As the ash rained down around NSW in the latter part of 2019 and the first months of 2020, those not directly impacted by the fires were pulling construction contracts out to ask whether poor air quality was a ‘force majeure’. As discussions swirled around whether more thought was needed around climate change-driven risks to projects, a new peril was emerging. The world was changing, but our contracts were not.
In the early months of 2020, COVID-19 was, for the most part, considered to be a global supply chain problem. Contractors who considered themselves exposed might ask for an extension of time for such impacts.
By April, project owners and contractors were grappling with the removal of the limitation on working days under development consent conditions to facilitate COVID-safe working conditions by enabling work to potentially be spread across all seven days of the week. Depending on how work hours and days were mandated in the contract, the result was different. As it was, labour rates meant that not many took advantage of the potential for site work on Sundays.
COVID-safe working and proximity to a state border (where contractors got an early taste of labour supply problems as their workers couldn’t get to the site) caused delays not anticipated in contracts entered into before April 2020. So at the same time that the insurance industry was grappling with what the pandemic meant under their contracts and the situation deteriorated in Victoria, project participants were considering how these sorts of issues should be addressed.
What was treated as a supply chain risk in early 2020 became recognised as a whole of project risk. However, the approaches to ameliorate or allocate the risk varied significantly. Everything from an extension of time without cost to an extension of time with cost to a full COVID-impact protocol emerged as options. However, project owners were in the main reluctant to wholly accept delay costs arising from COVID-19.
When our turn came in NSW a few months ago, clauses we all thought or at least hoped would never be needed were dusted off. Contracts with the least generous regimes were tested as contractors sought to characterise the industry shutdown in Greater Sydney as a “delay by an authority” or a “change in law” potentially entitling them to payment not contemplated at the time of entering the contract.
It didn’t stop once the industry reopened. Parties on projects in Greater Sydney were left to grapple with the impact of a labour supply problem causing delays to the works. This impact was difficult to assess and, depending on how COVID-19 had been catered for in the contract, the entitlements were not always clear. From a contract administration perspective, it was almost easier to have a project located in an LGA of concern and have it shut down completely for a longer period than to have a project technically able to operate but not the people to actually attend each day.
Reflecting on the many COVID-impacted projects we advised on in the past four months, the contracts where COVID-19 was shoe-horned into the existing contract frameworks (for example, as a qualifying cause) or not at all, presented a new difficulty as contractors who were severely exposed pushed boundaries in making claims, creating a lot of work as well as a lot of ill-feeling.
Furthermore, as the majority of the industry operates on traditional adversarial contracts that leave it entirely to the contractor to solve problems of program and completion (for example, the Australian Standard suite and GC21), it was difficult to open a dialogue on how the impact could be ameliorated. As a result, many project owners found themselves frustrated, with their stakeholders asking questions but having no ability to be involved in any solutions on site.
Questions are often asked if we can contract for projects in a better way. The ugly reality of the pervasive adversarial contracting models showed itself well and truly in recent months as anxious project owners were faced with inflexible consequences and shut out of solutions. Those who had treated COVID-19 as a new and unique risk with a collaborative model for managing the risk had a better experience. This begs the question – was it just the novelty of the situation that meant that collaboration worked so well, or is this a sign that a collaborative model is better all around?
Assuming, as an industry, we are not all ready to dive into the cold water and embrace true collaborative contracting (and judging by the Australian Z-clauses floating around on NEC – we are not), in light of recent experience with COVID-19, the question should be asked whether jamming emerging risks into existing contract frameworks is the best approach. For example, it is likely that climate change driven impacts will cause loss, which the standard approach to inclement weather will not be sufficient to address if parties remain wedded to the adversarial model.
We have seen how quickly the world can change and applying contracts drafted in a world that no longer exists is rarely “best for project”. Reflecting upon the past two years, it is clear that a more collaborative approach alleviates imbalance, facilitates a more nimble approach and improves project outcomes all around.
Author: Helena Golovanoff
Promoting privacy and information access rights through the pandemic
The work of the OAIC to uphold privacy and information access rights and strengthen online privacy protections is highlighted in its 2020–21 annual report (21 October 2021). More...
OAIC publishes annual report on digital health
The independent privacy regulator for the My Health Record system and Healthcare Identifiers Service has detailed its compliance and monitoring activity in its 2020–21 digital health annual report. The annual report highlights the OAIC’s work to ensure privacy measures for Australia’s digital health systems are upheld (21 October 2021). More...
NSW government told to polish data sharing laws
The NSW government must strengthen data sharing laws to make them easier for agencies to navigate, enabling the creation of “high value” datasets, a review has found. The review of the Data Sharing (Government Sector) Act 2015, tabled in state parliament, found that amendments were needed to maximise use of the legislation as a tool for data sharing (20 October 2021). More...
Investigation into Eddie Obeid and family
The NSW Crime Commissioner, Michael Barnes, committed the agency to revisiting its previous investigation into the confiscation of the proceeds of crime acquired by Eddie Obeid and his family (20 October 2021). More...
Common sense consent reforms closer to becoming NSW law
Common sense reforms to make sexual consent laws easier to follow and ensure more effective prosecutions of sexual offences will be introduced to NSW Parliament (20 October 2021). More...
Sentencing Council review to face frauds
The Department of Communities and Justice’s NSW Sentencing Council has launched its independent review into sentencing for fraud and fraud-related offences. Mr Speakman said that each year more than 15,000 fraud and fraud-related offences went through NSW courts and there were more than 100 separate offence types (19 October 2021). More...
ICAC finds former TAFE Western Sydney Institute managers corrupt over payments solicited and received for software deal
The NSW ICAC has found two former Western Sydney Institute of TAFE managers engaged in serious corrupt conduct through soliciting and receiving close to $450,000 from Oscillosoft Pty Ltd as an inducement or reward for favouring that company when sourcing software systems for WSI TAFE (19 October 2021). More...
Law Council launches National Security Committee
The Law Council of Australia has established a National Security Committee to guide its advocacy on the operation of Australia’s laws, policies and practices as the domestic and global security environment evolves (15 October 2021). More...
Ransomware initiative 2021
Australia has joined 31 countries from around the world to issue a joint statement recognising the escalating global threat of ransomware and agreeing to consider a range of actions in relation to resilience, countering illicit finance, disruption and other law enforcement efforts and diplomacy (15 October 2021). More...
OAIC finds against 7-Eleven over facial recognition
Australian Information Commissioner and Privacy Commissioner Angelene Falk has determined that convenience store group 7-Eleven interfered with customers’ privacy by collecting sensitive biometric information that was not reasonably necessary for its functions and without adequate notice or consent (14 October 2021). More...
eSafety finds schools trust its providers
eSafety Commissioner, Julie Inman Grant has announced that almost a third of all Australian schools are using quality online safety education providers endorsed by the Commission. The Commissioner said the program was designed to give schools the confidence that the external online safety provider they engaged had met a range of mandatory requirements (14 October 2021). More...
Rights groups call for stronger privacy protections in home quarantine apps
The Human Rights Law Centre and Digital Rights Watch have written to federal, state and territory health ministers calling for stronger privacy protections in the technology being used to support home quarantine trials (14 October 2021). More...
Appointments to the Federal Circuit and Family Court of Australia (Division 1) 15 October 2021
Appointments to the Federal Circuit and Family Court of Australia (Division 2) 15 October 2021
Increased resources for the Federal Circuit and Family Court of Australia Newcastle Registry 15 October 2021
Draft legislation for Australian Government Digital Identity System
The proposed legislation will enshrine in law, privacy and consumer safeguards for greater trust in the system as it expands. This includes more services and sectors, accelerating an economy-wide rollout. Submissions are open until 27 October 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. Submissions to the consultation close on 12 November 2021.
Law Council submissions
18 October 2021 – Business Law Section
Second round of miscellaneous amendments to Treasury portfolio laws 2021
18 October 2021 – Law Council
Independent panel review request for consultation on the insolvent trading safe harbour
16 October 2021 – Business Law Section
Exposure draft Customs Amendments (Controlled Trials) Bill 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 15 October 2021 edition.
AAT: In-person hearings in our Canberra, Melbourne and Sydney registries
Until further notice, in-person hearings in our Canberra, Melbourne and Sydney registries will only proceed when all parties, representatives and other participants are willing to show evidence that they have been fully vaccinated. Click here for more information.
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Read Issue No. 21/2021, 18 October 2021.
Australian Human Rights Commission consultation
Have your say in a national anti-racism framework. Submissions are open from 21 October to 15 December 2021.
Legal and Constitutional Affairs Legislation Committee
New: The performance and integrity of Australia’s administrative review system.
Crimes Amendment (Remissions of Sentences) Bill 2021
On 6 October 2021 the committee's reporting date was extended to 5 November 2021.
The adequacy and efficacy of Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime
Report by 2 December 2021.
Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Status: Accepting submissions. Date referred: 17 June 2021. Submissions closed: 20 August 2021. Reporting date: 31 December 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.
Consultation on review of the Workplace Gender Equality Act 2012
The Workplace Gender Equality Agency has invited feedback on a review of the law covering workplace gender equality in Australia and issued a consultation paper which covers the current legislation, enshrined in the Workplace Gender Equality Act 2012, as well as gender indicators and continuing employer reporting obligations. Submissions close on 24 November and further information can be accessed on the PM&C website here.
IPC NSW: United Nations Day 24 October 2021
22 October 2021 – the IPC supports United Nations Day on 24 October 2021. Read more here.
NSW Land and Environment Court
14/10/2021: New Acting Commissioner appointments
NSW Court of Appeal publications
The NSW Court of Appeal has published its latest: NSWCA decisions before the High Court as at 14 October 2021.
NSW Supreme Court
15 October 2021: Updates to protocols for real property and commercial, technology and construction lists.
Updated protocols have been issued for the following Supreme Court lists: The real property list; and the commercial, technology and construction list.
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.
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.
ICAC: Prosecution briefs with the DPP and outcomes
The tables on this page each provide information on prosecution briefs that are currently with the Director of Public Prosecutions (DPP), and the outcomes of DPP advice and prosecutions. Last updated 20 October 2021. Read more here.
NSW ICAC: Further Operation Keppel public inquiry starts
The NSW ICAC Operation Keppel further public inquiry started on 18 October 2021. The Commission is investigating whether, between 2012 and 2018, the Hon Gladys Berejiklian MP engaged in conduct that: Constituted or involved a breach of public trust by exercising public functions in circumstances where she was in a position of conflict between her public duties and her private interest. Read more here.
2020–21 annual report
Australian Information Commissioner: Released 18 October 2021. The OAIC made 17 privacy complaint determinations and issued 54 Information Commissioner review decisions that set precedents and provide guidance to other regulated entities. Read the report here.
2020–21 digital health annual report
Australian Information Commissioner: Released 21 October 2021. The OAIC received and finalised seven complaints in relation to the My Health Records system, and received and finalised one complaint relating to the Healthcare Identifier Service. The OAIC was notified of two data breaches involving the My Health Record system. Read the report here.
Australian Government grants reporting
ANAO Report No 7: 19 October 2021. The objectives of this information report are to provide transparency of, and insights on, government grants expense and Commonwealth entities’ self-reporting of grants on GrantConnect. By value, most grants (42 per cent) were awarded through a closed non-competitive selection process. However, ad hoc/one-off grants were the most numerous (24 per cent). Click here to read more.
Management of the Civil Maritime Surveillance Services Contract
ANAO Report No 6: 11 October 2021. The audit objective was to assess whether the Department of Home Affairs is effectively managing the Civil Maritime Surveillance Services contract. Read more here.
CDPP 2020–21 annual report and 2021–25 corporate plan
The CDPP 2020–21 annual report was tabled in Parliament on Wednesday 20 October 2021. The report shares our achievements and outcomes in 2020–21 and gives an overview of the way we work. Click here for more information.
Commonwealth Ombudsman annual report 2020–21
Annual report for 2020–21: 22 October 2021. View the report.
Annual telco complaints report 2020/21
ACMA: Released 19 October 2021. Telcos received just over one million complaints in the 2020–21 financial year. The report also found that the average time taken for telcos to resolve customer complaints was 12.2 days. Read more here.
Grattan on Friday: Morrison government faces battle over integrity commission it doesn’t really want
Centre for Public Integrity: 20 October 2021. Those critiquing the dramatic fall of Gladys Berejiklian, who resigned when the Independent Commission Against Corruption announced it was investigating the probity of her conduct, have divided into two camps. Click here for more information.
Justice John Logan RFD, "The efficient disposal of cases after COVID-19" (2021)
Delivered at the Commonwealth Magistrates' and Judges' Association – virtual conference, on 13 September 2021. Learn more here.
Justice James Edelman, "Original constitutional lessons: Marriage, defence, juries, and aliens" (2021)
This is the edited text of the Lucinda lecture given virtually at Monash University Law School on 19 August 2021. Learn more here.
Mineralogy Pty Ltd v Western Australia  HCA
4. By whom should the costs of this special case be paid? Answer: The plaintiffs.
CONSTITUTIONAL LAW – state Parliament – legislative power – where state of Western Australia entered into agreement concerning mining projects in Pilbara region with Mineralogy Pty Ltd and other parties (co-proponents) including International Minerals Pty Ltd – where agreement and 2008 variation set out in schedules to, and thereby formed part of, Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (State Act) – where agreement provided that Mineralogy Pty Ltd, alone or with co-proponent, could submit proposals to relevant Minister regarding projects – where two plaintiff companies submitted proposals to Minister in 2012 and 2013 – where disputes in relation to 2012 proposal referred to arbitration, resulting in arbitral awards in favour of plaintiffs in 2014 and 2019 – where in August 2020 Parliament of Western Australia passed Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amending Act) – where Amending Act purported to insert new Pt 3 into State Act, including provisions which would deprive 2012 and 2013 proposals of legal effect (s 9) and deprive 2014 and 2019 arbitral awards of legal effect (s 10) – where plaintiffs commenced proceedings in High Court's original jurisdiction seeking declarations that Amending Act wholly or partly invalid – whether manner of enactment of Amending Act contravened s 6 of Australia Act 1986 (Cth) – whether Amending Act exceeded limitation on legislative power of Parliament of Western Australia arising from rule of law or deeply rooted common law rights – whether ss 9(1), 9(2) and 10(4)–(7) of State Act incompatible with Ch III of Constitution – whether ss 9(1), 9(2) and 10(4)‑(7) of State Act incompatible with s 118 of Constitution.
High Court – practice – special case – where parties agreed to state questions of law for opinion of Full Court – where special case stated facts and identified documents said to be necessary to enable Court to answer questions of law – whether facts stated and documents identified sufficient to satisfy Court of necessity of answering questions of law stated in special case for determination of immediate right, duty or liability in controversy between parties.
Palmer v Western Australia  HCA 31
CONSTITUTIONAL LAW – state Parliament – legislative power – where state of Western Australia entered into agreement concerning mining projects in Pilbara region with Mineralogy Pty Ltd and other parties (co-proponents) including International Minerals Pty Ltd – where plaintiff controller and beneficial owner of Mineralogy Pty Ltd and director of both Mineralogy Pty Ltd and International Minerals Pty Ltd – where agreement and 2008 variation set out in schedules to, and thereby formed part of, Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (State Act) – where agreement provided that Mineralogy Pty Ltd, alone or with co-proponent, could submit proposals to relevant Minister regarding projects – where Mineralogy Pty Ltd and International Minerals Pty Ltd submitted proposals to Minister in 2012 and 2013 – where disputes in relation to 2012 proposal referred to arbitration, resulting in arbitral awards in favour of Mineralogy Pty Ltd and International Minerals Pty Ltd in 2014 and 2019 – where in August 2020 Parliament of Western Australia passed Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amending Act) – where Amending Act purported to insert new Pt 3 into State Act, including provisions which would deprive 2012 and 2013 proposals of legal effect (s 9) and deprive 2014 and 2019 arbitral awards of legal effect (s 10) – where plaintiff named in Pt 3 – where plaintiff commenced proceedings in High Court's original jurisdiction seeking declarations that Amending Act wholly or partly invalid – whether Amending Act singled out plaintiff for "disability" or "discrimination" in manner forbidden by s 117 of Constitution – whether ss 9(1), 9(2) and 10(4)–(7) of State Act invalid on basis they amounted to exercise of adjudicative authority regarding controversy within scope of s 75(iv) of Constitution – Whether ss 9(1), 9(2) and 10(4)–(7) of State Act invalid on basis they constituted bill of pains and penalties – Whether Amending Act exceeded limitation on legislative power of Parliament of Western Australia arising from rule of law.
Words and phrases – "adjudicative authority", "bill of pains and penalties", "disability", "discrimination", "exercise of judicial power", "legislative power", "rule of law", "text and structure of the Constitution".
Rock v Legal Aid NSW  NSWCATAD 308
ADMINISTRATIVE LAW – access to government information – access application – prejudice supply of confidential information – prejudice effective exercise of agency's functions – personal information – confidential material – false or unsubstantiated allegations about a person that are defamatory – applicant's personal factors – not be in the best interests of a child – contravention of any other Act or statutory rule that prohibits the disclosure of information – whether public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.
Antonio Di LIristi v NSW Public Trustee and Anor  NSWSC 1347
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal against two decisions of the Guardianship Division the NSW Civil and Administrative Tribunal.
APPEALS – procedural fairness – whether the Tribunal’s rejection of the plaintiff’s request for an adjournment was a breach of the rules of procedural fairness – whether the Tribunal failed to comply with the requirements of s.38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) by failing to give the plaintiff a reasonable opportunity to be heard such as to amount to a constructive failure to exercise the jurisdiction under s 25(2)(a) and (b) of the Guardianship Act 1987 (NSW) – whether the Tribunal in limiting the presentation time of the plaintiff’s case was a denial of procedural fairness – whether there was no evidence to support a finding of the Tribunal – whether rejecting certain evidence denied the plaintiff a fair hearing.
ERT v Secretary, Department of Communities and Justice  NSWCATAD 307
ADMINISTRATIVE LAW – jurisdiction of the Tribunal – whether Tribunal has power to consider applications for grants of private funding for legal counsel under the (NSW) Children and Young Persons (Care and Protection) Act 1998.
Hickey v Secretary, Department of Education  NSWCATAD 306
ADMINISTRATIVE LAW – administrative review – government information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of ss 60(3A) and (3B) factors.
Polar Cones Pty Ltd v Randwick City Council  NSWLEC 1640
ACTIVITY APPEAL – mobile food van – conciliation conference – agreement between the parties – orders.
Blissett v Director of Public Prosecutions (NSW)  NSWCA 253
ADMINISTRATIVE LAW – judicial review – application for review of District Court decision dismissing appeal from conviction in Local Court – application for extension of time – where review limited to jurisdictional error on part of District Court – whether personal service of court attendance notice in accordance with Local Court Rules a condition for exercise of Local Court’s summary criminal jurisdiction – whether applicant denied procedural fairness – whether primary judge erred in rejecting applicant’s “claim of right” defence – no arguable jurisdictional error of District Court.
STAR Training Academy Pty Ltd v Commissioner of Police  NSWCATOD 166
ADMINISTRATIVE REVIEW – holder of a security licence – revocation of an approval under s 27A of the Security Industry Act to conduct training – whether an administratively reviewable decision.
Elali v Department of Customer Service  NSWCATAD 302
HUMAN RIGHTS – discrimination – equal opportunity – leave required for complaint to proceed – principles applying to grant of leave.
Myers v Registrar of Births, Deaths and Marriages  NSWCATAD 300
ADMINISTRATIVE LAW – administrative review – review decision of Registrar of Births, Deaths and Marriages not to amend particulars of death to show that deceased did not have a de facto partner – meaning of de facto partner – s 21C of the Interpretation Act 1987 – consideration of whether deceased had a de facto partner – decision of Registrar affirmed.
Kassam v Hazzard; Henry v Hazzard  NSWSC 1320
PUBLIC HEALTH ACT – COVID-19 – public health orders made under s 7(2) of the Public Health Act – orders designate certain areas of concern and restrict movement out of the home and out of the area – authorised workers able to leave area of concern but only if vaccinated – orders allow residents of area of concern to enter and remain on construction sites but only if vaccinated.
ADMINISTRATIVE LAW – proof of basis upon which Minister for Health acted – Minister did not give evidence – part of documents relied on subject of public interest immunity claim as documents produced to sub-committee of cabinet – whether Jones v Dunkel inference or Blatch v Archer reasoning available against Minister and state – position of Ministers with competing responsibilities – no adverse inference available – Blatch v Archer reasoning not available.
ADMINISTRATIVE LAW – grounds of challenge – relevant considerations – how derived and how framed – procedural fairness – no obligation to afford procedural fairness in making public health orders affecting a vast number of persons – not proven that making of orders was not a genuine exercise of the Minister’s power – unreasonableness – adducing of evidence to undermine factual basis for making of orders – decision to make orders informed by policy considerations – whether differential treatment of unvaccinated persons consistent with objects of Public Health Act – all grounds of review rejected.
CONSITUTIONAL LAW – whether orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution – orders do not create any form of civil conscription in the provision of medical and dental services – s 51(xxiiiA) does not limit legislative power of the States – no joint scheme with Commonwealth to effect civil conscription – neither orders or Public Health Act dependent for its operation on any joint scheme with Commonwealth – argument untenable – no inconsistency between orders, Public Health Act and Australian Immunisation Register Act 2015.
Wojciechowska v Secretary, Department of Communities and Justice  NSWCATAD 298
ADMINISTRATIVE LAW – access application – freedom of information – review of decision of a government agency – information not held – reasonableness of searches – deletion of CCTV footage – CCTV retention periods.
CONSTITUTIONAL LAW – jurisdiction of the Tribunal – whether application for administrative review of a reviewable decision of an agency under the GIPA Act is a matter between a State and a resident of another State – Tribunal not a Chapter III court – question whether Tribunal is exercising federal jurisdiction – whether Tribunal exercising judicial power or administrative power on administrative review under the GIPA Act.
PRACTICE AND PROCEDURE – apprehended bias – principles – applications for disqualification.
EOK v Northern Beaches Council  NSWCATAD 297
ADMINISTRATIVE LAW – privacy – alleged delay in providing access to information – disclosure of personal information – whether contravention of information protection principles – whether non-compliance otherwise permitted – whether action should be taken.
Boland v SAS Trustee Corporation  NSWDC 545
INTERLOCUTORY MOTION – motion for dismissal of proceedings for abuse of process pursuant to UCPR 36.14 – consideration of principles applicable – dismissal not appropriate where matters of fact and law are debateable.
JURISDICTION – application of section 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) to a former police officer – status of previous decision of the Industrial Court in Court Session in Berrick Boland v SAS Trustee Corporation in light of SAS Trustee Corporation v Rossetti holding that the Industrial Relations Commission in Court Session lacked jurisdiction – whether the previous decision of the Industrial Relations Court in Court Session in respect of s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) precluded the District Court from hearing a further application under s 21 of the Police Regulation (Superannuation) Act 1906 (NSW) by reason of issue estoppel and res judicata.
STATUTORY INTERPRETATION – application of s 48 of the Interpretation Act 1987 (NSW) to s 10 B (2) Police Regulation (Superannuation) Act 1906 (NSW).
Montessori Stars Pty Ltd v Secretary, Department of Education  NSWCATAD 295
ADMINISTRATIVE LAW – education and care services national law – review of decision to refuse provider approval – objects and principles of national law – children – childcare services – administrative review jurisdiction – correct and preferable decision – whether the Tribunal should uphold and confirm the decision or substitute decision.
DTN v Commissioner of Police, NSW Police Force (No 2)  NSWCATAD 294
PRIVACY – personal information – health information – use – security of storage – disclosure – accuracy – request for amendment – content and context of personal information – whether a ‘live issue’ – whether about an individual’s suitability for appointment or employment – exceptions to limits on disclosure.
R v Amin  NSWSC 1267
CRIME – terrorism offences – doing an act in preparation for or planning a terrorist attack – attempt to export goods that are prohibited under the Customs Act 1901 – objective seriousness for both offences below mid-range – reasonable prospects of rehabilitation – need for specific deterrence – aggregate sentence imposed.
R v El Matari  NSWSC 1260
CRIME – terrorism offences – doing an act in planning or preparation for a terrorist attack – engaging in conduct preparatory to committing foreign incursion offence – objective seriousness towards low range – relatively young offender – aggregate sentence imposed.
Telstra Corporation and Other Legislation Amendment Bill 2021
22 October 2021 – the Bill proposes a number of amendments to provide certainty that important consumer safeguards, notably the universal service obligation and Telstra’s obligations in relation to emergency call services, will continue to be delivered in an equivalent manner.
Australian Federal Integrity Commission Bill 2021
22 October 2021 – AFIC will have appropriate powers of assessment, investigation, and referral to enable clear, proportionate, and practical responses to allegations of serious and/or systemic corruption issues at the federal level in the public interest, with comprehensive procedural fairness and whistleblower safeguards.
Spam Amendment (Unsolicited Political Communications) Bill 2021
21 October 2021 – the Spam Amendment (Unsolicited Political Communications) Bill 2021 (the Bill) proposes to amend the Spam Act 2003 and the Commonwealth Electoral Act 1918. The purpose of the Bill is to provide consumers with more control over the receiving of unsolicited electronic and telephone communication from political parties by addressing exemptions to laws that otherwise prohibit or limit spam communication.
Statute Law Amendment (Prescribed Forms) Bill 2021
21 October 2021 – the main purpose of this Bill is to reduce the number of provisions on the statute book that require the use of forms that are prescribed by regulations. The amendments will enhance administration and promote consistency across the Commonwealth statute book. The amendments are minor in nature.
Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021
Introduced and read a first time 18 October 2021 – amends the: Commonwealth Electoral Act 1918 to: Provide for the routine independent auditing of authorised electronic technology used at federal elections; and require voter identification for electors to vote in federal elections; and Intelligence Services Act 2001 to make consequential amendments.
Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021
Introduced and read a first time 18 October 2021 – the purpose of this omnibus Bill is to make a number of administrative amendments to improve the operation and clarity of various legislations.
Public Governance, Performance and Accountability Amendment (Improved Grants Reporting) Bill 2021
Senate 18 October 2021 – amends the Public Governance, Performance and Accountability Act 2013 to provide for reporting and tabling requirements for certain grants which have been approved by a minister based on an application which an official has recommended should be rejected or does not meet relevant selection criteria or which have been approved by a minister, who is a member of the House of Representatives, for a grantee in their electorate.
Marriage Act 1961
22/10/2021 – Act No. 12 of 1961 as amended.
Tobacco Advertising Prohibition Act 1992
22/10/2021 – Act No. 218 of 1992 as amended.
Law Enforcement Integrity Commissioner Act 2006
22/10/202 – Act No. 85 of 2006 as amended.
Telecommunications (Interception and Access) Act 1979
20/10/2021 – Act No. 114 of 1979 as amended.
Commonwealth Electoral Act 1918
18/10/2021 – Act No. 27 of 1918 as amended.
Australian Human Rights Commission Act 1986
18/10/2021 – Act No. 125 of 1986 as amended.
Federal Proceedings (Costs) Act 1981
15/10/201 – Act No. 23 of 1981 as amended.
Public Interest Disclosure Act 2013
12/10/2021 – Act No. 133 of 2013 as amended.
Surveillance Devices Act 2004
11/10/2021 – Act No. 152 of 2004 as amended.
High Court of Australia (Building and Precincts–Regulating the Conduct of Persons) Amendment Directions 2021
22/10/2021 – this instrument amends the High Court of Australia (Building and Precincts–Regulating the Conduct of Persons) Directions 2021 to make clear that the proscriptions in paragraphs 5(i) and 5(xii) do not apply to public protest or other assembly except in certain circumstances and to remove a redundant reference in the Table of Directions.
Marriage Amendment (2021 Measures No. 1) Regulations 2021
14/10/2021 – the purpose of the Marriage Amendment (2021 Measures No. 1) Regulations 2021 is to update the Marriage Regulations to ensure their clear and efficient operation. This includes: Amendments to assist with the efficient administration of the Marriage Celebrants Program; consequential amendments to the Marriage Regulations arising from amendments to the Act made by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and by the Civil Law and Justice Legislation Amendment Act 2018 (CLJLAA)
Regulations and other miscellaneous instruments
Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Regulation (No 2) 2021 (2021–615) – published LW 22 October 2021
Local Government (General) Amendment (Elections) Regulation 2021 (2021–617) – published LW 22 October 2021
Bills introduced Government – 22 October 2021
Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021
Crimes Legislation Amendment Bill 2021
Customer Service Legislation Amendment Bill 2021
Bills revised following amendment in Committee – 22 October 2021
Better Regulation Legislation Amendment (Miscellaneous) Bill 2021
Constitution Amendment (Virtual Attendance) Bill 2021
Bills passed by both Houses of Parliament – 22 October 2021
Better Regulation Legislation Amendment (Miscellaneous) Bill 2021
Local Government Amendment (COVID-19–Elections Special Provisions) Bill 2021
Bills introduced Government – 15 October 2021
Local Government Amendment (COVID-19–Elections Special Provisions) Bill 2021
Modern Slavery Amendment Bill 2021
Public Interest Disclosures Bill 2021
Non-Government – 15 October 2021
Companion Animals Amendment (Puppy Farms) Bill 2021
Constitution Amendment (Virtual Attendance) Bill 2021
Crimes Amendment (Display of Nazi Symbols) Bill 2021
ICAC and Other Independent Commissions Legislation Amendment (Independent Funding) Bill 2021
Voluntary Assisted Dying Bill 2021
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