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NSW Government Bulletin

24 June 2020

#Government

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NSW Government Bulletin

Former Australian judge faces legal action following sexual harassment claims - lessons for all 

This week the High Court of Australia has been in the news for all the wrong reasons.

Instead of issuing announcements regarding the rights and obligations of Australians, the High Court this week has issued a public apology after an independent inquiry upheld allegations of sexual harassment perpetrated by former High Court judge Dyson Heydon. The claims, brought by a number of Mr Heydon’s former female associates, have been denied by the former judge.

The allegations, made against a person who held one of the highest legal positions in the country, is a stark reminder that harassment and bullying can occur in any workplace. And as the world has learned from the #metoo movement, all too often acts of harassment take place in workplaces where there is a culture of silence or turning a blind eye to victims. For the harassment to end, the unlawful practices need to be called out.

There are important lessons for all organisations to learn from this matter:

  • firstly, no organisation should be complacent and assume that harassment couldn’t happen in their workplace. The reality is the opposite. If you are not convinced, a confidential survey will often reveal evidence of the location and type of harassment in your organisation
  • secondly, having a workplace policy that clearly sets out that harassment is unlawful and will not be tolerated, while critical, is itself not enough. You must ensure that every person in your organisation, in particular those with seniority and who hold powerful positions, are trained in the policy and clearly understand what conduct constitutes harassment. It is no excuse for a person to say that they didn’t intend to upset or offend someone
  • thirdly, and very importantly, there must be a clear avenue available for victims and observers of harassment to be able to raise a complaint to an independent person, either within or outside the organisation, about the unlawful conduct
  • finally, and critically, appropriate action must be taken in response to any such complaint to investigate it promptly, impartially and confidentially and ensure that disciplinary action is taken if warranted.

But all these steps will not result in an improved workplace unless a strong culture of calling out harassment is inspired by the leaders of the organisation. It is only through the support and guidance of leaders that such a culture is encouraged and fostered.

So don’t delay. Review the steps that your agency has in place to deal with harassment. If they are not adequate, then move now to implement change.

Authors: Michael Selinger

In the media

‘We must do more’: Legal profession responds to Dyson Heydon findings
In response to a High Court independent inquiry that found Justice Dyson Heydon had sexually harassed six women, the legal profession has responded with congratulations for the court for its swift action but disappointed that the conduct is still prevalent (23 June 2020).  More...

Government responds to Council rating review
Following extensive consultation with the local government sector and the community, the NSW Government has released its response to IPART’s Review of the Local Government Rating System.  More...

New cyber task force to drive standards
An Australian first collaboration between the NSW Government, AustCyber and Standards Australia has seen the creation of a task force charged with accelerating the adoption of industry standards for cyber security across Australia.  More...

A Housing Strategy for NSW - Discussion Paper
The NSW Government is preparing a NSW Housing Strategy that will equip us to adapt to changing trends and so that we have the right type of housing in the right location, delivering benefits to our communities (15 June 2020).  More...

NSW government was warned over cyber security weaknesses
The NSW government was warned more than six months ago to urgently improve its cyber security in a report that found almost half of its agencies had no recommended strategies in place to prevent attacks.  More...

Postponed elections allow councils to focus on critical issues facing their communities
The official announcement of NSW council elections being pushed to 4 September 2021 brings certainty for local communities and allows councils more time to prepare while dealing with other urgent issues according to Local Government NSW (LGNSW) (12 June 2020).  More...

Court databases may prejudice the innocent; lawyers and privacy experts fear
Concerns have been raised with PM that privately run court databases do not give the full picture of a person's experience with the criminal courts. For example, listing their court appearances but not their acquittal or the dropping of charges. Privacy experts and the Law Council of Australia share those concerns (18 June 2020).  More...

Armidale Regional Council suspended over dysfunction
NSW Local Government Minister Shelley Hancock has suspended Armidale Regional Council for three months after major infighting broke out between several councillors and its chief executive (15 June 2020).  More...

PM facing robodebt royal commission calls
Calls for a royal commission into the robodebt scheme are growing louder but Scott Morrison insists there's no need because it's being fixed (23 June 2020).  More...

Freedom 'of' information, not freedom from it
Two years after the initial announcement, the government has refused the Newcastle Herald's request for documents on the precinct under the Government Information (Public Access) Act - an application made as part of our Your Right To Know campaign (23 June 2020).  More...

Practice and courts

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions, including immigration and citizenship. Issue No. 17/2020 (15 June 2020).  More...

Statement by the Hon Susan Kiefel AC, Chief Justice of the High Court of Australia
NSW Supreme Court Sexual Harassment policy
The Supreme Court has been in the process for a number of months of developing an internal bespoke policy for judges and judicial staff working in judges’ chambers. It is anticipated that the policy will be finalised by the end of next week (23 June 2020).  More...

Supreme Court of New South Wales – Protocol – Court Operations – COVID-19
9 June 2020

Current processes in place to reduce physically attending the courtroom and registry during the coronavirus (COVID-19) pandemic

Reports

IPART review of the Local Government rating system, Government response
The NSW Government understands the need to provide local councils with a flexible rating system, whilst ensuring rates are applied fairly and more equitable to local communities (June 2020).  More...

Discussion paper: A Housing strategy for NSW
The NSW Government is preparing a new state-wide, 20-year Housing Strategy. This Discussion Paper is an important step in refining a vision for housing, developing directions, and identifying actions that can be achieved now and into the future (May 2020).  More...

Cases

Alam v Insurance and Care NSW [2020] NSWCATAD 148
ADMINISTRATIVE LAW – access to government information – decision of the agency that it did not hold the information sought – whether there are reasonable grounds to believe that the requested information exists and held by the agency – whether the search efforts of the agency were reasonable in the circumstances

Application for Crown Employees (Public Sector - Salaries 2020) Award and Other Matters [2020] NSWIRComm 1044
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – discretion of Commission to award increases – whether Commission required to award increases to salaries and salary-related allowances each year – s 146C Industrial Relations Act 1996 (NSW) – cl 6(1)(a) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014

Beadman v NSW State Emergency Service [2020] NSWIRComm 1043
UNFAIR DISMISSAL – applicant dismissed during six month probationary period – whether six month probationary was reasonable

Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777
CONTRACT — breach — parties enter into a Deed which contemplates a re-zoning of defendant’s land so that it is partly zoned industrial and partly zoned conservation — Deed provides for defendant to lodge a development application to subdivide the land into two lots to reflect the zonings — Deed further provides for the defendant to transfer to the Council the conservation lot following approval of the subdivision — defendant lodges development application for subdivision and vegetation clearing — Council issues Notice of Determination consenting to subdivision but rejecting vegetation clearing — defendant appeals to Land and Environment Court — whether defendant by failing to lodge subdivision application breached implied term to do all that is reasonably necessary to secure performance of the Deed — held that Deed does not prevent exercise of rights of appeal — held that defendant not in breach where rights of appeal have not been exhausted — specific performance not granted

Choi v Secretary, Department of Communities and Justice [2020] NSWCATAD 154
ADMINISTRATIVE LAW - freedom of information - review of decision - extension of time - second application to review decision on same issues

Commissioner of Police v Bassi [2020] NSWSC 710
PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether Commissioner of Police notified the organiser that intended public assembly was not opposed – whether an order authorising the assembly should be made

DVI v Children's Guardian [2020] NSWCATAD 150
ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work

ECN v Commissioner of Police [2020] NSWCATAD 153
ADMINISTRATIVE LAW – public access to government information – Request for information by complainant about a complaint under Part 8A of Police Act 1990 alleging police misconduct – Whether prejudice to the supply of confidential information – Whether prejudice to the effective exercise of an agency’s functions – Whether disclosure would reveal a deliberation, consultation, opinion or advice – Whether prejudice an investigation – Whether prejudice the prevention, detection or investigation of a contravention or possible contravention of law – Personal information – balancing public interest considerations

EGN v Public Guardian [2020] NSWCATAD 157
Administrative review – whether the decision of the Public Guardian is the correct and preferable decision - best interests of the subject person – section 4 Guardianship Act 1987

EFR v Commissioner of Police [2020] NSWCATAD 159
ADMINISTRATIVE LAW – privacy – exemption – NSW Police Force - administrative and educative functions

Hawkins v NSW Land and Housing Corporation [2020] NSWCATAP 111
SOCIAL HOUSING – compensation for breach of landlord’s covenant of quiet enjoyment
SOCIAL HOUSING - compensation where retaliatory eviction alleged

Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113
WORKERS’ COMPENSATION – Assessment and amount of compensation – Discontinuation of payments – Construction of (NSW) Workers Compensation Act 1987, s 39 – Whether appellants were entitled to payments during the period between discontinuation and resumption of payments following assessment by an approved medical specialist

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2020] NSWLEC 66
STATUTORY CONSTRUCTION- Valuer General aggregated both assessment parcels pursuant to s 26 of the Valuation of Land Act 1916 - impermissible to review validity of Valuer General’s aggregation pursuant to s 26 of the Valuation of Land Act 1916 - smaller assessment parcel valued pursuant to s 14F(3) of the Valuation of Land Act 1916 - impermissible to review validity of Valuer General’s valuation utilising s 14F(3) - meaning of “valued and rated accordingly” in s 14F(3) - composite expression - the Valuer General’s valuation solely fixes the value of the assessment parcel for rating purposes and does not amount to a declaration as to use for the purposes of categorisation pursuant to the Local Government Act 1993 - the smaller assessment parcel to be categorised for rating purposes in accordance with the regime in Pt 3 of Ch 15 of the Local Government Act 1993

Pederson v Northern NSW Local Health District [2020] NSWSC 741
CIVIL PROCEDURE – medical examinations – r 23.4 Uniform Civil Procedure Rules - whether order should be made for genetic testing – use of epidemiological evidence - whether the defendant should be able to explore possible epidemiological causes of the harm – interests of justice

PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731
CRIME — Appeal and review — Appeal from Children’s Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — where plaintiff charged with offences alleged to have been committed against three complainants — ruling that evidence of each complainant be cross-admissible as tendency evidence — order refusing separate hearings — whether Magistrate gave adequate reasons
EVIDENCE — Tendency evidence — Criminal proceedings — whether Magistrate failed to consider Evidence Act 1995 (NSW) s 101(2)

Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109
APPEAL – whether appeal involved a violation of s 27(2) of the Summary Offences Act 1988 (NSW).
PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether public assembly was authorised – whether Commissioner of Police had communicated non-opposition to notification of a proposed public assembly within the meaning of s 23(1)(f) of the Summary Offences Act – whether amendment of particulars to timely notification amounted to a new notice of intention.

Salsands (NSW) Pty Ltd v Port Stephens Council [2020] NSWLEC 1263
APPEAL – grant of deferred commencement consent – conciliation conference – agreement between the parties – orders

State of New South Wales v Cheney (Preliminary) [2020] NSWSC 703
HIGH RISK OFFENDERS – preliminary hearing – interim orders - s 17 considerations – whether the matters alleged justify making an order - determining whether to grant an interim detention order or an interim supervision order – considerations of likely final order a question for the final hearing

Taouk v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 66
MERITS REVIEW - Building and construction – Home Building Act 1989 (NSW) - contractor licence – fit and proper.

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106
ENVIRONMENT AND PLANNING – planning schemes and instruments – State Environmental Planning Policies – secondary dwellings – site area and minimum lot size – whether minimum lot size requirement overridden – State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW), cl 22; State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW), cl 4.1AC
STATUTORY INTERPRETATION – amendment and repeal – implied repeal – harmonious construction – conflict between State Environmental Planning Policies – whether capable of harmonious construction – requirement for actual contrariety
STATUTORY INTERPRETATION – amendment and repeal – implied repeal – clauses in separate instruments each purporting to control inconsistency by prevailing over the other – effect of each clause

Legislation

NSW

Regulations
Local Court (Amendment No 11) Rule 2020 (2020-256) — published LW 12 June 2020

Bills introduced 

Privacy and Personal Information Protection Amendment (Service Providers) Bill 2020
Introduced LA 18 June 2020

Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020
Introduced LA 16 June 2020

Bills passed by both Houses of Parliament
Crimes Amendment (Special Care Offences) Bill 2020
Law Enforcement Conduct Commission Amendment Bill 2020

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.

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