In the media

Flawed citizenship-stripping Bill shouldn’t be passed The Law Council of Australia has reiterated its strident opposition to the Federal Government’s proposed citizen-stripping laws, which could render people stateless, do not adhere to international obligations and remain under a constitutional cloud (14 February 2019). More...

Police airport powers recommendations strike balance between security and human rights Australian airports will be safer and the rights of individuals better protected if a raft of recommendations are applied to the Police Powers at Airports Bill, according to the Law Council of Australia (13 February 2019). More...

Scott Morrison suffers historic defeat as Labor and crossbench pass medevac bill The Morrison government has suffered an historic defeat, losing the first substantive vote on the floor of the House of Representatives since 1929, after Labor and the crossbench stared down a bare-knuckle tactical offensive by the Coalition, including late advice that the medical evacuations bill was unconstitutional (13 February 2019). More...

High court rejects attempt to challenge Australia's indefinite detention regime The high court has rejected an attempt to reopen a controversial ruling which effectively enabled indefinite immigration detention in Australia. The full bench in Canberra took the highly unusual step of delivering an immediate judgement, after a tumultuous day which saw the plaintiff’s lawyers seek to stop them hearing the case and have it sent back to a single judge for reassessment (13 February 2019). More...

'We cannot remain silent': Queensland clinicians' fears on electronic medical record Clinicians at Queensland's public hospitals say they “cannot remain silent” in the face of patient safety risks related to Queensland Health’s integrated electronic medical record project (13 February 2019). More...

Queensland Health Minister backs discrimination ruling Queensland Health Minister Steven Miles has backed a high-profile discrimination finding against his department, despite his officials weighing an appeal against the $1.5 million judgment (13 February 2019). More...

‘Revenge porn’ now a criminal offence People convicted of sharing ‘revenge porn’ could face up to three years’ jail time after the Queensland Government passed laws making it an offence (13 February 2019). More...

New youth justice initiatives aim to support young people and communities The Queensland Government is investing $17 million into new and improved initiatives in the youth justice system aimed at improving the outcomes for young people engaged with the youth justice system, their families and their communities (13 February 2019). More...

Legal aid lawyers more efficient than publicly funded private lawyers Preliminary results presented at the 6th Annual Applied Research in Crime and Justice Conference show that publicly funded cases assigned to private lawyers are less likely to be dealt with summarily (i.e. in a Local Court) and are less likely to be committed for sentence than cases dealt with by in-house legal aid lawyers (13 February 2019). More...

CIC vital but must uphold separation of powers Constitutional conflict could occur if a Federal Judicial Commission to investigate alleged judicial misconduct is not separated from the Federal Government’s proposed Commonwealth Integrity Commission (CIC), the Law Council of Australia has stated (12 February 2019). More...

Data breaches prompt wake-up call The Australian Information Commissioner and Privacy Commissioner has reported that 262 data breaches involving personal information were notified to her office between October and December 2018, prompting the Australian Cyber Security Centre to call on all organisations to step up their efforts to protect themselves (11 February 2019). More...

Sacked Newman minister wins $1.5m payout for hospital board job 'discrimination' The Queensland Civil and Administrative Tribunal has awarded nearly $1.5 million to onetime Newman government assistant health minister Dr Chris Davis, saying he was deliberately overlooked for a medical position at Royal Brisbane and Women's Hospital in 2014 (11 February 2019). More...

Convicted killers to face tougher sentences in Queensland Killers whose callous disregard has led to the death of their victims will, if convicted, face life in jail under new Palaszczuk Government legislation. The Palaszczuk Government decided to expand the definition of murder following the release of the Queensland Sentencing Advisory Council’s Sentencing for criminal offences arising from the death of a child (11 February 2019). More...

New South Wales coal mine ruled out due to climate change, in landmark court decision Australia’s coal-lump caressing prime minister won’t speak its name, but a NSW judge has cited climate change in a landmark ruling blocking plans to develop an open-cut coal mine in the state’s Hunter Valley region (8 February 2019). More...

In practice and courts

Queensland

OIC Queensland: Audit of information management maturity Queensland’s Office of the Information Commissioner’s audit report on departmental information management was tabled in Parliament. This report presents Queensland Government departments’ reported targets for information management, and their self‑assessed information management maturity (14 February 2019). More...

QAO: Regulatory compliance Regulatory compliance is an entity's adherence to laws, regulations, policies and guidelines relevant to its business processes. This article shows you how we evaluate the effectiveness of regulatory compliance and provides our insights on what entities can do to ensure they continue to meet their obligations (11 February 2019). More....

Queensland Land Court Practice Directions Procedure for deciding compensation disputes and conduct and compensation disputes Land Court and Land Appeal Court of Queensland, 3 of 2019 (06/02/2019)

Practice Directions Re-Opening of Townsville Registry Supreme Court of Queensland, 3 of 2019

Published - articles, papers, reports

The practice of dowry and the incidence of dowry abuse in Australia Senate Standing Committee on Legal and Constitutional Affairs. On 26 June 2018, the Senate referred the practice of dowry and the instance of dowry abuse in Australia to the Legal and Constitutional Affairs References Committee for inquiry and report by 6 December 2018. This report was made public on 13 February 2019. More...

OAICnet For the latest news about our activities, publications and other relevant information. The first issue for 2019 is now here.

Cases

Boyd v Automattic, Inc [2019] FCA 86PRACTICE AND PROCEDURE – Application for interlocutory injunctions prior to the commencement of proceedings – respondents domiciled in United States of America – applicant seeks orders requiring the Respondents to disclose details relating to the identity of the publisher of allegedly defamatory material, requiring the Respondents to suspend the domain name and publication of a website, and restraining the publisher of the site from publishing any further defamatory material – application for disclosure of identity to be treated as application for preliminary discovery pursuant tor 7.22 of the Federal Court Rules 2011 (Cth) – where Respondents host the website in question and are in possession of information about the identity of publishers but prevented from releasing it without a court order – circumstances justify the making of an order for preliminary discovery for the purposes of commencing defamation litigation – application otherwise dismissed. Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9(3); Federal Court Rules 2011 (Cth), rr 7.22, 10.42, 10.43, Sch 1; Civil Law (Wrongs) Act 2002 (ACT), s 118; United States Code, Title 28.

Paul Farrell and Department of Home Affairs (Freedom of information) [2019] AICmr 5 Whether documents subject to legal professional privilege — whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — whether disclosure of personal information is unreasonable — whether disclosure would unreasonably affect an organisation in respect of its lawful business affairs — whether contrary to public interest to release conditionally exempt documents — Freedom of Information Act 1982 (Cth) ss 11A(5), 42, 47E, 47F and 47G.

Dean and Comcare (Compensation) [2019] AATA 99 PRACTICE AND PROCEDURE – Workers’ compensation – access to documents returned under summons – medical evidence - relevant principles – where diagnosis of the accepted injury is challenged by Comcare – privacy – objection to access to documents disallowed. Administrative Appeals Tribunal Act 1975, ss 37, 39, 40A, 40B.

Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2Constitutional law (Cth) – powers of Commonwealth Parliament – territories – inconsistency between Commonwealth and Territory laws – where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers – where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation – where Territory law regulates work health and safety – whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws – whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation – whether Territory law inconsistent with Commonwealth law. Words and phrases – "Alter, impair or detract from", "anti-exclusivity clause", "Chicago Convention", "civil aviation", "cover the field", "embarkation", "implicit negative proposition", "indirect inconsistency", "intention to deal completely, exhaustively or exclusively", "legislative intention", "nationally harmonised laws", "operations associated with aircraft", "rule of conduct", "safety standards", "subject matter". Constitution, ss 109, 122.

'PT' and Aged Care Quality and Safety Commission (Freedom of information) [2019] AICmr 3 Freedom of Information — Whether access is to be given to a qualified person — Freedom of Information Act 1982 (Cth) s 47F(5).

Agriwealth Capital Limited v Commissioner of Taxation [2019] FCA 56TAXATION – Applicant applied for a public (product) ruling in respect of its timber project for the 2018 year – respondent Commissioner declined to issue the ruling – applicant applied for a statement under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). ADMINISTRATIVE LAW – Applicant applied for a public (product) ruling in respect of its timber project for the 2018 year – respondent Commissioner declined to issue the ruling – applicant applied for a statement under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – Commissioner took the view that his decision was not a decision to which the ADJR Act applied and that therefore he had no duty under s 13 of that Act to furnish such a written statement to the applicant – nonetheless the Commissioner set out “the reasons why” he had declined to issue a product ruling, and “the findings on material underpinning those reasons” – whether Commissioner’s declining to issue a ruling a decision under an enactment for the purposes of the ADJR Act – whether Commissioner had substantially complied as a matter of fact with the requirements of s 13 of the ADJR Act, if it applied – whether Commissioner’s decision declining to issue the ruling was “accompanied by” a later statement purporting to set out findings of facts, referring to the evidence or other material on which those findings were based and the reasons for the decision – whether as a matter of discretion the Court should order the respondent Commissioner to furnish an additional statement.

Coshott v Parker [2019] FCAFC 14 STATUTORY INTERPRETATION – Whether leave to appeal necessary – whether, where general retaining lien maintained, statute-barred debts nevertheless payable in deceased estate administration under Limitation Act 1969 (NSW) s 68 – whether holder of general retaining lien a “creditor” within meaning of Probate and Administration Act 1898 (NSW) s 82(1). Federal Court of Australia Act 1976 (Cth) s 24(1A) Limitation Act 1969 (NSW) ss 14, 63, 68

Hocking v Director-General of the National Archives of Australia [2019] FCAFC 12ADMINISTRATIVE LAW – Applicant sought access under the Archives Act 1983 (Cth) (the Act) to records, being the originals of correspondence received by, and contemporaneously made copies of correspondence sent by, the former Governor-General, Sir John Kerr, or his Official Secretary, to and from The Queen by means of Her Private Secretary – whether those records a “Commonwealth record”, being records that were the property of the Commonwealth, such that public access to them was governed by Div 3 of Pt V of the Act. CONSTITUTIONAL LAW – Consideration of relationship between the Governor-General and the Commonwealth – consideration of relationship between the Governor-General and The Queen of Australia.

Romark Design Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 21ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – where respondent seeks previous decision be vacated – where respondent consented to amendment of application at first instance – where respondent now contends amendment is beyond the powers of the Tribunal.

Davis v Metro North Hospital and Health Service & Ors [2019] QCAT 18HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO POLITICAL OR RELIGIOUS BELIEFS – Where applicant formerly involved in state politics – where applicant resigns from politics after being fired as Health Minister for publicly criticising government policies – where applicant was qualified and sole candidate for senior medical position – whether decision to not employ applicant was because of applicant’s political beliefs and activities – whether applicant should be awarded general damages for personal impact of decision – whether applicant should be awarded damages for past and future economic loss – whether applicant should be awarded aggravated damages.

Legislation

Commonwealth

Human Services Amendment (Photographic Identification and Fraud Prevention) Bill 2019 Introduced HR 14/02/2019 - If enacted, the Human Services Amendment (Photographic Identification and Fraud Prevention) Bill 2019 (the Bill) will require photographic identification on Medicare cards to mitigate against fraudulent use by someone other than the person to whom it is allocated.

Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 Introduced HR 14/02/2019 - The Bill protects children from sexual exploitation by improving the Commonwealth framework of offences relating to child pornography material and child abuse material, overseas child sexual abuse, forced marriage, failing to report child sexual abuse and failing to protect children from such abuse.

National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 Introduced HR 13/02/2019 - The National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 (Bill) amends the National Disability Insurance Scheme Act 2013 (Act) to establish a database for nationally consistent worker screening, for the purpose of minimising the risk of harm to people with disability from those who work closely with them.

Ministers of State (Checks for Security Purposes) Bill 2019Introduced HR 12/02/2019 - The purpose of the Ministers of State (Checks for Security Purposes) Bill 2019 is to ensure that the Prime Minister is fully informed of any security issues that may arise from the personal background and circumstances of persons who have been appointed as Ministers of State including Assistant Ministers and Parliamentary Secretaries. Ministers of State are currently exempt from the security checking and clearance processes that apply to all Australian Government personnel who are allowed access to security classified government information.

Regulation

Marriage (Celebrant Professional Development) Statement 2019 14/02/2019 - This instrument sets out a list of professional development activities registered marriage celebrants can choose from to meet their ongoing professional development obligations for 2019.

Jury Exemption Regulations 2019 11/02/2019 - These regulations remake the Jury Exemption Regulations 1987 with minor amendments to ensure the regulations remain fit for purpose and meet the needs of the community.

Queensland

Bills Updated Criminal Code and Other Legislation Amendment Bill Introduced by: Hon Y D'Ath MP on 12/02/2019 Stage reached: Referred to Committee on 12/02/2019

Police Service Administration (Discipline Reform) and Other Legislation Amendment Bill Introduced by: Hon M Ryan MP on 13/02/2019 Stage reached: Referred to Committee on 13/02/2019

Criminal Code and Other Legislation (Mason Jett Lee) Amendment BillIntroduced by: Mr D Janetzki MP on 13/02/2019 Stage reached: Referred to Committee on 13/02/2019

Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018 Introduced by: Hon Y D'Ath MP on 22/08/2018 Stage reached: PASSED on 13/02/2019

Subordinate legislation as made – 15 February 2019 No 7 Proclamation—Crime and Corruption and Other Legislation Amendment Act 2018 (commencing remaining provisions)