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NSW Government Bulletin

16 March 2022

#Government, #Planning, Environment & Sustainability

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NSW Government Bulletin

Returning to ‘normal’: Three key updates for NSW

With stay at home orders and isolation rules relaxed and NSW emerging from the COVID-19 malaise, the various CBDs of Sydney and Greater Sydney are showing signs of a return to ‘normal’ city life. At the same time, various government departments are also adapting to a ‘new’ normal as the NSW Government works through machinery of government (MOG) changes affecting various agencies in the wake of the Cabinet reshuffle at the end of 2021.

Delegation and MOG changes

Amidst the current changes, it is good for agencies to keep an eye on their various governance structures, including delegation and authorisation frameworks. Acting without a valid delegation is an ‘Achilles heel’ that can bring down administrative decisions. Towards the end of last year, a case in the Land and Environment Court in South East Forest Rescue Inc v Allied Natural Wood Exports Pty Ltd and Anor [2021] NSWLEC 89 showed the direct consequences on the validity of an administrative decision where the person purporting to make a decision did not have delegation to do so. In this time of change, for those who have been ‘mogged’ already and those who are awaiting their ‘MOG’ to occur, it is a good time to pull out instruments of delegation to see if they need to change for new structures, new roles, and new functions.

New environmental planning and assessment regulation

On the theme of changes, with infrastructure, development and housing standing as perennial themes in the post-COVID economy, a robust and efficient planning system is of supreme importance to the State. In this regard, March saw the commencement of the Environmental Planning and Assessment Regulation 2021 (NSW) (2021 Regulation). A big cultural shift is at play – at least for lawyers – with provisions in the 2021 Regulations now being referred to as ‘sections’ instead of ‘clauses’. This change will undoubtedly move through the statute books as regulations and instruments are refreshed and renamed.

Importantly, for any government agency which has duties of environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979, the term ‘Review of Environmental Factors’ (REF) is now formalised as a statutory term, with the 2021 Regulation including new provisions allowing the Planning Secretary to prescribe guidelines for the form of a REF. Without prescribed guidelines, the environmental factors to be considered in a REF have been expanded under the 2021 Regulation to include “any other relevant environmental factors” in addition to the factors carried over from the 2000 Regulation (section 171(2)(r) of the 2021 Regulation).  

More substantively, there are new ‘approved form’ requirements for development applications, modification applications and complying development certificates which can be said to be aimed at providing more information ‘on the papers’ for greater transparency and efficiency of decision making. Keeping pace with online lodgement systems, the assessment period for development and modification applications will now commence on the day the application is lodged (with payment) on the NSW planning portal rather than two days after the date of lodgement. Further, the 2021 Regulation clarifies that a consent authority can reject a modification application for the same reasons that a consent authority can reject a development application, and that provision for the withdrawal of development applications also apply to modification applications.

Consolidation of State Environmental Planning Policies

Additionally, March saw the rationalisation of various State Environmental Planning Policies under the ‘umbrella’ State Environmental Planning Policies (SEPPs) to rationalise the number of SEPPs on the statute books. The new consolidated SEPPs relate to ‘Planning Systems’, ‘Biodiversity and Conservation’, ‘Resilience and Hazards’, ‘Transport and Infrastructure’,  ‘Industry and Employment’, ‘Resources and Energy’, ‘Primary Production’ and three SEPPs relating to the Eastern Harbour City, Central River City and Western Parkland City. Within those SEPPs are ‘familiar friends’, the former SEPPs that stood alone before the consolidation.

With the consolidation, government and private developers should be careful to read the SEPPs afresh, given the duplication of certain terms and the inclusion of multiple dictionaries in some SEPPs, amongst other things, so that those ‘familiar friends’ do not become “faux amis” – false friends – which might trip us up during the task of statutory interpretation.

Author: Thomas Kwok

In the media

COVID-19 close contact quarantine rules to be relaxed after national cabinet decision
National cabinet agrees to transition away from doing PCR tests for people who only have mild respiratory symptoms or illness. If the AHPPC agrees with the plan, people who do have mild symptoms will be encouraged to voluntarily self-isolate (11 March 2022).  More…

Public inquiry into corruption allegation concerning former RMS employees resumes 21 March
Operation Paragon is examining an allegation that, between 2009 and June 2019, Mr Dubois and Mr Steyn partially and/or dishonestly exercised their official functions by awarding in excess of $41 million in RMS contracts, to companies with which they were associated, in exchange for receiving benefits (11 March 2022).  More…

New measures for the Skilled-Recognised Graduate visa, Training visa and COVID-19 Pandemic Event visa
Eligible visa holders who were outside of Australia at any time between 1 February 2020 and 14 December 2021 while holding a Skilled-Recognised Graduate visa will have their visa extended until April 2024. This allows eligible visa holders an extra six months to travel to or remain in Australia (7 March 2022).  More…

Mal Lanyon appointed Northern NSW flood recovery coordinator
The decision to make the appointment to substantially boost the state’s flood recovery coordination was made after the Premier, Deputy Premier and Minister for Emergency Services and Resilience spent much of the last week visiting Northern Rivers communities, gaining first-hand experience of the scale and size of the recovery effort required (8 March 2022).  More…

COVID lease protections extended for small business tenants
Small businesses doing it tough due to COVID-19 are set to benefit from further NSW Government support following a decision to extend mediation protections under the commercial leasing regulation until 30 June 2022 (7 March 2022).  More…

Media release – Australian Information Commissioner approves variation to the Privacy (Credit Reporting) Code 2014
On 10 March 2022 The Australian Information Commissioner approved an application to vary the Privacy (Credit Reporting) Code 2014. The approval of this variation application follows significant engagement with key consumer representatives, members of industry and government and between ARCA and Office of the Australian Information Commissioner (10 March 2022).  More…

Policy to improve equity in legal profession achieves key target
“The Law Council of Australia launched the Equitable Briefing Policy in 2016 and a key target was to have women barristers briefed in at least 30 per cent of all matters by 1 July 2020. Data released shows this objective has been achieved, with 31 per cent of briefs going to women barristers as at the end of the 2019–2020 financial year,” Law Council of Australia President, Mr Tass Liveris revealed (7 March 2022).  More…

NSW Treasury, Department of Customer Service to merge cyber security teams
NSW Treasury will merge its cyber security team with that of the Department of Customer Service (DCS), in a bid to ensure the central agency benefits from upgrades being delivered by DCS. Last year, a parliamentary inquiry recommended that Cyber Security NSW move from DCS to Treasury to give it greater clout, which the NSW government later rejected (10 March 2022).  More…

NSW Electoral Commission gets $4.8m to secure IT systems
The NSW Electoral Commission has secured $4.8 million to perform the most urgent cyber security upgrades to the state's electoral systems, after its last three proposals for funding were knocked back (10 March 2022).  More…

Watchdog pack to tackle digital platforms
Australia’s online, privacy, media, competition and consumer regulators have formed an alliance to share information and collaborate on how to best keep digital platform companies in check, amid growing government interventions (11 March 2022).  More…

PM and Albo emphasise cybersecurity as a matter of national security
Prime Minister Scott Morrison has unveiled plans to expand the defence force by 30 per cent with a specific focus on cyber positions, while Opposition Leader Anthony Albanese has also pledged to increase defence spending and will prioritise cybersecurity with a dedicated minister (10 March 2022).  More…

In practice and courts

Commonwealth

AAT Bulletin Issue No. 5/2022 – 7 March 2022
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. Read more here.

Investigations into Commissioner of Taxation’s General Power of Administration (GPA) and Remedial Power (CRP)
The Taxation Committee of the Business Law Section of the Law Council of Australia provided a public submission in respect of both the investigations into the GPA and CRP. Read more here.

Appointment to the Federal Court of Australia
Justice McEvoy has been appointed to the Victorian Registry to replace the Hon Justice Jennifer Davies following her retirement on 1 April 2022. Justice McEvoy has been a Judge of the Federal Circuit and Family Court of Australia (Division 1) (formerly the Family Court of Australia) since 2019 and a Deputy President of the Administrative Appeals Tribunal since 2020. Read more here.

NSW
Supreme Court of NSW Court of Appeal Decisions Reserved as at 11 March 2022. Read more here.

Published – articles, papers, reports

Overseas Students Ombudsman quarterly update: 1 October – 31 December 2021
When delivering education products and services for overseas students, education providers are responsible for treating students fairly and reasonably and acting consistently with relevant legislation and national standard. During the period from 1 October to 31 December 2021, the Office finalised 46 complaint investigations, covering 66 issues. Read more here.

Guidance for complaint handlers on dealing with risks of harm – Better Practice Guide
Complaint handlers may potentially find themselves dealing with someone who is considering self-harm, suicide, or harming someone else. These guidelines provide practical suggestions to give complaint handlers confidence in dealing with these situations and advice on processing the event afterwards. Read more here.

DP-REG joint public statement
To support a streamlined and cohesive approach to the regulation of digital platforms, the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Office of the Australian Information Commissioner, and the Office of the eSafety Commissioner together formed the Digital Platform Regulators Forum (DP-REG). DP-REG has developed a terms of reference document that further outlines the purpose and goals of the group. Read more here.

Cases

Commonwealth

Campbell v Northern Territory of Australia [2022] FCAFC 37
STATUTORY INTERPRETATION – whether limitation on isolating detainee in cell under Youth Justice Regulations 2006 (NT) applied to detainee transferred to a prison under Youth Justice Act 2005 (NT) – application of statutory limitations period to commence proceedings for acts or omissions of officials – appeal dismissed.
PRACTICE AND PROCEDURE – application for leave to file notice of contention – whether appellant precluded from instituting appeal by virtue of releases in deed of settlement – doctrine of merger – leave to file notice of contention refused.

NSW

Frankcom v Commissioner of Corrective Services [2022] NSWSC 225
ADMINISTRATIVE LAW – ground of review other than procedural fairness – error of law – statutory construction – construction of s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW) – construction of “risk to public health” – whether duty to accord procedural fairness – whether duty to receive submissions – whether duty to complete statutory task once statutory task embarked upon.
ADMINISTRATIVE LAW – antecedent and substantive decisions in relation to exercising power under s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW) – whether reasonable basis for antecedent decision – whether impermissible gloss or gateway imposed in relation to substantive decision.

Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263
EMPLOYMENT AND INDUSTRIAL LAW – industrial disputes – industrial action – dispute orders – Industrial Relations Act (1996) (NSW) (the Act) – statutory scheme – statutory interpretation – objects of the Act – maximum penalty – construction of s 139(4) of the Act – industrial organisation – history of the industrial organisation – Federation registered as industrial organisation – whether different legal species of organisation than its predecessor – validity of dispute orders – whether validity of dispute orders can be the subject of collateral attack in enforcement proceedings – whether dispute orders required the Federation to do something it cannot do – procedural fairness – notice of members of Federation – members not notified of the dispute orders – whether dispute orders were manifestly ambiguous and unclear – contravention of dispute orders – whether multiple separate contraventions of dispute orders – whether dispute orders imposed separate and distinct obligations on the industrial organisation – single course of conduct – assessment of penalty – sentencing principles – prior contraventions as a factor in sentencing – principle of totality – objective factors – nature and extent of contravening conduct – seriousness of conduct – deliberateness of conduct – loss and damage caused – circumstances of contravention – previous breach of dispute orders – general deterrence – specific deterrence – subjective factors – orders.

McGufficke v Commissioner for Fair Trading [2022] NSWCATAD 84
ADMINISTRATIVE LAW – Owner Building Permit – s32(1A) Home Building Act – special circumstances – dual occupancy.

EEH v Insurance & Care NSW [2022] NSWCATAD 82
ADMINISTRATIVE LAW – administrative review of conduct under the Privacy and Personal Information Protection Act 1998 – access to personal information and health information – scope of conduct the subject of review – excessive delay – factors relevant to determining information provided with excessive delay – whether exception applies.

Legislation

Commonwealth

Acts compilation

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003
11 March 2022 – Act No. 117 of 2003 as amended.

Insurance Act 1973
11 March 2022 – Act No. 76 of 1973 as amended.

Income Tax Assessment Act 1936
10 March 2022 – No 27. of 1936 as amended.

Federal Circuit and Family Court of Australia Act 2021
10 March 2022 – No. 12 of 2021 as amended.

Superannuation (Unclaimed Money and Lost Members) Act 1999
9 March 2022 – No. 127 of 1999 as amended.

Life Insurance Act 1995
9 March 2022 – No. 4 of 1995 as amended.

Superannuation Act 1976
9 March 2022 – No. 31 of 1976 as amended.

National Consumer Credit Protection Act 2009
9 March 2022 – No. 134 of 2009 as amended.

Australian Defence Force Superannuation Act 2015
8 March 2022 – No. 119 of 2015 as amended.

Family Law Act 1975
8 March 2022 – No. 53 of 1975 as amended.

Veterans’ Entitlements Act 1986
8 March 2022 – No. 27 of 1986 as amended.

Social Security (Administration) Act 1999
8 March 2022 – No. 191 of 1999 as amended.

Superannuation Guarantee (Administration) Act 1992
8 March 2022 – No. 111 of 1992 as amended.

Superannuation Industry (Supervision) Act 1993
8 March 2022 – No. 78 of 1993 as amended.

Income Tax Rates Act 1986
7 March 2022 – No. 107 of 1986 as amended.

Taxation Administration Act 1953
7 March 2022 – No. 1 of 1953 as amended.

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009
7 March 2022 – No. 135 of 2009 as amended.

Members of Parliament (Staff) Act 1984
3 March 2022 – No. 64 of 1984 as amended.

Bankruptcy Act 1966
3 March 2022 – No. 33 of 1966 as amended.

Foreign Acquisitions and Takeovers Act 1975
3 March 2022 – No. 92 of 1975 as amended.

Disability Discrimination Act 1992
3 March 2022 – No. 135 of 1992 as amended.

NSW

Regulations
Fair Trading Amendment (Commercial Agents) Regulation 2022 (2022–65) – LW 4 March 2022.
Legal Profession Uniform Conduct (Barristers) Amendment Rule 2022 (2022–76) – LW 4 March 2022.
Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2022 (2022–66) – LW 4 March 2022.

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 article is accurate at the date it is received or that it will continue to be accurate in the future.

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