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NSW Government Bulletin

19 August 2021

#Government

Published by:

Yunsi Feng

NSW Government Bulletin

Why planning ahead is important when dealing with planning proposals

Development and planning decisions by councils are governed by planning legislation and the Local Environment Plan (LEP) for each council’s local government area. Anyone can request amendments to a LEP by submitting a planning proposal request to a council. This is typically instigated by landowners or developers who wish to develop a site in a way that is not permitted by the current LEP (Proponent).

A council that has received a planning proposal request must consider the request in accordance with the Environmental Planning and Assessment Act 1979 (NSW) and any policy it has for planning proposals.

Section 3.32(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and clause 11 of the Environmental Planning and Assessment Regulation 2000 (NSW) (Regulation) allows a council to require:

  • studies to be undertaken and information to be obtained in respect of the land proposed to be affected by the planning proposal
  • the Proponent to pay the council’s costs in undertaking the studies and obtaining the information, including the council’s staffing costs and costs incurred for engaging experts and consultants,

as a condition of the council considering a planning proposal request.

While a council’s process for recovering costs can be set out in a policy or another document published by the council, if this is the only means of attempting to recover costs, this would not contractually bind the Proponent to comply with the council’s requirements.  

For this reason, councils should strongly consider preparing and entering into fee agreements with Proponents to set out each party’s rights and obligations clearly and establish a binding contractual relationship according to the EP&A Act and Regulation.

To ensure consistency across fee agreements entered into with different Proponents, we recommend that councils prepare a template fee agreement that can be subsequently tailored to each Proponent and the particular planning proposal.

A template fee agreement would also be beneficial in:

  • creating transparency in the process. Proponents can be made aware of the anticipated terms and conditions and be assured that other Proponents are subject to similar provisions
  • establishing general good governance practice
  • minimising the council’s exposure to legal risk
  • reducing administrative costs, particularly in the agreement drafting process.

From Holding Redlich’s experience in assisting with Proponent or council negotiations and drafting fee agreements, we have identified five key points that should be comprehensively set out in any template fee agreement:

  1. timing for recovery of costs – we recommend that councils impose a strict fixed timeframe for the payment of costs incurred at identifiable stages of the planning proposal process. This will help councils quickly address non-payment events, rather than having a painful recovery process after substantial costs have been incurred and the planning proposal process is already significantly progressed
  2. restrictions on the Proponent during the planning proposal process – we recommend that councils clearly set out their expectations of Proponents, including any prohibitions on applications. A common prohibition is to prohibit Proponents from attempting to influence decisions with political donations. By explicitly including restrictive provisions in a published templated, this also gives the public assurance that the council is actively addressing issues of public concern
  3. disclosures regarding the outcome of the planning proposal – given a Proponent is required to pay for a council’s costs in considering a planning proposal request, that Proponent may have certain expectations regarding the decisions to be made. We recommend directly addressing this by disclosing in the fee agreement that a council’s decision may not necessarily align with a Proponent’s request or expectations
  4. dispute resolution – it is important for councils to clearly set out a dispute resolution process to avoid uncertainty as to how or when a Proponent will challenge any stage of the planning proposal process
  5. confidentiality – councils should consider the extent of confidentiality obligations they require to be imposed on Proponents (and people engaged by the Proponent) in relation to the council’s decision-making process.

For planning proposal processes, where consistency and transparency are key considerations for dealing with multiple (and often competing) community and landowner interests, a template fee agreement can help councils maintain a focused and streamlined approach.

Authors: Yunsi Feng, Cameron Sheather & Thomas Kwok

In the media

Increased fines, test and isolate payments and new compliance measures as NSW battles Delta
Increased fines of up to $5,000 for COVID breaches, $320 COVID-19 test and isolate support payments, permits to enter regional NSW and a heightened police presence will be introduced, as NSW continues to battle the Delta variant (14 August 2021).  More...

Greater protection and financial support for commercial tenants and landlords impacted by COVID-19
The NSW Government will re-introduce the National Cabinet’s Mandatory Code of Conduct for Commercial Leasing to mandate rent relief for eligible tenants impacted by COVID-19 (13 August 2021).  More...

Government tightens bonus rules after NBN Co gifts staff $78 million
Rules governing bonus payments in the public sector have been tightened by the government after revelations NBN Co handed out almost $78 million to staff last financial year (13 August 2021).  More...

Amendments needed to sexual discrimination bill
The Law Council acknowledges the publication of Senate Education and Employment Legislation Committee’s report on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. However, the Law Council believes that amendments are necessary for the Bill to achieve its stated objectives (12 August 2021).  More...

Simple law reform significantly reduces District Court workload
A simple change to allow certain offences to be prosecuted in the Local Court, rather than requiring them to be heard in the Higher Courts, has reduced the workload of the District Court by over 1,000 matters in 18 months and a significant reduction in the time it takes to finalise these matters (12 August 2021).  More...

Support for legal and domestic violence groups in NSW
More than 70 organisations providing legal advice or domestic violence support have now been awarded $4.45 million in grants to modernise and expand their operations (12 August 2021).  More...

LCA: Government to reinstate measures allowing for virtual meetings and electronic document execution
Steps taken by the Australian Government to reinstate temporary measures that will allow companies to use technology to meet regulatory requirements to hold general meetings, distribute meeting related materials and validly execute documents are positive moves for business and the investing public (11 August 2021).  More...

Continuous disclosure laws pass parliament
The temporary measures that allowed companies and their officers to only be liable for civil penalty proceedings where they acted with “knowledge, recklessness or negligence” are now permanent (11 August 2021).  More...

Privacy Commissioner statement on NSW Department of Education cyber incident
The Privacy Commissioner is aware of the cyber incident affecting the NSW Department of Education and understands that investigations into the breach are continuing and the Department is working closely with Cyber Security NSW (09 August 2021).  More...

Government targets 'pile-on attacks', encrypted comms in new online safety rules
The federal government has laid out the minimum safety expectations that ‘big tech’ companies will need to adhere under its controversial online safety laws to minimise abusive or harmful content online (09 August 2021).  More...

Significant new funding for the justice system to close the gap
Over $25 million in targeted investments will be directed towards reducing the overrepresentation of adult and youth Aboriginal and Torres Strait Islander people in the criminal justice system (targets 10 and 11) (07 August 2021).  More...

Online account takeover bill faces 33 changes to pass parliament
Parliament’s intelligence and security committee has recommended a number of changes to proposed laws that would hand federal authorities unprecedented online account takeover powers (06 August 2021).  More...

National approach to prevent elder abuse needs to be a priority
Committed to tackling elder abuse occurring across the country, a national roundtable convened by the Law Council of Australia, has recommended that the Commonwealth, state and territory Attorneys-General make the development of nationally consistent laws governing enduring powers of attorney a priority (06 August 2021).  More...

PJCIS in agreement with the Law Council
The recently tabled PJCIS Advisory Report on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 has overwhelmingly endorsed the key reforms recommended by the Law Council of Australia. The Committee’s recommendations recognise and agree with the Law Council’s primary concern that the proposed legislative framework does not meet the essential requirements of proportionality (06 August 2021).  More...

Experts call for rethink of COVIDSafe app
A group of technology and privacy experts have backed the ongoing utility of a Bluetooth-based contact tracing app in Australia, but say more needs to be done to make COVIDSafe fit for that purpose (06 August 2021).  More...

Keeping kids safe and well: National Children's Commissioner consulting with children, young people and their families
Keeping kids safe and well – your voices is a national consultation project which will inform the first five-year implementation plan to the National Framework for Protecting Australia’s Children (2009–2020) successor plan. Children and young people had valuable insights to inform policy development, and they had a right to have their views heard (05 August 2021).  More...

In practice and courts

Commencement of the new Federal Circuit and Family Court of Australia
The Family Court of Australia and Federal Circuit Court of Australia has released a full package of details outlining the changes to court operations that will occur on the commencement of the Federal Circuit and Family Court of Australia from 1 September. From September 1, the new court will focus on risk, responsiveness and resolution.

A new website – fcfcoa.gov.au
A new website will be launched for 1 September which has been designed to provide users with simplified access to, and navigation of, court information. The single website will make it easier for the profession, litigants and the public to source specific information about family law, migration and general federal law.

Australian Public Service Commission (APSC): Performance bonus guidance
Principles governing performance bonus use in Commonwealth entities and companies, 13 August 2021. Under the new bonus rules, which will apply from 2021–22, entities will need to exercise “rigour and restraint” and only use bonuses “in limited circumstances, justifiable to the parliament and the public”. View the issued guidance.

Attorney-General appointments

Nomination to the International Court of Justice
11 August 2021 – the independent Australian National Group has nominated professor Hilary Charlesworth AM FASSA for election as a judge of the International Court of Justice.

Appointment to the Federal Circuit Court of Australia
7 August 2021 – Ms Allyson Ladhams has been appointed as a judge of the Federal Circuit Court of Australia.

Reappointment of Australian Information Commissioner and Privacy Commissioner
6 August 2021 – Ms Angelene Falk has been reappointed as Australian Information Commissioner and Privacy Commissioner for a period of three years.

Strengthening Australia’s cyber security regulations and incentives: Discussion paper
Interested stakeholders are invited to provide a submission to the discussion paper, Strengthening Australia’s cyber security regulations and incentives. Submissions on the discussion paper can be made via our submission form before 27 August 2021. Read a quick summary and click here for more information.

ACMA consultation: Consumer vulnerability: Expectations for the telco industry – consultation 27/2021
We want to create a statement of expectations for the telco industry to improve outcomes for vulnerable consumers. Closing date 08 September 2021. Click here for more information.

ACMA consultation: Proposal to amend Do Not Call Register (Access Fees) Determination 2017 – consultation 29/2021
We invite your comments on the Do Not Call Register cost-recovery arrangements. Closing date 20 August 2021. Click here for more information.

Department of Infrastructure, Transport, Regional Development and Communications: Draft Online Safety (Basic Online Safety Expectations) Determination 2021 consultation
We are seeking submissions on an exposure draft of the Online Safety (Basic Online Safety Expectations) Determination 2021. The draft determination sets out the government’s demands for providers that offer a social media service, “relevant electronic service” or “designated internet service”, including the nine principle-based “core expectations” included in the Act. View the consultation and consultation paper. Submissions to the consultation close on 15 October 2021.

Law Council update
The Law Council produces a fortnightly newsletter which highlights the Law Council's important activities and advocacy, along with any relevant media and events stakeholders would be interested in. Read the 10 August 2021 update.

Law Council of Australia submissions

29 July 2021 – Law Council
Use of the term ‘good faith’ in civil penalty and criminal offence provisions in Commonwealth legislation.

21 July 2021 – Law Council
Discussion papers – approach to liability and governance issues.

21 July 2021 – Law Council
A new decision-making framework for property matters in family law.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Issue No. 16/2021, 9 August 2021.

OAIC: Our FOI disclosure log
The information described in our disclosure log has been released by the OAIC under the Freedom of Information Act 1982: Updated 06 August 2021. Read more here.

Legal and Constitutional Affairs Legislation Committee

Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Status: Accepting submissions. Date referred: 17 June 2021. Submissions close: 20 August 2021. Reporting date: 31 December 2021.

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021
Reporting date: 13 August 2021.

Select committee on foreign interference through social media
Select committee on foreign interference through social media to inquire into and report on the risk posed to Australia’s democracy by foreign interference through social media. The committee is to present its final report on or before the second sitting day of May 2022. The closing date for submissions is 31 October 2021. Read more here.

Strengthening Australia’s cyber security regulations and incentives
​​​​
On 13 July 2021, the Australian Government opened consultation on options for regulatory reforms and voluntary incentives to strengthen the cyber security of Australia’s digital economy. Interested stakeholders are invited to provide a submission to the discussion paper, strengthening Australia’s cyber security regulations and incentives. Submissions on the discussion paper can be made via our submission form before 27 August 2021. Click here for more information.

NSW

COVID-19 – increased fines, test and isolate payments and new compliance measures
The NSW Government has announced increased fines of up to $5,000 for COVID breaches, $320 COVID-19 test and isolate support payments, permits to enter regional NSW and a heightened police presence will be introduced, as NSW continues to battle the Delta variant. The full media release is available here.

COVID-19: Information for attending Court – Friday 13 August 2021
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments and includes information regarding the amended Children's Court. Click here for more information.

NCAT update – increased use of video conference hearings
NCAT's consumer and commercial division will be conducting more hearings over video. From 16 August 2021, all tenancy and general matter conciliation and first listings will be held by video or telephone. Parties will have the option to join the video hearing or dial in. Read more here.

Protocols for virtual proceedings
Virtual proceedings are still formal environments and, wherever possible, the usual etiquette and protocols should be observed. The Supreme Court fact sheet on virtual courtrooms includes the following protocols as a guide for practitioners. Read the fact sheet here.

Supreme Court appointments
11/08/2021 – new chief judge at common law appointment.
12/08/2021 – leading Sydney silk to be next NSW DPP.

NSW Court of Appeal publications
The NSW Court of Appeal has published its latest decisions of interest bulletin on the Court of Appeal website. Learn more here.

Costs disputes – uniform law – indexed amounts
Sections 291, 292 and 293 of the Legal Profession Uniform Law (NSW) relate to costs disputes. The amounts have again been indexed for the financial year 1/7/2021 – 30/6/2022. The Legal Profession Uniform Law (Indexed Amounts) Notice 2021 has been published and is available here.

Personal Injury Commission – hearings during COVID-19
The President of the Personal Injury Commission has advised the NSW Bar Association that the PIC will continue to apply Procedural Direction 10 until further notice. Procedural Direction 10 provides that, during the currency of the COVID-19 pandemic and until further notice, the Commission will, list matters for hearing by audio link or audio-visual link. Procedural Direction 10 is available here.

Artificial Intelligence (AI)
The NSW Government believes that the NSW Government can use AI to benefit the community and is taking actions to ensure that AI is used safely, ethically and effectively. We have an AI strategy that outlines our vision for the use of AI, and ensures transparency, fairness and accountability. Have your say to 31 December 2021 here.

Reminder: 2020 Professional Standards Scheme commences
The fourth New South Wales Bar Association Professional Standards Scheme will remain in effect until 30 June 2025. You can learn more about the scheme here.

Published – articles, papers, reports

Advisory report on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020
Parliamentary Joint Committee on Intelligence and Security; handed down on 12 August 2021. Changes include greater oversight of the new powers by both the committee and watchdogs, and a level of assurance the laws will only be used to target the most serious of offences. If passed in its current form, both agencies will be able to take control of a person’s online account to gather evidence about serious offences, as well as to add, copy, delete or alter material. Read more here.

ParentsNext: Examination of Social Security (Parenting payment participation requirements – class of persons) Instrument 2021
Parliamentary Joint Committee on Human Rights’ Inquiry report; released August 2021. The report, makes two recommendations, including that participation in the ParentsNext program be voluntary, rather than compulsory. The Commission said that the compulsory method was flawed and there were less restrictive alternative approaches available, such as incentive based models. Read more here.

Australian Government COVID-19 disaster payments: A quick guide
Michael Klapdor; Parliamentary Library Research Publication: 04 August 2021. This quick guide was updated on 4 August 2021 to reflect changes to the COVID-19 Disaster Payment, and provides background to both COVID-19 disaster payments setting out their eligibility criteria, payment rates, and administration arrangements. Click here to read more.

The second tranche of the Table Offences Reform: Impacts on District and Local Court finalisations, time to finalisation and sentencing outcomes
Clare Ringland; Bureau Brief No. BB156: August 2021. Court processes and delay; evaluation reports; sentencing – court processes and delay, legislative evaluation, sentencing. Read the full report.

The impact of the Early Appropriate Guilty Plea reforms on guilty pleas, time to justice, and District Court finalisations
Ilya Klauzner and Steve Yeong; Crime and Justice Bulletin No. CJB240: August 2021. Court processes and delay; evaluation reports – Court processes and delay, legislative evaluation, District Court. Read the full report.

Early Appropriate Guilty Plea reform program – process evaluation
Lily Trimboli, Crime and Justice Bulletin No. CJB238: August 2021.
Evaluation reports; Court processes and delay – early guilty pleas, process evaluation, charge certification, criminal case conferencing, continuous legal representation, sentencing discounts, court delay. Read the full report.

Cases

EPR v Commissioner of Police [2021] NSWCATAD 237
ADMINISTRATIVE LAW – privacy – NSW Police Force exemption under s27 PPIP Act from IPP 11 – what is an “administrative” function.

Pedraza v Macquarie University [2021] NSWCATAD 233
HUMAN RIGHTS – equal opportunity – whether leave required for complaint to proceed – principles applying to grant of leave.

Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227
ADMINISTRATIVE LAW – where respondent applied for order under s 59 of the Administrative Decisions Review Act 1997 that it not be required to lodge a confidential document – where respondent also applied for non-publication and non-disclosure orders – where it appeared that respondent wanted to rely upon the confidential document but not to disclose it to applicant – whether application for order under s 59 misconceived – where document could reveal a confidential source of information.
EXTENSION OF TIME – where respondent did not conduct an internal review in the four months following the internal review application – where applicant lodged application to Tribunal out of time in absence of internal review report – where respondent did not object to extension of time.

Jinling McDonald v Denehurst Limited (Deregistered) & Ors [2021] NSWDDT 4
STATUTORY INTERPRETATION – whether the Dust Diseases Tribunal of New South Wales has jurisdiction to order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities Investments Commission reinstate the registration of a deregistered corporation – the difference between a “Court” and a “court” under s 58AA of the Corporations Act – operation of ss 10(6) and 10(7) of the Dust Diseases Tribunal Act 1989 (NSW).

FlyBlue Management Pty Ltd v NSW Crown Lands Department [2021] NSWCATAD 226
PROCEDURE – time limits – application under Government Information (Public Access) Act 2009 (NSW) – where application lodged out of time – principles to be applied – whether reasonable excuse for the delay in making the application. Government Information (Information Commissioner) Act 2009; Government Information (Public Access) Act 2009; Civil and Administrative Tribunal Act 2013

Shaw v Secretary, Department of Education [2021] NSWCATAD 224
ADMINISTRATIVE LAW – access to government information – access applications – conclusive presumption – overriding public interest considerations against disclosure – child protection – legal professional privilege – balancing exercise – public interest considerations in favour of disclosure – public interests considerations against disclosure – whether overriding public interest against disclosure.

Legislation

Commonwealth

Bills

Electoral Legislation Amendment (Party Registration Integrity) Bill 2021
HR 12 August 2021 – the Bill amends the registration eligibility requirements for a federal non-Parliamentary party. These amendments increase the minimum membership requirements for registration from 500 to 1500 unique members. The Bill also amends the prohibitions regarding registrable names, abbreviations, and logos. 

Electoral Legislation Amendment (Political Campaigners) Bill 2021
HR 12 August 2021 – the Bill reduces the thresholds for electoral expenditure that can be incurred by an individual or organisation before they are required to register as a political campaigner. The amendments are intended to enhance public confidence in Australia’s political processes by aligning transparency requirements for political actors who seek to influence the outcome of an election to more closely resemble those for political parties, candidates, and members of Australian Parliament.

Ransomware Payments Bill 2021 (No. 2)
HR 12 August 2021 – Bill to establish a mandatory reporting requirement for Commonwealth entities, state or territory agencies, corporations, and partnerships who make ransomware payments in response to a ransomware attack. The Bill will require entities who make a ransomware payment to notify the ACSC of key details of the attack, the attacker, and the payment. 

Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021
HR 12 August 2021 – amends the Criminal Code Act 1995 to extend the operation of the declared areas provisions for a further three years and the control order regime and the preventative detention orders regime for a further 15 months; Intelligence Services Act 2001 to provide that the Parliamentary Joint Committee on Intelligence and Security may review the operation, effectiveness and proportionality of the declared areas provisions prior to their sunset date; Crimes Act 1914 to extend the operation of the stop, search and seizure powers for a further 15 months; and Independent National Security Legislation Monitor Act 2010 to extend the reporting date for the Independent National Security Legislation Monitor’s review of continuing detention orders for high risk terrorist offenders to as soon as practicable after 7 December 2021.

Charter of the United Nations Amendment Bill 2021
HR 11 August 2021 – the Amendment Bill clarifies the process by which CT listings are made and puts beyond doubt any question of the application and enforceability of validly made listings to ensure that Australia’s Part 4 COTUNA counter-terrorism legislative framework is able to operate as intended by Parliament to prevent and respond to the financing of terrorism.

Human Rights (Targeted Sanctions) Bill 2021
Senate 11 August 2021 – the purpose of this Bill is to provide a framework for nominations of persons responsible for serious human rights abuses or serious corruption to the Foreign Minister, requiring a statement as to whether the Australian Government will impose targeted sanctions on those persons. 

Human Rights (Children Born Alive Protection) Bill 2021
HR 09 August 2021 – the Bill seeks to enshrine an offence for health practitioners that contravene the duty to provide medical care or treatment to a child born alive. More explicitly, the Bill codifies the duty and conduct of medical professionals. 

International Human Rights and Corruption (Magnitsky Sanctions) Bill 2021
Senate 03 August 2021 – a Bill for an Act to enable Australia to impose sanctions to promote compliance with international human rights law and respect for human rights or to deter significant corruption, and for related purposes. 

NSW

Regulations and other miscellaneous instruments
Public Health Amendment (COVID-19 Penalty Notice Offences) Regulation (No 2) 2021 (2021–441) – published LW 11 August 2021.
Public Holidays Amendment (COVID-19 Revocations) Order 2021 (2021–440) – published LW 11 August 2021.
Subordinate Legislation (Postponement of Repeal) Order 2021 (2021–450) – published LW 13 August 2021.

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

Published by:

Yunsi Feng

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