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NSW Government Bulletin

02 April 2019

#Government

NSW Government Bulletin

Online access to development application plans still a source of frustration

Amendments to the Environmental Planning and Assessment Act 1979 (the EP&A Act) in 2012 were designed to facilitate online access to plans and other information that form part of development consents.

Those changes extended the application of the express statutory licence to use that copyright material for the purposes of the Act.

This editorial examines the decision of the Civil and Administrative Tribunal of New South Wales (the Tribunal) in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 (Sandy v KMC). 

In Sandy v KMC the Tribunal was required to determine whether the Copyright Act 1968 (Cth) (the Copyright Act) still prevented the Council from reproducing surveys and plans in responding to an application under Government Information (Public Access) Act 2009 (the GIPA Act).

Background

The applicant applied for access to information held by the respondent Council relating to a development application for an abattoir adjacent to the applicant’s property.

The respondent’s decision included to provide “view only” access to copyright protected (including surveys, stormwater drainage plans, and building plans) documents.

The applicant sought administrative review by the Tribunal. The purpose of the applicant’s request to access the plans was for the purpose of obtaining legal advice as to the prospects of commencing class 4 proceedings in respect of the proposed abattoir. The applicant argued this was not practicable without copies of the plans.

Would there be an infringement if the copy access was allowed?

After concluding that the information was an original literary and artistic work and subject to copyright protection, the Tribunal noted that any action by the Council in reproducing or copying the work (including providing copying facilities or authorising the applicant to make copies) would infringe the copyright, unless an exception applied.

The applicant argued that it was necessary for a licence to be implied because in order for an application to be processed, third parties would need to reproduce the works. The applicant relied on section 10.14 of the EP&A Act which enables a licence to be given for the purposes of that Act. The Tribunal found this did not enable a licence for the GIPA Act. The applicant also sought to rely on section 83 of the Local Government Act 1993 which provides that on submission for approval one copy becomes property of the Council. The Tribunal found that section 83 did not purport to assign copyright and so did not assist.

As to the exceptions relied on by the applicant:

  • section 41 (fair dealing for the purpose of criticism or review) did not assist the applicant as obtaining legal advice does not involve commenting on the quality or merit of the work. Further, it is Council’s purpose in copying the documents to fulfil its obligations under the GIPA Act which is relevant, not the applicant’s purpose in using the documents
  • section 43(1) (reproduction for the purpose of judicial proceedings) did not assist the applicant as there was no judicial proceeding on foot
  • section 43(2) (fair dealing for the purpose of giving professional advice by a legal practitioner) also did not assist the applicant, having regard to authority which established this section did not provide an exception for seeking legal advice.

Accordingly the decision under review was affirmed.

Conclusions

Accessing copyright material that forms parts of development applications, other than on the basis of having to attend the Council and view the material, remains a source of frustration for both applicants and council who want to make that information available online.

Even with the extension of the express statutory licence to cover more planning material in 2012, given that the bulk of access to planning material is accessed by relying on the GIPA Act, and it is clear that the indemnity only applies to the use of documents for the EP&A Act, in a practical sense those changes have not overcome the problem.

The permanent solution to this problem relies on either changes to the Copyright Act 1968 (Cth) to create a fair use exception relating to public administration, or for the State government to enter into an agreement on behalf of Councils with the Copyright Agency Limited.

Architects and others have consistently said that the cost of any royalty would be low, somewhere in the order of 20 cents per application. 

It's a relatively small price to pay to facilitate online access to this important planning information.

Editorial: Peter Holt & Jeffrey Shi 

  • Our experts have prepared an analysis of the recent NSW state election. Click here to read our wrap-up.

In the media

What good local government integrity frameworks look like
A new research report released by IBAC, the state's anti-corruption commission, identifies a sample of councils that have built solid integrity frameworks to help protect them from corruption, providing a model for other councils to follow (28 March 2019). The full report and summary version are available on IBAC's website. More...

Legal Assistance Reviews
The Australian Government has released two reports on legal assistance: the review of the National Partnership Agreement on Legal Assistance Services 2015-20 (NPA) and the review of the Indigenous Legal Assistance Program (ILAP). Both reviews were conducted to independently assess the effectiveness, efficiency and appropriateness of the current NPA and ILAP in achieving their objectives and outcomes (28 March 2019). More...

AMA calls for age of criminal responsibility to be raised to 14 years of age.
The new policy was passed at the AMA Federal Council meeting in Canberra. The age of criminal responsibility is the age at which a child is considered capable of being dealt with by the criminal justice system. Currently, children aged 10 can be charged, prosecuted, and imprisoned (25 March 2019). More...

OAIC welcomes increased enforcement powers to keep Australians’ personal information safe online
The proposed changes to the Privacy Act, along with new rules for digital platforms that trade in personal information, are an important step in meeting community expectations that personal information will handled in a way that is transparent and accountable (24 March 2019). More...

Tougher penalties to keep Australians safe online
Attorney-General, Christian Porter and Minister for Communications and the Arts, Mitch Fifield, announced the new penalty regime under the Privacy Act and other measures to ensure Australians were protected online and that major social media companies took action to protect the personal information they collect about Australians, particularly children (24 March 2019). More...

Commission welcomes National Plan on elder abuse
Age Discrimination Commissioner Dr Kay Patterson this week participated in the launch of the Federal Government’s National Plan to Respond to the Abuse of Older Australians (2019-2023) (22 March 2019). More...

In practice and courts

New ICAC website coming soon
The ICAC is pleased to advise that it plans to launch a new website later this week. The changeover to the new website means that from between 29 March and Saturday 30 March, there will be no website access.. Our website address will remain the same – www.icac.nsw.gov.au (26 March 2019).

Public Consultation: Review of Model Defamation Provisions
The Defamation Working Party is seeking feedback on defamation law in Australia, to assess how the legal principles apply in the digital age and identify areas for national reform. Submissions close on 30 April 2019. More...

NSW LRC: Open Justice Review - Court and tribunal information: access, disclosure and publication
The Attorney General has asked us to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals. See the terms of reference. The deadline for preliminary submissions is 31 May 2019. Information about making a submission can be found on our website here

Published – articles, papers, reports

Bias crime policing: 'The Graveyard Shift
Gail Mason, Leslie Moran; International Journal for Crime, Justice and Social Democracy: 22 March 2019
Bias crime is crime that is motivated by prejudice or bias towards an attribute of the victim, such as race, religion or sexuality. Police have been criticised for failing to take bias crime seriously, and there is a pressing need to understand the reasons for this failure. This article presents the results of the first empirical study of bias crime policing in New South Wales. More...

Where is your data going?
Quinn Grundy et al; University of Sydney: 22 March 2019
Researchers are calling for greater regulation and transparency as analysis of medicines-related apps found most directly shared user data - including sensitive health data - with third parties, posing an unprecedented privacy risk. More...

Data sharing practices of medicines related apps and the mobile ecosystem: traffic, content, and network analysis
Quinn Grundy, Kellia Chui, Fabian Held, Andrea Continella, Lisa A. Bero, Ralph Holz; BMJ: 21 March 2019
Researchers call for greater regulation and transparency as analysis of medicines-related apps found most directly shared user data - including sensitive health data - with third parties, posing an unprecedented privacy risk. More...

Independent review of the APS: priorities for change
Department of the Prime Minister and Cabinet (Australia): 19 March 2019
This report reflects what the Australian Public Service (APS) Review Panel has learned from their initial investigations and what changes the panel believes are needed to build an APS that is fit for the future. More...

Best practice guide to applying data sharing principles
Department of the Prime Minister and Cabinet (Australia): 19 March 2019
The Australian government holds vast amounts of public sector data that it collects from individuals and businesses, or generates through administrative functions of government agencies. This guide has been written to assist agencies holding Australian government data (data custodians) to safely and effectively share the data they are responsible for by using five data sharing principles (the Principles). More...

Cases

Hillyer v Rural Fire Service [2019] NSWCATAD 52
ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA – consultation – whether consultation required-sufficiency of evidence to establish factors against disclosure - weight to apply significantly to factors against disclosure.

Sandy v Kiama Municipal Council [2019] NSWCATAD 49
ADMINISTRATIVE LAW – government information – form of access – whether reproducing information would infringe copyright.

Kate Singleton Pty Ltd and SJ Connelly CPP Pty Ltd t/as Planners North v Department of Planning and Environment [2019] NSWCATAD 50
ADMINISTRATIVE LAW – administrative review - government information – personal information – no issue of principle. 

Miskelly v Secretary, Department of Education [2019] NSWCATAD 48
ADMINISTRATIVE LAW- freedom of information- government information public access-public interest considerations- Government Information (Public Access) Act 2009 (NSW).

Bailey v Ku-ring-gai Council [2019] NSWLEC 35
JUDICIAL REVIEW – planning proposal to make local environmental plan – amendment to plan to remove properties as listed heritage items – variation of planning proposal to retain and not remove a listed heritage item – whether denial of procedural fairness – whether failure to consider relevant matter – whether manifest unreasonableness.

Webb v Port Stephens Council [2019] NSWCATAD 47
ADMINISTRATIVE LAW- freedom of information- government information public access-public interest considerations-open access information s6 Government Information (Public Access) Act 2009 (NSW).

Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45
ADMINISTRATIVE LAW- Education and Care Services National Law – review of a decision to refuse to cancel a prohibition notice under section 182 National Law – Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold the decision or substitute a decision – correct and preferable decision is to confirm the decision of the Regulatory Authority.

Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49
JUDGMENTS AND ORDERS – Court of Appeal – Judges of Appeal – Appointment, tenure and remuneration – Whether Court of Appeal invalidly constituted so as to invalidate orders – Whether s 72 Commonwealth Constitution governs the maximum permissible age of judges of State Supreme Courts.

Legislation

Crimes (Biological Weapons) Regulations 2019
29/03/2019 - These regulations set out the procedures and requirements to be followed in relation to the notification, storage, labelling and disposal of biological agents, toxins and weapons. The regulations also enable a person charged with an offence under the Crimes (Biological Weapons) Act 1976 in respect of a biological agent or toxin to seek an independent analysis of a sample of the substance.

Fair Work Amendment (Modernising Right of Entry) Regulations 2019
25/03/2019 - These regulations amend the Fair Work Regulations 2009 to modernise the form of entry permits by giving the Fair Work Commission the discretion to determine the precise form of entry permits subject to certain requirements, and by amending the prescribed form for entry notices and exemption certificates to include additional information.

Electronic Transactions Amendment (Electoral Nominations) Regulations 2019
25/03/2019 - These regulations amend the Electronic Transactions Regulations 2000 by removing item 25(b) of Schedule 1 to ensure that electoral candidates seeking to nominate for Commonwealth elections are able to lodge their nominations electronically. 

User Rights Amendment (Charter of Aged Care Rights) Principles 2019
22/03/2019 - This instrument amends the User Rights Principles 2014 and the Records Principles 2014 to introduce a single 'Charter of Aged Care Rights' and vary the responsibilities of approved providers to be consistent with the Charter.

Freedom of Information (Charges) Regulations 2019
22/03/2019 - These regulations remake the Freedom of Information (Charges) Regulations 1982 (scheduled to sunset on 1 April 2019) with the same effect to ensure their continued operation. Minor amendments have been made to ensure fitness for purpose and consistency with current drafting practices, update various provisions to reflect the current terms of the Freedom of Information Act 1982 and remove obsolete or unnecessary provisions. These regulations do not introduce new charges or increase charges from the previous rates.

Privacy (Disclosure of Homicide Data) Public Interest Determination 2019
20/03/2019 - This determination applies to the disclosure of certain information by the Australian Federal Police to the Australian Institute of Criminology for the purpose of the Australian Institute of Criminology's research under the National Homicide Monitoring Program and the publication of aggregate findings.

Administrative Arrangements (Administration of Acts—General) Order 2019 under the Constitution Act 1902
02/04/2019 - xxx 

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, Partner 
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.

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