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NSW Government Bulletin

30 October 2019

#Government

Christine Jones

Published by Christine Jones, Divya Chaddha

NSW Government Bulletin

Recent changes to the NSW Civil and Administrative Tribunal Rules

Changes to the NSW Civil and Administrative Tribunal Rules 2004[1] (NCAT Rules) came into effect on 11 October 2019 pursuant to the Civil and Administrative Tribunal (Amendment No 6) Rule 2019[2] (Amendment Rule). The changes introduced under the Amendment Rule include:

  • intend to clarify when reasons are given for the purpose of determining when the period for making an appeal commences
  • provide that hearings are not required in circumstances where a Registrar makes certain interlocutory decisions of the Tribunal
  • exclude sound recordings from records of orders made or decisions given in proceedings that are held in the Registry and which persons may inspect.

Change to Rule 25 – external and internal appeals

Rule 25[3] addresses the manner in which an external or internal appeal may be made. Under this Rule, if leave to appeal is needed, the appellant is required to lodge an appeal within 28 days generally (or 14 days if for internal appeal against a decision made in residential proceedings) from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. 

The Amendment Rule inserts a new sub-rule 25(4A) into the NCAT Rules which provides that the day on which reasons are given from which the 28 (or 14) days to appeal starts to run is the day on which reasons are first given, whether orally or in writing. 

Changes have been reflected in this NCAT document.

Change to Rule 41 – Tribunal’s interlocutory decisions by Registrars

Rule 41[4] confers on a Registrar a power to make certain interlocutory decisions on behalf of the Tribunal, including but not limited to:

  • extension of the period of time in connection with proceedings
  • appointment of a person to act as guardian ad litem for a party, or represent a party, in proceedings or making of an order for a party to be separately represented in proceedings
  • making of an order prohibiting or restricting the disclosure of evidence or documents in proceedings
  • setting aside of a summons or excusing compliance with a summons in connection with proceedings
  • granting of access to documents or things produced in compliance with a summons in proceedings.

The Amendment Rule inserts a new sub-rule 41(1A) into the NCAT Rules which provides that the Registrar’s power to make interlocutory decisions set out in Rule 41 will not require a hearing, as these interlocutory decisions fall under the exception provided under s 50(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).

Change to Rule 42 – inspections of documents in Registry

Rule 42[5] provides for the manner in which a person who is not a party to proceedings in the Tribunal may obtain access to “public access documents” in the Registry relating to proceedings that are finally determined. 

Prior to the Amendment Rule, “public access document” was defined under the NCAT Rules to mean any of the following:

  • an originating document or reply
  • a statement, affidavit or document admitted into evidence in proceedings held in public
  • a transcript (if available) of proceedings held in public
  • a record of any order made or other decision given in proceedings
  • a record of the reasons given for a decision made in proceedings.

The Amendment Rule inserts “(other than a sound recording)” after “record” in the list above, meaning that sound recordings are no longer public access documents and will no longer be available for inspection to a person not a party to proceedings with respect to proceedings that have not been finally determined. Impliedly, sound recordings of proceedings that have been finally determined may be available for public access.

Changes have been reflected in this NCAT document.

Author: Divya Chaddha

[1] https://www.legislation.nsw.gov.au/#/view/regulation/2014/26

[2] https://www.legislation.nsw.gov.au/regulations/2019-496.pdf

[3] https://www.legislation.nsw.gov.au/#/view/regulation/2014/26/part6/rule25

[4] https://www.legislation.nsw.gov.au/#/view/regulation/2014/26/part10/rule41

[5] https://www.legislation.nsw.gov.au/#/view/regulation/2014/26/part11/rule42

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.

In the media

 Law Council backs push for increase to minimum age of criminal responsibility
The Law Council of Australia has welcomed the introduction of legislation to Federal Parliament, which seeks to increase the minimum age of criminal responsibility for Commonwealth offences to 14 years. The Bill is consistent with Law Council policy and recognises Australia’s international obligations under the United Nations Convention on the Rights of the Child (14 October 2019).   More...

OAIC: Consultation opens on draft privacy rules
The OAIC is seeking feedback over its draft Privacy Safeguard Guidelines. The planned rules apply to the Consumer Data Right (CDR) regime, which aims to provide Australians with greater choice and control over how their data will be used and disclosed. The CDR scheme will be rolled out in February, starting with the banking sector. Closing date for submissions is November 20.  More...

AAT Reporting on our performance
Our Annual Report 2018–19 is now available (22 October 2019).  More...

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. 42/2019 (21 October 2019).  More...

Legal and Constitutional Affairs Legislation Committee
New
Native Title Legislation Amendment Bill 2019
Customs Amendment (Product Specific Rule Modernisation) Bill 2019 [Provisions]
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 [Provisions]

Legal and Constitutional Affairs References Committee
Impact of changes to service delivery models on the administration and running of Government programs
Nationhood, national identity and democracy

ACMA: The form of records kept by broadcasters
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IPC NSW: Media companies in a united call for Right to Know
Some of the nation's media companies have censored their own front pages in a united call for greater media freedom and upholding their right to know. The Your Right to Know campaign will be accompanied by radio and television advertising across the country (21 October 2019).  More...

Amendments to the NCAT Rules
Changes to the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) came into effect on 11 October 2019. The following NCAT resources have been updated to reflect these amendments: NCAT Guideline 1 - Internal Appeals [PDF 218kB] and NCAT Policy 4 - Access to, and Publication of, Information Derived from Proceedings in the Tribunal [PDF 97kB] (15 October 2019).  More...

Decisions of interest: Practice support
The NSW Court of Appeal has published its latest Decisions of Interest Bulletin on the Court of Appeal website (24 October 2019).  More... 

Report tabled - Right to Farm Bill 2019
Legislative Council Portfolio Committee No. 4 has published its final report arising out of its inquiry into the Right to Farm Bill 2019. The report refers extensively to the association’s submission to the inquiry and the evidence given on its behalf at the committee hearing by Naomi Sharp SC, co-chair of the Human Rights Committee (21 October 2019).

Published - articles, papers, reports 

CDPP 2018-19 Annual Report
The 2018-19 CDPP Annual Report was tabled in Parliament on Monday, 21 October 2019.  More...

Commonwealth Auditors General Group e-newsletter (Issue 2 — September 2019)
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A model code for the protection of freedom of speech and academic freedom in Australian higher education providers
French Review Model Code Implementation Group; University of Sydney: 23 October 2019
The report outlines how former Chief Justice, the Hon Robert French’s model code for the protection of freedom of speech and academic freedom can be adopted by the University of Sydney by amending its current Charter of Academic Freedom.  More...

Why the government’s proposed facial recognition database is causing such alarm
The Conversation, October 25, 2019 Sarah Moulds, Lecturer of Law, University of South Australia
Since before the 2019 election, the Morrison government has been keen to introduce a new scheme that would allow government agencies, telecos and banks to use facial recognition technology to collect and share images of people across the country.  More...

Australia needs a Media Freedom Act. Here’s how it could work
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A Media Freedom Act could serve three key roles, making it an appropriate and advantageous option in the protection of national security, press freedom and democracy.  More...

Guide to health privacy
Office of the Australian Information Commissioner: 16 October 2019
The guide outlines the key practical steps that health service providers should take to embed good privacy in their practice. In addition, the guide outlines how key privacy obligations apply to and operate in the healthcare context. This guide has been written to help health services providers — from doctors and private sector hospitals, through under the Privacy Act 1988, and embed good privacy in their practice.  More...

Cases

Zonnevylle v NSW Department of Justice [2019] NSWCATAD 215
ADMINISTRATIVE REVIEW – Government Information (Public Access) – decision that application not a valid access application because one clause did not contain such information as was reasonably necessary to enable the government information applied for to be identified – whether failure to provide sufficient information in one severable portion of an application renders the whole application not a valid access application – application may be valid in part and invalid in part

Fox v Heffernan [2019] NSWCATAD 217
ADMINISTRATIVE LAW – impounding of trespassing cattle on private lands by owner – review of appropriate charge for impound under s 38(2) of the Impounding Act 1992 – charge found to be excessive.

DXD v NSW Department of Justice [2019] NSWCATAD 214
ADMINISTRATIVE LAW – privacy and personal information – review of conduct – jurisdiction -whether conduct under review relates to the exercise of a judicial function

Ramadas v Industrial Relations Secretary (Legal Aid Commission of NSW) [2019] NSWIRComm 1075
PUBLIC SECTOR DISCIPLINARY APPEAL – first and final warning – allegations of misconduct – failure to comply with a lawful and reasonable direction – making vexatious allegations against work colleagues – misconduct struck at the heart of the employment relationship – termination of employment warranted – appeal disallowed

Bryant v Shoalhaven City Council [2019] NSWCATAD 209
FREEDOM OF INFORMATION – government information – whether information held by agency – no reasonable grounds that information is held

Legislation 

Regulations and other miscellaneous instruments
Crimes (Administration of Sentences) Amendment (Use of Force) Regulation 2019 (2019-515) — published LW 25 October 2019
Road Transport (Driver Licensing) Amendment (Digital Driver Licences) Regulation 2019 (2019-517) — published LW 25 October 2019

Bills introduced Government – 25 October 2019
Justice Legislation Amendment Bill (No 2) 2019

Non-Government – 25 October 2019
Child Protection (Nicole's Law) Bill 2019
Liquor Amendment (Harm Reduction Areas) Bill 2019

Bills revised following amendment in Committee – 25 October 2019
Gambling Legislation Amendment (Online and Other Betting) Bill 2019

Bills introduced Government – 18 October 2019
Electoral Funding Amendment (Cash Donations) Bill 2019
Electoral Funding Amendment (Local Government Expenditure Caps) Bill 2019

Statute Law (Miscellaneous Provisions) Bill (No 2) 2019

Non-Government – 18 October 2019
Government Information (Public Access) Amendment (Electronic Applications) Bill 2019

Bills revised following amendment in Committee – 18 October 2019
Right to Farm Bill 2019

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.

Christine Jones

Published by Christine Jones, Divya Chaddha

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