Definition of sacred site challenged in Aboriginal heritage test case

The definition of a sacred site is being challenged in an Aboriginal heritage test case in the WA Supreme Court (27 November 2014). Read the full article here.

Doctor who infected 54 women with Hepatitis C during abortion procedures to pay $300k compensation to victims

The victims were awarded $13.75 million compensation in a class action against the surgery, practice boss Dr Mark Schulberg and the Australian Health Practitioner Regulation Agency. But the women wanted to be compensated by Peters himself and launched civil action against him (27 November 2014). Read the full article here

ACORN to revolutionise how Australians report cybercrime to police

Cybercrime victims will be able to report criminals in real time following today's launch of a revolutionary new online system for all Australians—the Australian Cybercrime Online Reporting Network (the ACORN) (26 November 2014). Read the full articlehere.

Law Council says Indigenous imprisonment is a national crisis

Law Council of Australia President-elect, said Indigenous imprisonment rates have doubled since the time of the Royal Commission in to Aboriginal Deaths in Custody (27 November 2014). Read the full article here.

Plan for new judicial council to hear complaints against ACT judges, magistrates

A bill to create a new body to deal with complaints against judges and magistrates will be tabled in the ACT Legislative Assembly this week by the Attorney-General (26 November 2014). Read the full article here.

Public service performance management is not bullying, says FWC

The Fair Work Commission has refused to grant a "stop the bullying order" to a senior Australian Bureau of Statistics public servant who alleged his boss was using the bureau's performance management system to bully and force him out of his job (25 November 2014). Read the full article here.

One step closer to shutting down the synthetic drug trade

The House of Representatives passed theCrimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. This legislation will allow law enforcement agencies to charge people who import synthetic drugs whose chemical structures have been deliberately changed so they can be legally imported into our country (25 November 2014). Read the full article here.

Equality, Capacity and Disability in Commonwealth Laws: ALRC Report

The ALRC Report makes 55 recommendations for reform that will better provide people with disability equal recognition before the law—in particular, in relation to the right to make decisions that affect their lives and to have those decisions respected (24 November 2014). Read the full article here.

Full Federal Court upholds validity of examination notices issued to Paul and Moses Obeid and dismisses appeal

The Full Federal Court has dismissed the appeal of Paul and Moses Obeid and upheld the decision that compulsory examination notices issued by the ACCC to Paul and Moses Obeid are valid. The notices were issued under Section 155 of the Competition and Consumer Act 2010 (CCA) (20 November 2014). Read the full article here.

High Court’s anti-bikie law decision prompts calls for a Charter of Rights

Australian Lawyers for Human Rights (ALHR) has spoken out against the High Court’s decision to uphold Queensland’s harsh anti-bikie legislation, stating Australia is the only liberal democracy in the world that has yet to enact a federal Charter of Rights and that a majority of Australians supported its introduction (20 November 2014). Read the full article here.

Watchdog clarifies privacy powers

The Privacy Commissioner has launched the Office of the Australian Information Commissioner's (OAIC) Privacy Regulatory Action Policy and released a draft guide for feedback. The Privacy Regulatory Action Policy explains the powers available to the Commissioner, and formalises the OAIC's approach to using these powers (19 November 2014). Read the full article here.

Reference checks all important for insurance: leading HR firm

Gold Seal, an Australian HR and compliance firm, has warned insurance companies about the importance of reference and background checks for new employees following several high-profile 'bad hires'. Failure to do so could result disciplinary action from ASIC (18 November 2014). Read the full article here.

High Court upholds criminal gang laws

Attorney-General and Minister for Justice Jarrod Bleijie has welcomed the High Court's decision to uphold Queensland's anti-criminal gang laws. The High Court found the plaintiff lacked standing to challenge the Government’s Vicious Lawless Association Disestablishment Act 2103 (commonly known as VLAD) (14 November 2014). Read the full article here

Department of Immigration and Border Protection unlawfully disclosed personal information of asylum seekers

The Department of Immigration and Border Protection (DIBP) has been found in breach of the Privacy Act 1988 , by failing to adequately protect the personal information of approximately 9,250 asylum seekers (12 November 2014). Read the full articlehere

Employers liable for anti-Muslim rage

Federal and state anti-discrimination legislation makes it unlawful for a person to engage in less favourable treatment of workers because of their religious belief or activity. Employers will be vicariously liable for the discriminatory acts of their employees unless it can be shown that the employer has taken reasonable steps to prevent the unlawful conduct from occurring (12 November 2014). Read the full article here

New approach to International criminal history checks

From early 2015, National Boards and the Australian Health Practitioner Regulation Agency (AHPRA) will implement a new procedure for checking international criminal history (12 November 2014). Read the full article here.

Ombudsman releases report on government complaint handling

Government agencies are more focused on resolving complaints and meeting customer expectations than they were 20 years ago, but they still need to improve. They are the key findings of a report, Complaint management by government agencies, released last week by the Commonwealth Ombudsman, Colin Neave(11 November 2014). Read the full article here.

Proposed changes to the Copyright Act to implement the Marrakesh Treaty – with a side note on the ALRC’s fair use recommendation

The Government has announced a public consultation on Australia’s implementation of the Marrakesh Treaty. The Government’s proposed implementation is outlined in the Marrakesh Treaty Implementation Options Paper, which proposes three alternatives, all of which require amendments to the Copyright Act 1968 (Cth) (11 November 2014). Read the full articlehere.

Committee calls for conscience vote on Dying with Dignity

The Senate Standing Committee on Legal and Constitutional Affairs has today tabled its final report into an exposure draft of federal dying with dignity legislation. A federal Senate inquiry has called for a conscience vote on a bill allowing terminally ill people to legally end their lives, but asked that key technical issues with the legislation be clarified (10 November 2014). Read the full article here.

Blind woman launches claim of unlawful discrimination against Coles over website

One blind woman says she is being discriminated against because of problems with the Coles website. Coles made improvements to the site in 2010 to ensure that the website was accessible, however they failed to ensure that the site remained accessible after a 2013 upgrade (06 November 2014). Read the full article here.

Telstra privacy breach caused fear for physical safety

Telstra has been ordered to pay $18,000 and apologise to a family law judge after it failed to provide him with reasonable notice that his name and address would be published in the White Pages (05 November 2014). Read the full article here.

Over 11,000 responses to child support inquiry

Starting in April, the final hearings for the inquiry conducted by the Standing Committee on Social Policy and Legal Affairs have now finished and the report is being drafted. Over 11,000 responses to the online questionnaire were received (04 November 2014). Read the full article here.

Taking a bite at the unions

The Federal Government has already agreed to broaden the scope of the royal commission and to give it an extra year to deal with its findings. The Head of the commission says his inquiry has revealed evidence of criminal conduct, including widespread instances of physical and verbal violence. It has also uncovered illegal cartel activity, secondary boycotts, contempt of court and leading others to commit contempt (31 October 2014). Read the full article here.

Regulation

Legal Profession Uniform Law Consultation

The Legal Services Council has issued a media release encouraging stakeholders to have their say on draft operating rules for Australia's first united regulatory system for legal practitioners.

View the media release here.

For more information on how to comment on the rules visit the Legal Services Council website here.

Guide to the OAIC’s privacy regulatory action

The Office of the Australian Information Commissioner (OAIC) is seeking public comment on an exposure draft of six chapters of the Guide to privacy regulatory action. The Guide to privacy regulatory action supports both the Privacy regulatory action policy and the PCEHR (Information Commissioner Enforcement Powers) Guidelines 2013. The closing date for comments isFriday 12 December 2014.

OAIC: Privacy regulatory action policy, Monday, 17 November 2014

The Privacy regulatory action policy explains the powers available to the Commissioner, and formalises the OAIC's approach to using these powers. The Guide to privacy regulatory action supports the Privacy regulatory action policy by addressing the regulatory powers, and providing a more detailed explanation of how these powers will be used. The OAIC has released Part 1 of the Guide as an exposure draft, and is currently seeking comments.

Guidelines under Section 95 of the Privacy Act 1988, 2014

These guidelines apply where medical research involves the use of personal information held by a Commonwealth agency and the processes must be followed in order for the information to be lawfully used or disclosed. Registered 10 November 2014. View the guidelines here.

ALRC: Proposals for reform of the Native Title Act: submissions

The ALRC Discussion Paper, Review of the Native Title Act 1993 (DP 82) contains a range of proposals and questions around connection requirements for the recognition and scope of native title rights and interests; authorisation; and joinder provisions. Submissions close on 18 December 2014 here.

View the Discussion Paper here.

Published - articles, papers, reports and regulation

Counting the costs of crime in Australia: a 2011 estimate

Russell G. Smith, Penny Jorna, Josh Sweeney, Georgina Fuller; AIC: 26 November 2014

This report seeks to estimate how much crime costs the Australian economy by calculating the number of crimes that come to the attention of the authorities and, using crime victimisation survey data, the number of crimes that are not recorded officially. Read the full article here.

Report on abuse at the Australian Defence Force Academy

Defence Abuse Response Taskforce: 26 November 2014

This review assessed accounts of abuse at the Australian Defence Force Academy, and recommends a Royal Commission. Read the full report here.

Final Report: Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124)

Australian Law Reform Commission, tabled in Parliament on 24 November 2014

ALRC has recommended a new Commonwealth decision-making model that will encourage the adoption of supported decision-making at a national level.  The Report and Summary Report are available from the ALRC website in a range of formats, including as an ebook.

Read the full report here.

Read the summary report here.

International Influence on the Common Law- Judicial speeches – The Hon Justice Toulson, (Supreme Court of the UK)

In a recent speech presented at the London Common Law and Commercial Bar Association, Lord Toulson of the Supreme Court spoke of the actual and potential impact, both positive and negative, of the influence of foreign law on the development of the common law (released November 2014). Read the full article here.

Statutory Interpretation in Australia' Launch of 8th Edition - Chief Justice Robert French

It is often said that we have too many statutes and that our statutes have too many words in them. It is rare to find a kind word said of statutes by lawyers or judges. As Professors Pearce and Geddes observe in the Introduction to the book, 'a drafter cannot assume that a reader will approach legislation sympathetically' (Released November 2014). Read the full article here

The High Court and the constitutional limits of anti-gang laws: in summary - NSW

NSW Parliamentary Research Service e-brief 14 /2014

On 8 October 2014 the High Court handed down its decision in Tajjour v NSW [2014] HCA 35 (Tajjour)1 in which the offence of consorting in s 93X of the Crimes Act 1900 - NSW was held to be constitutionally valid. Specifically, it was found not to contravene the implied freedom of political communication under the Commonwealth Constitution (11 November 2014). Read the full publication here.

Rounding up the Bikies: The Implications for Standing in Kuczborksi v Queensland

Dr Binoy Kampmark: Rule of Law Institute of Australia, 19 November 2014

Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation.  The High Court refused to see how the plaintiff was distinguishable “from that of any member of the public who is a participant in the affairs of any association. Read the full article here.

Report on government complaint handling

Commonwealth Government Ombudsman: November 2014

People who face challenges such as remoteness, a lack of literacy, disability, or homelessness are more likely to have problems with government, the  Ombudsman recommended that all agency websites contain clear and easy-to-find information on how to make a complaint. The report is available here.

Cases

Kuczborski v Queensland [2014] HCA 46

Does the plaintiff have standing to seek a declaration that any, and which, of the provisions referred to in the schedule to these questions (other than Criminal Code (Q), sections 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), sections 173EB to 173ED) is invalid?

Constitutional law (Cth) – Standing – Plaintiff sought declaration that Vicious Lawless Association Disestablishment Act 2013 (Q) and provisions of the Criminal Code (Q), Bail Act 1980 (Q) and Liquor Act 1992 (Q) were invalid – Where certain provisions only operated where offence committed against existing unchallenged laws – Whether plaintiff had sufficient interest to bring action.

Constitutional law (Cth) – Constitution, Ch III – Institutional integrity of State courts – Where ss 60A, 60B(1), 60B(2) and 60C of Criminal Code created offences elements of which involved being a "participant" in a "criminal organisation" – Where ss 173EB, 173EC and 173ED of Liquor Act created offences elements of which involved wearing symbols of membership of a "declared criminal organisation" – Where power, by regulation, to declare organisation a "criminal organisation" – Whether impugned provisions offended principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 – Whether Court enlisted to implement legislative or executive policy – Whether task given to Court incompatible with institutional integrity.

Words and phrases – "association", "criminal organisation", "institutional integrity", "Kable principle", "participant", "standing", "sufficient interest".

Read about the case here.

Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44

Appeal allowed. Negligence – Duty of care – Statutory duties – Mental Health Act 1990 (NSW) provided for admission and detention of mentally ill persons in hospital – Act prohibited detention or continuation of detention of mentally ill person in hospital unless medical superintendent formed opinion that no other care of less restrictive kind appropriate and reasonably available – Alleged negligence of hospital and medical staff in discharging mentally ill person – Whether hospital and medical staff owed common law duty of care to protect other persons against harm caused by mentally ill person upon discharge – Whether duties under Act inconsistent with common law duty of care.

Read about the case here.

‘DQ’ and Department of the Prime Minister and Cabinet [2014] AICmr 126

Freedom of information — Whether disclosure would disclose commercially valuable information — Whether disclosure of personal information would be unreasonable — Whether disclosure would unreasonably affect business affairs — Whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47, 47F, 47G

Read about the case here.

‘DP’ and Department of Immigration and Border Protection [2014] AICmr 125

Freedom of Information — Whether disclosure would prejudice lawful enforcement methods or procedures — Whether documents contain personal information — Whether disclosure of personal information unreasonable— (CTH) Freedom of Information Act 1982 ss 37, 47F

Read about the case here.

Farrell and Department of Immigration and Border Protection (No. 3) [2014] AICmr 122

Freedom of information — Whether disclosure would unreasonably affect person in respect of lawful business or professional affairs — (CTH) Freedom of Information Act 1982 s 47G

Read about the case here.

Farrell and Department of Immigration and Border Protection (No. 2) [2014] AICmr 121

Freedom of information — Whether work involved in processing request would substantially and unreasonably divert the resources of the agency from its other operations — (CTH) Freedom of Information Act 1982 ss 24, 24AA, 24AB

Read about the case here.

Alphapharm Pty Ltd v H Lundbeck A/S [2014] FCA 1185

STATUTORY INTERPRETATION – PATENTS - where extension of term of patent in suit held invalid by Court in earlier proceedings and extension removed from Register of Patents – whether earlier invalid extension constituted a previous extension for purposes of s 70(4) of the Patents Act 1990 (Cth) – whether earlier extension no decision at all where affected by jurisdictional error – whether extension of term of patent can be granted after earlier invalid extension removed from Register

Read about the case here.

CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCA 1160

ADMINISTRATIVE LAW – STATUTORY CONSTRUCTION – declarations – whether licence of applicant for temporary licence’s status under s 28(1) of Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) a jurisdictional fact – whether temporary licence held by person who did not have status to apply for it invalid for jurisdictional error

Held: temporary licence and variations invalid for jurisdictional error – second respondent circumvented purpose of general licence provisions or object of the Act

Read about the case here.

Munday v Commonwealth of Australia (No 2) [2014] FCA 1123

HUMAN RIGHTS – Discrimination – disability – discrimination alleged in conduct of Commonwealth program regarding early release of superannuation on compassionate grounds – early release of superannuation sought by second applicant to pay for in-vitro fertilisation (IVF) treatment overseas on the basis that it was necessary to alleviate acute or chronic depression – IVF treatment would involve paying for ova – first application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression or that she lacked the financial capacity to meet the expense arising from the proposed treatment by other means – second application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression and also because superannuation funds would be used for a purpose that was not permitted under Australian law – requirement of lawful purpose not specified in Superannuation Industry (Supervision) Act 1993 (Cth) or Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether imposition of this requirement involved unlawful discrimination on the basis of second applicant’s disability (infertility) – whether failure to obtain independent legal advice before imposing this requirement involved a failure to make a reasonable adjustment – Disability Discrimination Act 1992 (Cth), ss 5 and 6

Read about the case here.

Kong v Minister for Health [2014] FCAFC 149

ADMINISTRATIVE LAW – appeals and related – statutory interpretation – approval of pharmaceutical benefits – whether appellants entitled to be heard on application as holders of existing approvals when Minister for Health exercising personal discretion pursuant to s 90A of the National Health Act 1953 (Cth) – where nature of interest of appellants purely economic – application of Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 – whether Minister for Health failed to take into account relevant considerations

Read about the case here.

National Archives of Australia v Fernandes [2014] FCAFC 158

ADMINISTRATIVE LAW – Judicial Review – Archives Act 1983 (Cth) - whether Tribunal erred in granting public access to specific parts of confidential documents – whether error in approach adopted by Tribunal should be set aside even if parties effectively consented to the approach

Read about the case here.

WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137

ADMINISTRATIVE LAW – procedural fairness – legitimate expectation – oral hearing – questions as to credibility of claimant

MIGRATION – Independent Merits Review – oral hearing – Reviewer becomes unavailable – subsequent reviewer listens to tapes and reads transcript – recommendation

Migration Act 1958 (Cth) s 422

Read about the case here.

Legislation

Commonwealth

Acts Assented to

Marine Safety (Domestic Commercial Vessel) National Law Amendment Act (No. 118/2014)    

Assent: 20/11/2014 Commencement: ALL: 20/11/2014 (s. 2)

Guidelines under Section 95 of the Privacy Act 1988, 2014

These guidelines apply where medical research involves the use of personal information held by a Commonwealth agency and the processes must be followed in order for the information to be lawfully used or disclosed. Registered 10 Nov 2014 To be ceased 01 Apr 2025. Learn more here.

Bills Progress

Bills Introduced

Freedom to Marry Bill 2014

The Amendment reduces the extent to which government interferes in private life. It does this by allowing all Australians regardless of sex, sexual orientation, and gender identity to marry. Registered

28 November 2014 Freedom to Marry Bill 2014

Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill 2014

A Bill for an Act to provide a regulatory framework for poker machines that will reduce the harm to problem gamblers, and for related purposes. Registered 24 November 2014

See the Bill here.

Public Service Classification Amendment (Work Level Standards and Other Measures) Rule 2014

This instrument amends the Public Service Classification Rules 2000 primarily to require that agencies use work level standards issued by the Australian Public Service Commissioner when assessing the majority of APS jobs. Registered 28 November 2014

See the Rule here.

Public Governance, Performance and Accountability Legislation Amendment (RBA and Other Measures) Rule 2014

This instrument amends the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Rule 2014 and the Public Governance, Performance and Accountability Rule 2014. Registered 28 November 2014

See the Rule here.