​Administrative Law Quarterly - June 2023

Adminstrative Law Quarterly provides summaries of a selection of recent administrative law decisions/judgments in matters relevant to the NSW Government and its agencies in which the Crown Solicitor acted.

In this issue:

1. Constitutional Law
   • A department’s role in assisting minister may be impliedly limited by statute (Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10)
   • ‘Notional GST’ is not unconstitutional (Hornsby Shire Council v Commonwealth of Australia [2023] HCA 19)
   • Who should determine bias questions in multi-member courts (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15)
   • High Court refuses special leave for Kable challenge to committal procedures in NSW (Landrey v Director of Public Prosecutions (NSW) & Ors [2023] HCATrans 89)
   • Power to make public health orders not unconstitutional (Stratton v State of New South Wales [2023] NSWSC 396)
2. Privacy
   • Departure from the orthodox meaning of ‘disclosure’ under NSW privacy legislation (FMM v Nominal Insurer [2023] NSWCATAD 114)
   • Emailing a Word version of a party’s written submissions to the Tribunal at its request (without copying the other party) did not amount to an ex parte communication giving rise to a reasonable apprehension of bias (BVV v Commissioner of Police, NSW Police Force [2023] NSWCATAD 134)
   • No review of privacy internal review applications lodged out of time (EJE v Department of Education [2023] NSWCATAD 132)
3. GIPA Act
   • Applying the public interest test under the GIPA Act (Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAP 103)
   • Appeal Panel awards costs in favour of agency (Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104)
   • Appeal Panel confirms commercial value of training material (Webb v Port Stephens Council [2023] NSWCATAP 133)
   • Risk of serious harassment or serious intimidation by release of information (Zonnevylle v Minister for Education and Early Childhood Learning [2023] NSWCATAD 135)
   • More than general effects of disclosing requested information may be required to establish ‘overriding public interest against disclosure’ (DYD v Commissioner of Police, NSW Police Force [2023] NSWCATAD 97)
   • Applications for information invalid (Hariz v Commissioner of Police, NSW Police Force [2023] NSWCATAD 99)
   • Review of decision that information not held (Ooi v NSW Ministry of Health [2023] NSWCATAD 107)
4. Supreme Court
   • Mistaking the scope of statutory powers (Secretary, Department of Education v Derikuca [2023] NSWCA 94)
   • Court of Appeal clarifies Minister’s right of financial assistance recovery from non-compliant schools under the Education Act (Malek Fahd Islamic School Limited v Minister for Education and Early Learning [2023] NSWCA 143)
   • Court of Appeal resolves issues concerning the coherent application of CPOR Act (Commissioner of Police, NSW Police Force v TM [2023] NSWCA 75)
   • ILGA’s procedural and substantive obligations in deciding Class 1 local impact assessments under s. 36 of the Gaming Act (Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 67)
   • The grant and continuation of ‘Crown leases’ (Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52)
   • The requirement to ‘specify’ an offence in a penalty notice with unambiguous clarity (Beame; Els v Commissioner of Police & Anor [2023] NSWSC 347)
   • Distinct regimes in regulating gaming activities: the Gaming Machines Act and Liquor Act (Whitebull Hotel Pty Ltd v Independent Liquor and Gaming Authority; Area Hotel Pty Ltd v Independent Liquor and Gaming Authority; The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 588)
   • Not ‘in the interests of justice’ to fragment Local Court criminal process by allowing access to surveillance device warrant application (Gamage v Riashi & Anor [2023] NSWSC 390)
   • Duties assessment on declaration of trust over dutiable property revoked (Leppington Pastoral Co Pty Ltd v Chief Commissioner of State Revenue [2023] NSWSC 463)
   • Payroll tax assessments on employment agency contract revoked (Integrated Trolley Management Pty Ltd v Chief Commissioner of State Revenue [2023] NSWSC 557)
   • Court acts as a judicial valuer (Perisher Blue Pty Limited as Trustee for the Snow Trust v Valuer General [2023] NSWLEC 41)
5. Merits Review
   • Revisiting fitness and propriety in firearms licensing appeals (Chaaban v Commissioner of Police [2023] NSWCATAD 93)
   • Misconceived administrative review of notional carrying capacity (Moore v Local Land Services [2023] NSWCATAD 140)
   • Full Federal Court considers the meaning of ‘would have entitled the employee to long service leave’ (Conroy’s Smallgoods v Australasian Meat Industry Employees Union [2023] FCAFC 59)

For enquiries about these matters or the CSO's administrative law expertise and legal services, please contact John McDonnell, Assistant Crown Solicitor.