeal under s 83(1) of the NCAT Act.

It also held that NCAT was exercising judicial power in making orders under s 87 of the RT Act. In determining whether to terminate a residential tenancy agreement, NCAT must identify whether a contract exists, whether the contract was breached and whether the breach justifies termination. NCAT’s discretion was therefore found to be analogous to that exercised by courts under the general law. 

The Court acknowledged that NCAT shares many features of a court, however held that it is not a court of a State within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution. NCAT is not designated as a court of record and is not composed predominantly of judges. The members of NCAT do not have the necessary degree of independence, impartiality, protection and security of tenure which is required for a body to constitute a court of a State. Furthermore, the Court held that the introduction of Part 3A of the NCAT Act was a clear legislative statement that NCAT was not a court of a State.

Editorial: Christine Jones & Lauren Stables

In the media

Delivering transparency to mercy decisions
The use of an ancient power to pardon offenders for their crimes will be made more transparent. In cases where mercy is granted, the reform will enable the Attorney General to publish a document that summarises mercy petitions (09 November 2018).  More...

Appointments to Administrative Appeals Tribunal
The Government has announced 13 appointments to the Administrative Appeals Tribunal (AAT).All of the appointees have been appointed for a period of between five and seven years and are highly qualified to undertake the important task of conducting merits review of government decisions (05 November 2018).  More...

Federal Court appointment
Mr Paul Anastassiou QC has been appointed as a judge of the Federal Court of Australia and will commence in the Melbourne Registry on 1 February 2019 (02 November 2018).  More...

Review of National Arrangements for the Protection and Management of Identity Information
Law Council representatives at the Roundtable discussed for example the need for: a clearer definition of the problem statement; articulation of the difference between identity and entitlement to transact, receive service of benefit; and issues about reliance on biometric data and in particular the privacy risks (31 October 2018).  More...

Law Council makes submission on human rights and technology
The Law Council has provided the Australian Human Rights Commission with a submission in relation to its consultation on human rights and technology. In its submission, the Law Council considered the potential of various new technologies, including Artificial Intelligence, to both to promote and threaten the protection of human rights (31 October 2018).  More...

Preventing data breaches should be business as usual
The Office of the Australian Information Commissioner has been notified of 245 data breaches affecting personal information between July and September 2018, its latest report shows. Australian Information Commissioner and Privacy Commissioner Angelene Falk said training staff on how to identify and prevent privacy risks needs to be part of business as usual (30 October 2018).  More...

The ABA rejects the recent analysis of Federal Court judges’ productivity
The Australian Bar Association (ABA) is concerned by recent attacks on Federal Court of Australia judges’ productivity which portrays the process of justice in too simplistic terms (30 October 2018).  More...

Extra District Court judges to ease pressure on New South Wales judiciary
Seven extra permanent judges will be appointed to the District Court of New South Wales to ease pressure on the judiciary and help cut through a mounting backlog of cases. Attorney-General Mark Speakman said it was 'unacceptable' victims, witnesses and accused involved in contested trials were waiting an average of 690 days between arrest and sentencing (29 October 2018).  More...

PS ordered to keep child abuse records
The National Archives of Australia (NAA) has issued a directive requiring every Agency in the Australian Public Service to maintain all records relating to child sexual abuse incidents and allegations for at least 45 years (29 October 2018).  More...

New South Wales Custody Statistics quarterly update September 2018
New figures released by the NSW Bureau of Crime Statistics and Research (BOCSAR) show that the NSW prison population is starting to show signs of decline. This drop has been driven by a recent decrease in the number of defendants remanded in custody (that is, prisoners awaiting trial or sentence) (29 October 2018).  More...

Australian content on broadcast, radio and streaming services
ACCAN has made a brief submission to the Senate Inquiry into Australian content on broadcast, radio and streaming services. We highlighted the value of Australian content for people with disability in particular, and outlined that everyone should have access to Australian content (26 October 2018).  More...

In practice and courts

AAT Bulletins 2018
Issue No. 43/2018, 5 November 2018

Reminder: High Court Amendment (Constitutional Writs and Other Matters) Rules 2018
These Rules commenced on 1 November 2018. Click here to download the Amendment. Click here to download the Explanatory Statement.

LCA Opinion Piece - Federal Court deserves a fair hearing
Morry Bailes, President, Law Council of Australia has written an Opinion Piece, published in The Australian Financial Review, regarding the Federal Court of Australia (02 November 2018).  More...

ALRC: Review of the Family Law System: Discussion Paper
The Discussion Paper asks 33 questions and makes 124 proposals for change to the family law system,which focus on support for children in the family law system, improving public understanding of the family law system, accessible and coordinated service delivery, and enhanced oversight of the family law system and its workforce.  More...

Law & Justice Foundation of New South Wales - Research Alert
The Law & Justice Foundation of New South Wales has released a research report titled Data Insights in Civil Justice: NSW Supreme Court (9 November 2018).  More...

Decisions of Interest
The NSW Court of Appeal has just published its latest Decisions of Interest Bulletin on the Court of Appeal website (05 November 2018).  More...

ICAC: Prosecution briefs with the DPP and outcomes
Tables summarising information about briefs that are with the DPP, and prosecution outcomes. Last updated 9 November 2018.  More...

ICAC: Public inquiry into allegations concerning the former Canterbury City Council adjourned
The ICAC Operation Dasha public inquiry into allegations concerning the former Canterbury City Council will resume on Monday 10 December.  More...

Published - articles, papers, reports

Diversity and inclusion
Alison Wrench, Robyne Garrett; Routledge (November 2018)
Curriculum and pedagogical practices for improved educational outcomes, justice and inclusion in Physical Education are central to this chapter.

Data craft: the manipulation of social media metadata
Amelia Acker; Data & Society Research Institute: 05 November 2018
“Data craft” is the term Acker coins for all those “practices that create, rely on, or even play with the proliferation of data on social media by engaging with new computational and algorithmic mechanisms of organisation and classification.”

The children’s report
Freyana Irani, Amy Lamoin, Krista Lee-Jones; Australian Child Rights Taskforce: 1 November 2018
In this integrated report, the views of children and young people across Australia sit in close association with the contributions of 93 non-government organisations (NGOs) and subject matter experts committed to improving the protection, promotion and fulfilment of the rights of all children and young people in Australia.

Notifiable Data Breaches Quarterly Statistics Report: 1 July – 30 September 2018
Office of the Australian Information Commissioner: 30 October 2018
The quarterly statistics report on the Notifiable Data Breaches (NDB) scheme indicates 57 per cent of incidents were caused by malicious or criminal attack, and 37 per cent resulted from human error. 20 per cent of data breaches over the quarter occurred when personal information was sent to the wrong recipient, by email, mail, fax or other means.

New South Wales Custody Statistics: Quarterly Update Sept 2018
Bureau of Crime Statistics and Research released 29 October 2018
The number of adult prisoners in custody has steadily dropped over the last four months to 13,372, its lowest point in six months.

Cases

AB v Judicial Commission of New South Wales (Conduct Division) [2018] NSWCA 264
JUDICIAL REVIEW – review of decision of Judicial Commission Conduct Division to conduct a hearing in public – meaning of “hearing” – relevance of open justice principle – whether criteria in Guidelines promulgated by Judicial Commission create legal obligations – Judicial Officers Act 1986 (NSW), ss 10, 24  JUDICIAL OFFICERS – complaints concerning ability or behaviour of judicial officer – complaints referred to Judicial Commission Conduct Division – decision to conduct hearing – whether hearing should be held in private or in public – relevant criteria  WORDS AND PHRASES – “hearing” – “public interest” – “should consider”.

Kokou v Roads and Maritime Services and Local Court of New South Wales [2018] NSWSC 1692
ADMINISTRATIVE LAW – Judicial Review – Where Roads and Maritime Services (RMS) cancelled plaintiff mechanic’s examiner’s authority to test and check vehicles for registration purposes – Where appeal against RMS decision dismissed by the Local Court – Whether Magistrate denied procedural fairness by making findings adverse to the plaintiff contrary to concessions by the RMS without adequate notice – Whether Magistrate denied procedural fairness by making adverse findings beyond the breaches alleged against the plaintiff in the show cause letter  JURISDICTION – Appeals – Whether privative clause under s 270 of the Road Transport Act 2013 (NSW) has the effect of removing right of appeal from the Local Court to the Supreme Court against Local Court determinations under s 267(1) of the Road Transport Act – Whether s 267(1) matters are properly heard in the General Division of the civil jurisdiction of the Local Court or within the Court’s special jurisdiction.

Attorney General for New South Wales v Gatsby [2018] NSWCA 254
CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order  CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).

Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069
PUBLIC SECTOR – disciplinary appeal – appeal to Supreme Court – appeal allowed remitted to Industrial Relations Commission – orders under s 100D (1)(b)-(c) – whether orders should be made – calculation of what the employee would have received - whether the appellant has a duty to mitigate loss - overarching discretion.

Altmann v Commissioner for Fair Trading [2018] NSWCATOD 178
ADMINISTRATIVE REVIEW – motor mechanic – whether fit and proper person to hold a tradesperson’s certificate - criminal convictions – former member of outlaw motorcycle gang – period of time since convictions – rehabilitation – nature and purpose of role of motor mechanic.

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254
APPEAL – administrative law – access to government information – where residents action group requested access to information in documents relating to the Newcastle 500 Supercars Event – whether Tribunal had erred in providing access to certain information – re-determination on merits – whether there is an overriding public interest against disclosure of information.

Legislation

High Court of Australia (Fees) Amendment Regulations 2018
29/10/2018 - These regulations make consequential amendments to the High Court of Australia (Fees) Regulation 2012 following the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018.

Proclamations commencing Acts
Criminal Procedure Amendment (Pre-trial Disclosure) Act 2018 No 47 (2018-610) — published LW 2 November 2018 - commencing on Friday, 2 November 2018, the Act gives effect to recommendations of the statutory review of the Criminal Procedure Act 1986 with respect to the mandatory pre-trial disclosure by the prosecutor and the accused person of certain evidence and other matters in proceedings for indictable offences.

Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—Amendment No 6) Order 2018 (2018-623) — published LW 9 November 2018
Administrative Arrangements (Administrative Changes—Western City and Aerotropolis Authority) Order 2018 (2018-624) — published LW 9 November 2018
Administrative Arrangements (Administration of Acts—Amendment No 5) Order 2018 (2018-617) — published LW 2 November 2018
Health Records and Information Privacy Amendment (My Health Record) Regulation 2018 (2018-611) — published LW 2 November 2018

Bills assented to
Government Telecommunications Act 2018 No 67 — Assented to 31 October 2018
Statute Law (Miscellaneous Provisions) Act (No 2) 2018 No 68 — Assented to 31 October 2018

For the full text of Bills, and details on the passage of Bills, see Bills

NSW Government Bulletin editor:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Other contacts:
Dispute Resolution, Inquiries and Administrative Law
Greg Wrobel, Partner 
T: +61 2 8083 0411 
E: greg.wrobel@holdingredlich.com

Bede Haines, Special Counsel 
T: +61 2 8083 0447 
E: bede.haines@holdingredlich.com

Workplace Relations & Safety
Michael Selinger, Partner 
T: +61 2 8083 0430 
E: michael.selinger@holdingredlich.com

Privacy & Data Protection
Lyn Nicholson, General Counsel 
T: +61 2 8083 0463 
E: lyn.nicholson@holdingredlich.com

Planning, Property & Environment
Robina Kidd, Partner 
T: +61 2 8083 0454 
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner 
T: +61 2 8083 0462 
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner 
T: +61 2 8083 0461 
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Lindsay McGregor, Partner
T: +61 2 8083 0459 
E: Lindsay.McGregor@holdingredlich.com

Alexander McNutt, Special Counsel 
T: +61 2 8083 0495 
E: Alexander.McNutt@holdingredlich.com

Peter Holt, Special Counsel 
T: +61 2 8083 0421 
E: peter.holt@holdingredlich.com

Construction and Infrastructure (Projects and Procurement)
Scott Alden, Partner 
T: +61 2 8083 0419 
E: scott.alden@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Share this