NSW forced council amalgamations scrapped

The NSW Government has announced that it will not be proceeding with the forced amalgamation of the councils challenging the mergers in court.

In December 2015, the Government announced plans for 35 forced mergers, which would have reduced the number of councils across the state from 152 to 112. Following a string of legal challenges, the Government reduced the plan to 19 mergers, before abandoning the policy entirely last month.

The NSW Premier and Minister for Local Government attributed the policy decision to the “protracted nature of current legal challenges and the uncertainty this is causing taxpayers”. The proceedings brought by Woollahra Council were due to be heard in the High Court in October, after a special leave application was granted in May.

The change in policy follows the decision by the Government in February to suspend the forced merger of regional councils.

The proposed merger of the following 14 councils into 5, will not proceed:

  • Burwood, City of Canada Bay and Strathfield Municipal councils
  • Hornsby Shire and Ku-ring-gai councils
  • Hunters Hill, Lane Cove and City of Ryde councils
  • Mosman Municipal, North Sydney and Willoughby City councils
  • Randwick City, Waverley and Woollahra Municipal councils

All merged councils throughout NSW will stay merged. Local government elections for all merged councils, as well as the 14 affected by the Government’s announcement, will be held on Saturday 9 September. 

The policy decision leaves a number of issues unresolved, particularly in relation to the discrepancies in the size of councils across Sydney.

Certain councils opposing the amalgamations have said that they intend to claim back court costs from the State Government. Randwick Council spent $463,365 on preparing its systems for the amalgamation whereas, Woollahra Council has spent around $1 million fighting the amalgamations. There are other councils who assert losses. It has said that it will be seeking full compensation from the government for the costs relating to the preparation.

Hornsby Shire Council claims that it has been disadvantaged by up to $10 million by the mergers as it lost part of Epping to the newly formed City of Parramatta Council.

Editorial: Rebecca Kazzi


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In the media

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Acting President of Australian Law Reform Commission
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Three new magistrates for NSW
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ICAC finds former City of Botany Bay Council CFO corrupt over $5.6 million in false invoices and credit card misuse
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Reducing reoffending in Juvenile Justice in NSW
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In practice and courts

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The Law Council of Australia has today said that countless Australians are being denied access to justice as its national Justice Project moves into the consultation phase.
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OAIC: Updated privacy policy
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OAIC: Independent review of the Privacy (Credit Reporting) Code 2014
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Law Council of Australia Submissions 26 July 2017
Response to Consultation Paper OPCAT in Australia

Law Council of Australia Submissions 25 July 2017
Australian National Contact Point 2017 Review

Commonwealth Consultations
October 2017 - Closing date for comments to the FCA on the General Practice NotesMore...

AHRC: e-bulletin, 26 July 2017
The Australian Human Rights Commission e-bulletin. Published monthly, this e-bulletin keeps you up-to-date with our programs, projects and news.  More...

New South Wales

NSW Department of Justice: Practice Notes
PN SC GEN 17 - Practice Note SC GEN 17 – Supreme Court Representative Proceedings (31 July 2017).

NSW Sentencing Bench Book
For the latest update, see Update 38, July 2017

Services for people with disability at NCAT
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ICAC:  Early bird discount registrations are now open for the Australian Public Sector Anti-Corruption Conference
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ICAC: Prosecution briefs with the DPP and outcomes
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Victims' involvement in sentencing
The NSW Attorney General has asked us to conduct a review of victims' involvement in the sentencing process.  More...

Royal Commission civil litigation recommendations
The NSW Government is considering the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse about how to provide justice to victims of future institutional child abuse. The Department of Justice has developed a consultation paper which identifies some of the potential issues and poses questions about possible options for reform. Submissions close on 4 September 2017.  More... 

Published – articles, papers, reports

Change the course: national report on sexual assault and sexual harassment at Australian universities
Australian Human Rights Commission: 01 August 2017
At the request of Australia’s 39 universities, the Australian Human Rights Commission has conducted a national, independent survey of university students to gain greater insight into the nature, prevalence and reporting of sexual assault and sexual harassment at Australian universities.  More...

Comparisons between the youth and adult justice systems: 2015–16
Australian Institute of Health and Welfare: 28 July 2017
This fact sheet summarises some of the similarities and differences between young people and adults in the justice systems in Australia. In 2015–16, the most common principal offence among young people was theft, while among adults it was illicit drug offences.  More...

Are more first-time young offenders being recorded for serious crimes than in the past?
Victoria, Crime Statistics Agency: 20 July 2017
This paper examined the offences police recorded for 10 to 17 year old alleged offenders on the first day they were ever recorded for any offences, where that day was between 2012 and 2016.  More...

National cities performance framework: interim report
Government of Australia: 20 July 2017
Australia's success in the 21st Century economy depends on our cities, suburbs and regional centres. The Australian Government's Smart Cities Plan is committed to creating the foundations for success across all cities and regional centres.  More...

OAICnet - 01 August 2017
In this issue:  Privacy policy update;  Data + Privacy Asia Pacific Conference wrap up; 5 million+ Australians have a My Health Record; APS Privacy Governance Code consultation; FOI decisions; Commissioner statements.  More...

Cases

Ferguson v State of New South Wales & Ors [2017] NSWSC 887
ADMINISTRATIVE LAW – judicial review of decision of medical Appeal Panel – where Appeal Panel revoked a “medical assessment certificate” on the basis of “demonstrable error” and issued a new certificate – where plaintiff was a police officer suffering PTSD and depression causing “permanent impairment” – where dispute about degree of impairment – consideration of Social Functioning and Employability under the Psychiatric Impairment Rating Scale – HELD jurisdictional error in relation to the functions of the Registrar – HELD misdirection in conclusion that the evidence could not support a finding that the plaintiff’s relationship with her partner was “severely strained” – HELD error of law on the face of the record in finding that there was no material which could support a Class 3 assessment of Social Functioning – medical assessment certificate set aside – matter remitted for rehearing by different Appeal Panel – plaintiff awarded costs.

Kamm v State of New South Wales (No 4) [2017] NSWCA 189
CONSTITUTIONAL LAW – separation of powers – Kable principle – whether the Crimes (High Risk Offenders) Act 2006 (NSW) undermines the institutional integrity of the New South Wales Supreme Court – whether legislation distinguishable from that considered in Fardon v Attorney-General (Qld) – whether legislation distinguishable from that considered in Wainohu v New South Wales – whether objectives of the Crimes (High Risk Offenders) Act 2006 (NSW) are penal or punitive   STATUTORY INTERPRETATION – determination that a person a high risk sex offender pursuant to s 5B – discretion to make extended supervision order pursuant to s 5B   ADMINISTRATIVE LAW – whether there was denial of procedural fairness by primary judge – whether primary judge failed to give adequate reasons – whether decision of primary judge was void for legal unreasonableness – meaning of legal unreasonableness.  

4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191
ADMINISTRATIVE LAW – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – consent authority’s satisfaction that development would have “a neutral or beneficial effect” on water quality required – whether consent authority’s approach valid   ENVIRONMENT AND PLANNING – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – development must have “a neutral or beneficial effect” on water quality under State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW) cl 10(1) – nature of comparison required   STATUTORY INTERPRETATION – delegated legislation – no general principle requiring laxity or flexibility in construction – adherence to basic principles of statutory construction – focus on text and context.

White v Commissioner of Fair Trading [2017] NSWCATAD 233
ADMINISTRATIVE REVIEW - tattoo parlours – tattooist licence - adverse security determination - fit and proper person - public interest.  

State of New South Wales v Bouffler [2017] NSWCA 185
TORTS – trespass to land – whether entry of police officers authorised by law – six police officers entered house occupied by the respondent without his consent – eight officers entered respondent’s property without consent – officers relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether officers had requisite state of mind to satisfy ss 9 and 10 – whether officers must each individually have state of mind – whether officers can enter to assist other officers engaged in an arrest – circumstances in which state of mind can be inferred   STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether each officer must individually have state of mind required under ss 9, 10 and 99 – whether context and purpose indicates that meaning is to be given that is different from or qualifies plain meaning – meaning of “reasonable grounds”   STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – relationship between ss 10 and 99 – whether entry to a premises pursuant to LEPRA, s 10 requires a lawful arrest under s 99 – whether s 10 operates as a derivative of s 99   STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9 – meaning of “breach of the peace” – whether breach of the peace requires actual or threatened violence – whether threat of harm must be to third person.  

Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
COMMON LAW – Local Court Appeal – Firearms Act – whether magistrate erred in construction of s 4D – whether object claimed to be a children’s toy falls within s 4D(4) – determination of imitation firearm – necessity to have regard to production and identification of object - appeal allowed – decision set aside – remitted back to the Local Court for decision to be made according to law.

George Thomas Hotels (Campsie) Pty Limited and Anor v NSW Independent Liquor and Gaming Authority and Ors [2017] NSWSC 994  
COSTS – Civil Procedure Act 2005, Liquor Act 2007, Uniform Civil Procedure Rules 2005.

Robertson v Director of Public Prosecutions (NSW) & District Court NSW [2017] NSWCA 180 

ADMINISTRATIVE LAW – judicial review – generally – s 32 of Mental Health (Forensic Provisions) Act 1990 – whether applicant eligible under s 32 – whether failure to make finding as to jurisdiction – whether denial of procedural fairness.  

The Owners – Strata Plan No 5225 v Registrar General of New South Wales [2017] NSWSC 886  
PUBLIC ROAD – dedication at common law – unmade road – land described as road in subdivision created before 1906 – acceptance and use by public – maintenance by Council STATUTORY CONSTRUCTION – s224(3) Local Government Act, 1919 – freestanding operation not subject to s327 – not opening or dedication of road STATUTORY CONSTRUCTION – s327 Local Government Act – scope and operation – inapplicable to exercise of s224(3) power ADVERSE POSSESSION – exclusive physical control – intention to possess as against whole world – not established STANDING – entitlement of body corporate to sue – adjoining land.

Legislation

New South Wales

Proclamations commencing Acts

Independent Commission Against Corruption Amendment Act 2016 No 65
(2017-387) — published LW 4 August 2017.

Regulations and other miscellaneous instruments

Commercial Agents and Private Inquiry Agents Regulation 2017
(2017-388) — published LW 4 August 2017.
Crimes (Administration of Sentences) Amendment (Parole Applications) Regulation 2017
(2017-386) — published LW 31 July 2017.
Subordinate Legislation (Postponement of Repeal) Order 2017
(2017-389) — published LW 4 August 2017.


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