A key difference between the 2020 COVID-19 lockdown and the 2021 lockdown in NSW is the direct impact of the second lockdown on construction projects. The progress of NSW towards a hoped-for relaxation of COVID-19 restrictions towards the end of October brings attention back to the State and private sector’s construction and infrastructure program as a key driver of economic recovery.
This timeframe brings the theme of making the planning system more efficient into clear focus. It also coincides with the commencement of the next tranche of the Government’s Rapid Assessment Framework reforms on 1 October, under the Environmental Planning and Assessment Amendment (Major Projects) Regulation 2021 made on 1 July 2021. The amendments seek to make State significant development (SSD) and State significant infrastructure (SSI) more efficient. The planning circular released by the Government on 1 July 2021 addresses the key changes and the objectives of the reforms.
If one were to draw an overall ‘theme’ from the amendments, it is that the amendments facilitate efficiencies at the ‘front-end’ of a project which should facilitate a more efficient assessment process.
First, from 1 October 2021, a number of SSD categories will be subject to ‘ready-made’ assessment requirements which can be issued in seven days instead of the 28-day timeframe, which applies to other projects. Hospitals, medical centres and health research facilities; warehouses and distribution centres; cultural, recreation and tourist facilities; schools; tertiary institutions; build-to-rent housing; data storage centres; and correctional centres and complexes will all benefit from this. You can access further information on the streamlined assessment requirements here.
The amended regulations will facilitate amendment of an application before it is approved, and provide expanded grounds for the rejection of applications at the initial stage on the basis of the form of application, failure to attach an Environmental Impact Statements (EIS) or where the application is ‘considered incomplete’.
The power to reject an application for being incomplete is balanced out by the new SSD and SSI guidelines, which will also commence on 1 October 2021, with a transitional period for projects with existing environmental assessment requirements. The guidelines encourage standardisation of the form of EIS and also influence how the contents of the EIS are informed, with specific guideline information on preparing Scoping Reports, Submissions Reports, reports to amend an SSD and SSI application, and reports relating to post-approval modifications. The SSD and SSI Guidelines are available to the public here.
Clearly, the idea is to guide the ‘front-end’ of the application process to ensure all information is presented in a standardised format to allow a more efficient assessment of applications. The Stage 2 amendments will be supported further by Stage 3 on 1 July 2022, which will require a ‘registered’ environmental assessment practitioner accredited by either the Planning Institute of Australia or the Registered Environmental Assessment Practitioner Scheme. Again the emphasis is on shoring up the ‘front-end’ process for an application.
As major development and infrastructure projects come back to life, or commence, towards the end of the year and in 2022, these reforms will be front and centre in the application preparation and assessment practice of both applicants for SSD or SSI approvals, and for the agencies and officers which assess them. Undoubtedly, both the industry and the State hope that the ‘rapid’ assessment framework proves to be the lasting hallmark of these amendments.
Authors: Thomas Kwok & Bribie Stansfield
Information Access Commissioners and Ombudsmen make recommendations to support Open by Design Principles
Australian Information Access Commissioners and Ombudsmen published an authoritative statement to promote the proactive release of information. The Open by Design Principles have been released ahead of International Access to Information Day on 28 September (24 September 2021). More...
Some concerns remain for the Law Council over ATO draft privilege protocol
The Law Council of Australia remains concerned about aspects of the Australia Taxation Office’s draft legal professional privilege protocol which was released for further consultation. The draft protocol in places overreaches in the extent of detail of communications that the ATO recommends taxpayers and their lawyers provide in order to maintain a claim of privilege (23 September 2021). More...
New report recommends more action to prevent human rights harms in business sector
The Australian Government, businesses and institutional investors have been called on to take more action to prevent business-related human rights harm, with a new report which examines the implementation of the United Nations Guiding Principles on Business and Human Rights in Australia (23 September 2021). More...
Australia’s human rights reputation undermined by lack of transparency in Commissioner appointment
Australia’s international human rights reputation is undermined by processes that lack transparency and result in hand-picked appointments to critical positions within the Human Rights Commission, says the Australian Lawyers Alliance (22 September 2021). More...
ICAC: Public inquiry into allegations concerning John Sidoti MP to be re-opened
The NSW ICAC will re-open the Operation Witney public inquiry into allegations concerning the state member for Drummoyne, John Sidoti MP, commencing Wednesday, 29 September 2021 (22 September 2021). More...
Protecting children through innovation in NSW
At-risk children are being prevented from slipping through the cracks when their families move interstate with a new database helping child protection authorities access critical information from interstate agencies (18 September 2021). More...
NSW to trial facial recognition, geolocation app for home quarantine
The NSW government will adopt a smartphone app that uses the same facial recognition and geolocation technology as South Australia for its home-based isolation pilot next month (17 September 2021). More...
Consultation to modernise document execution across The Federation
Businesses and individuals are being invited to have their say on how technology can be used to streamline the way statutory declarations and deeds are executed (14 September 2021). More...
Attorney General Court Appointments
17 September 2021: Appointment of Deputy Chief Judges of the Federal Circuit and Family Court of Australia
APS pay rates in line for a change
The Australian Public Service Commission (APSC) has issued a circular setting out changes to APS pay rates to apply between 1 September this year and 31 August 2022. The full circular 2021/04 can be accessed on the APSC website here.
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 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 17 September 2021 newsletter.
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. 19/2021, 20 September 2021.
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 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.
Read the September 2021 IPC Bulletin
15 September 2021 – the IPC Bulletin includes updates on the IPC’s recent activities, resources and guidance, links to new case notes, information about upcoming events, and other relevant issues and developments in information access and privacy. Read the September 2021 IPC Bulletin.
JUDCOM: Sentencing Bench Book
Update 49: 13 September 2021. Intensive correction orders (alternative to full-time imprisonment) has been revised at [3–630]. Guilty plea to be taken into account has been updated at [11–515] [17–410] Sentencing for historical child sexual offences replaces the previous [17–410] Appeals at [70–130] Crown appeals on sentence to the District Court. Click here for more information.
Equitable briefing report due 30 September 2021
A reminder to all barristers who have adopted the Equitable Briefing Policy that you are required to submit your FY21 report to the Law Council of Australia by 30 September 2021. Click here to read more.
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.
PGPA Newsletter 72
17 September 2021 – includes digital annual reporting; new DART FAQ – regulatory charging summary note table; RMG-138 – Commonwealth entities' executive remuneration reporting guide for annual reports. AGOR update reminder – 30 September 2021; Comcover – risk management; expression of interest – Attorney-General’s Department. Read more here.
Improving immunisation coverage
ANAO Report No 5: 22 September 2021. The audit objective was to assess the effectiveness of the Department of Health’s approach to improving and monitoring immunisation coverage. Read more here.
Defence’s contract administration – Defence Industry Security Program
ANAO Report No 4: 13 September 2021. The objective of this audit was to examine the effectiveness of the Department of Defence's administration of contractual obligations relating to the Defence Industry Security Program. Read more here.
Guidelines for dealings between investigators and the Commonwealth Director of Public Prosecutions
CDPP: 13 September 2021. The CDPP receives referrals from a diverse range of partner agencies with investigative functions. These guidelines have been prepared to assist such agencies in their dealings with the CDPP throughout the prosecution process. Click here to read more.
Quarterly report by the Commonwealth Ombudsman under section 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 for the period 1 October to 31 December 2020
Commonwealth Ombudsman: 23 September 2021. Quarterly report by the Commonwealth Ombudsman under section 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 for the period 1 October to 31 December 2020. Read more here.
At the crossroads: 10 years of implementing the UN Guiding Principles on Business and Human Rights in Australia
Australian Human Rights Commission and the Australian Human Rights Institute at UNSW Sydney, Sept 2021. A new report examines the implementation of the United Nations Guiding Principles on Business and Human Rights in Australia. Read more here.
2021 Commonwealth Law Conference – is the adversarial system a sustainable path to justice?
On 6 September 2021, Law Council President, Dr Jacoba Brasch QC, featured as a panellist in the 2021 Commonwealth Law Conference being held in Nassau, The Bahamas. The panel session also featured The Honorable Justice Vasheist Kokaram and Fiona Scolding QC, and was chaired by Derek Sweeting QC, Chair of the Bar Council of England and Wales. The full speech is available here.
NSW recorded crime statistics quarterly update June 2021
NSW Bureau of Crime Statistics and Research: 15 September 2021. This report presents data on crime reported to, or detected by, the NSW Police Force from January 1995 to June 2021, with a focus on the statistical trends for the 24 months ending June 2021. Click here to read more.
Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1)  FCA 1153
EVIDENCE – application for leave to cross-examine a witness under s 38(1) of the Evidence Act 1995 (Cth) – proper construction of “evidence given by a witness that is unfavourable to a party” – whether the court should follow the decision of the Victorian Court of Appeal in DPP v Garrett or an earlier first instance decision of the Federal Court of Australia – whether the construction of s 38(1)(a) in DPP v Garrett was obiter – held that the construction adopted in DPP v Garrett was ratio decidendi and that the court should follow the Victorian Court of Appeal – consideration of whether s 38(1)(a) is engaged – consideration of discretionary matters – leave given.
Walker v Northern Beaches Council  NSWCATAD 277
ADMINISTRATIVE LAW – access to government information – restraint order in place – leave required for applicant to apply for information under Government Information (Public Access) Act 2009 (NSW) – transitional provisions Northern Beaches Council.
EPG v NSW Trustee and Guardian  NSWCATAD 276
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – NSW Trustee and Guardian – interests and welfare of protected person – whether to lease a protected person’s property – financial management order – s16 NSW Trustee and Guardian Act 2009 (NSW) – accessibility of property contents.
Jones (a pseudonym) v R  NSWCCA 225
CRIME – appeals – appeal against sentence – denial of procedural fairness – confidential information detailing applicant’s assistance to the authorities provided to the Court by the Crown but not to the applicant’s legal representatives – application of HT v The Queen – appeal allowed.
Cooney v Commissioner of Police  NSWCATAD 272
ADMINISTRATIVE LAW – government information – access application – information for which there is a conclusive public interest against disclosure (privileged information) – client privilege – in-house lawyers – non-disclosure order – anonymisation order – information for which there is an overriding public interest against disclosure cl 1 (d), (e), (f) and (g) of the table to s 14 (2) of the Government Information (Public Interest) Act 2009 – confidential information – balancing public interest considerations.
Director of Public Prosecutions (Cth) v Saadieh  NSWSC 1186
CRIMINAL LAW – release application – membership of a terrorist organisation – requirement for exceptional circumstances – assessment of strength of prosecution case – possession of ISIS propaganda – pledge of allegiance – conflicting expert opinion on meaning of “giving Bay’ah” – where applicant under observation since 2018 – no escalation in activities – where applicant seeks psychological intervention before arrest – where deradicalisation therapy available in community – COVID 19 – relevance to bail – where applicant suffers from asthma – not the “new normal” for purposes of considering bail – conditions of incarceration – relevance of delay – whether unacceptable risk – conditions of bail – release application granted.
CRIMINAL LAW – bail application – availability of appeal under Crimes Act 1914 (Cth) – statutory stay – detention application – appropriateness of stay allowing Director to challenge decision to grant conditional bail – stay granted.
Groth v Registrar of Births, Deaths and Marriages  NSWCATAD 271
ADMINISTRATIVE LAW – births, deaths and marriages – birth record for the applicant does not state name of the father – applicant and her mother claim an identified person was her father – claim disputed by offspring of the identified person.
Gibson v Director of Public Prosecutions (NSW) (No 2)  NSWCA 218
ADMINISTRATIVE LAW – judicial review – where questions sought to be referred by the applicant to the Court of Criminal Appeal were plainly not pure “questions of law” – where any jurisdictional error by the primary judge in finding that she lacked power to refer questions to the Court of Criminal Appeal because she was functus officio was thus immaterial – where relief withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility.
CRIMINAL PROCEDURE – submission of purported questions of law to Court of Criminal Appeal – nature of the power and role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal – contextual considerations surrounding the operation of s 5B of the Criminal Appeal Act 1912 (NSW).
CRIMINAL PROCEDURE – submission of purported questions of law to Court of Criminal Appeal – where applicant submitted questions informally via email to the Registrar of the Local Court – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court.
CRIMINAL PROCEDURE – submission of purported questions of law to Court of Criminal Appeal – where questions sought to be referred to the Court of Criminal Appeal were plainly not pure “questions of law”.
JUDGMENTS AND ORDERS – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court – general requirement for judgments to be given in open court where practicable to do so – requirement for clarity as to when a judgment has been given – requirement that a judgment reaches the parties.
KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc  NSWCA 216
ADMINISTRATIVE LAW – judicial review – error of law – review of decision of consent authority – construction of State Environmental Planning Policy – whether decision-maker considered conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable.
ADMINISTRATIVE LAW – judicial review – error of law – obligation to consider case presented by applicant – minimising scope 3 greenhouse gas emissions of thermal coal – whether refusal of proposal could lead to use of inferior resource with higher emissions.
ADMINISTRATIVE LAW – judicial review – error of law – reference in reasons to “no evidence” – where information before decision-maker – whether reasons indicated decision-maker not satisfied that information provided rational basis for finding sought.
ENVIRONMENT AND PLANNING – development application – refusal of consent – judicial review – state significant development – coal mine proposal – consent required from Independent Planning Commission – construction of Mining SEPP, cl 14 – conditions of development.
STATUTORY INTERPRETATION – “applicable … policies … concerning greenhouse gas emissions” – State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 14(2).
Redford v Secretary, Department of Education  NSWCATAD 264
ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure.
New v Ku-Ring-Gai Council  NSWCATAD 263
ADMINISTRATIVE LAW – access to government information – access application – review of decision that information not held by an agency.
Bradford v Commissioner of Police  NSWCATAD 262
ADMINISTRATIVE LAW – public access to government information – request for information – whether adequate searches undertaken – conclusive presumption regarding “excluded information” of an agency.
Charter of the United Nations Amendment Bill 2021
Assent Act No: 106. Year: 2021. 13 Sep 2021 – amends the Charter of the United Nations Act 1945 to: Specify that certain counter-terrorism financial sanctions lists and revocations be made by legislative instrument; and confirm the validity of action that has been taken, or which may need to be taken, in respect of conduct in relation to existing counter-terrorism financial sanctions listings that were made but not registered on the Federal Register of Legislation at the time of their making.
COAG Legislation Amendment Bill 2021
HR 14/09/2021 – a Bill for an Act to make amendments to deal with the cessation of the Council of Australian Governments and to make amendments relating to the National Cabinet.
Telecommunications (Interception and Access) Act 1979
13/09/2021 – Act No. 114 of 1979 as amended.
Regulations and other miscellaneous instruments
Annual Holidays Amendment (COVID-19 Prescribed Period) Regulation 2021 (2021–548) – published LW 24 September 2021.
Civil Liability (Non-economic Loss) Amendment Order 2021 (2021–549) – published LW 24 September 2021.
Court Security Amendment Regulation 2021 (2021–551) – published LW 24 September 2021.
Public Health Amendment (COVID-19) Regulation 2021 (2021–562) – published LW 24 September 2021.
Constitution (COVID-19 Emergency Measures) Amendment (Prescribed Period) Regulation 2021 (2021–538) – published LW 17 September 2021.
Interpretation (COVID-19 Emergency Measures) Regulation 2021 (2021–539) – published LW 17 September 2021.
Public Holidays Amendment (City of Lismore) Order 2021 (2021–536) – published LW 15 September 2021.
Stronger Communities Legislation Amendment (COVID-19) Regulation 2021 (2021–537) – published LW 15 September 2021.
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.