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NSW Government Bulletin

21 August 2019

#Government

Christine Jones

Published by Christine Jones

NSW Government Bulletin

Government baulks at the possibility of removing rezoning reviews

This editorial looks at the difficulties the New South Wales Government has had in getting the Planning Legislation Amendment Bill 2019 through the Parliament and identifies potential lessons for future legislative reform.

The Planning Legislation Amendment Bill 2019

In July 2019 the New South Wales Government introduced the Planning Legislation Amendment Bill 2019 (Bill).

The Bill is largely mechanical in nature. Its main purpose is to update cross references in other acts including the Land and Environment Court Act 1979 and the Crown Land Management Act 2016 to reflect the introduction of the decimal numbering system that occurred in the Environmental Planning and Assessment Act 1979 (EP&A Act) on 1 March 2018.

The Minister for Planning and Public Spaces (Planning Minister), Rob Stokes said in his second reading speech for the Bill: 

“All the amendments proposed in the bill are minor and non-contentious. The majority of the matters addressed in the bill are consequential to the commencement of other legislation and the miscellaneous matters do not propose any new policy for the New South Wales planning system”.

The only mildly controversial matter was the inclusion of an explanatory note to address some industry concerns about changes to the requirements relating to occupation certificates which are yet to come into effect [1].

The Bill is typical of the sort of legislation frequently used to oil the machinery of government.

Strictly speaking a stand-alone bill was not required [2], and some of the changes could have also been picked up through one of the Statute Law Revision Bills designed for non-controversial matters.

Other changes could have been addressed through other means, by say making a State environmental planning policy, amendments to the Standard Instrument (Local Environmental Plans) Order 2006 or an amending regulation – all being actions that do not require the prior approval of the Parliament.

Given the contents of the Bill, the Government could have reasonably expected that the Bill would pass into law without much debate.

The Government, having the numbers in the Lower House, had no difficulty in passing the Bill.

Passage of the Bill in the Upper House

The Bill has been introduced into the Upper House and is yet to be debated.

The passage of such a Bill through the Upper House is potentially far more problematic for the Government.

Since the last election the Government needs five additional votes to pass its legislation in the event there is no support from the opposition.

In terms of voting blocks, the five conservative votes comprising: The Shooters, Fishers and Farmers Party (two votes), Pauline Hanson’s One Nation (two votes) and the Christian Democratic Party, are potentially the easiest way through.

Barring that, the Government needs the votes of The Greens (three votes), Animal Justice Party (two votes) and an independent who was formerly a member of The Greens to pass legislation.

Proposed amendments

In the Upper House, the Labor Party put forward an amendment that would have removed the rezoning review process from the NSW planning system.

Rezoning reviews were introduced by the Coalition in 2012 through administrative means. They would allow an applicant who is seeking to have land rezoned apply to the Department of Planning, Industry and Environment to have any decision of a council to refuse to progress the rezoning, or the failure to determine the application within a 90-day period, overturned.

While the Government is supportive of the rezoning review, the Planning Minister’s opinions on the subject are mixed. Rob Stokes has previously said, prior to becoming a minister, that the spot rezoning processes is, “the bane of the planning process. More than anything else they erode public confidence in planning” [3].

More recently, in his capacity as the Planning Minister, he has indicated that he wants to phase out the practice of spot rezonings, saying, “my ambition is a future where spot rezoning doesn't have a role” [4].

The Labor Party, for its part, took a policy to the last election of removing the rezoning review process, choosing to characterise it as a “back door” to the planning system [5].

In addition to the Labor Party amendments, Pauline Hanson’s One Nation also put forward amendments that would include an additional object in the EP&A Act to seek to contain the growth of Sydney, to avoid urban sprawl, congestion and a negative impact on government service delivery.

The amendment would also require the Planning Secretary to prepare an annual report to set out the capacity of each local government area in Sydney to absorb additional residents and recommendations for planning controls to ensure the quality of life in those local government areas in not diminished.

The difficulty posed by the proposed amendments

The problem for the Government is that if it wishes to advance the Bill it runs a real risk that the proposed amendments are adopted and that the Bill passes the Upper House in a form that is not acceptable to the Government.

Even if the amendments were adopted and the Bill was passed by the Upper House it would not pass into law, but it would mean that in the Lower House the Government would potentially be forced to vote against amendments that would remove rezoning reviews, contrary to its own existing policy, and provisions that would impose limits on urban sprawl and congestion within Sydney.

The Government response

Industry groups had recommended that the objectives of the Bill be achieved through other means and that the Bill should not proceed if it threatens rezoning reviews [6].

In response, the Government has indicated that it will not progress the Bill [7].

What are the implications for other legislative reform initiatives?

The fate of the Bill gives rise to a few questions that are worth asking in the context of the current legislative environment.

For bills that affect matters like planning and building safety (for that matter) that have the potential to cut across the political divide, is it strictly necessary for a bill to be introduced into the Parliament given the numbers and the political beliefs of the Upper House, or can the outcomes be achieved through other means that do not require Parliamentary approval?

If legislation is necessary, what can be done to ensure the smooth passage of the bill? Will it have opposition support? Will the bill be dependent on cross bench support?

Does the Bill give rise to the sorts of policy and legal issues where there is a possibility that the numbers in the Upper House run against the Government?

One potential counter is to narrow the scope of the bill to only deal with very narrowly defined issues and that a broad brush legislative reform programme without much substance is probably not worth the political risk.

Author: Peter Holt

[1] "Developers beware: Getting ready for the end of interim occupation certificates"
[2] Notes in the Environmental Planning and Assessment Act 1979 are explanatory notes and do not form part of the Act (s.1.4(13) of the EP&A Act), also see clause 4A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017
[3] Private Members Statement “Planning and Infrastructure Spot Rezoning”, 24 March 2014 Hansard 2014
[4] “'The culture needs to change': Stokes targets high-rise development” Sydney Morning Herald, dated 15 May 2019
[5] “'That is not how you plan a growing city': Labor moves to combat developers” Sydney Morning Herald, dated 12 February 2019
[6] Letter from the Urban Development Institute of Australia to the Planning Minister, dated 7 August 2019
[7] Urban Development Institute of Australia, Developer’s Update, dated 8 August 2019

In the media

Whole-of-Government Legal Services Panel commences
The Morrison Government has launched a new era in the provision of legal services to the Commonwealth, with the commencement of the first Whole of Government Legal Services Panel. The Panel, comprising more than 60 specialist legal providers from across Australia and across a wide range of service expertise, will provide the bulk of the Commonwealth's external legal services until 2024 (16 August 2019).  More...

‘Creeping crisis’ of legitimacy for Australian Public Service
Australia’s public sector faces a “creeping crisis” of effectiveness and legitimacy caused by blunt management tools and cultural inertia, according to a wide-ranging survey of public servants (15 August 2019).  More...

Mining giant loses fight to keep Paradise Papers revelations out of ATO's reach
Australia's biggest coal producer, Glencore, loses a High Court bid to have documents linked to its offshore financial arrangements kept out of reach of the Australian Tax Office (ATO) by invoking legal privilege (14 August 2019).  More...

Chatbot to make solving legal issues simple
The NSW Government will invest $250,000 into designing and building a chatbot that will help vulnerable people solve common legal problems with speed and ease, Attorney General Mark Speakman announced. Marrickville Legal Centre will pioneer the technology after becoming the first recipient of a grant from the government’s new Access to Justice Innovation Fund (14 August 2019).  More...

AFP won't rule out charging journalists in leak investigations
Journalists who published stories based on leaked, highly classified information and were later raided by the Australian Federal Police could still be charged, an intelligence committee hearing is told (14 August 2019).  More...

National security laws should not unduly limit free press, says Law Council
Disclosure of classified intelligence information by journalists and whistleblowers should only be criminalised if it can be proven there is a real threat to national security, says the Law Council of Australia. In its submission to the PJCIS press freedoms inquiry, the Law Council said currently there was a broad scope of journalistic conduct that may be innocuous but could be caught under espionage, sabotage and foreign interference laws (14 August 2019).  More...

Why an Australian charter of rights is a matter of national urgency
If anyone doubts the need for a charter of rights in Australia, the Banerji decision of the High Court handed down demonstrates why legislative protection for our common law freedoms has become a matter of national urgency (13 August 2019).  More...

Get the balance right on farm trespass laws, says Law Council
Proposed farm incitement of trespass laws would duplicate existing state and territory provisions and could stifle legitimate public debate, says the Law Council of Australia. While the Law Council recognised trespass, property damage and theft was unlawful and could cause harm to farming properties, all jurisdictions already had laws criminalising the incitement of such conduct (12 August 2019).  More...

LSC: Draft Legal Profession Uniform Admission Amendment (Qualifications) Rule 2019 (Draft Rule)
The Legal Services Council has released, for public comment for a period of at least 30 days, the draft Legal Profession Uniform Admission Amendment (Qualifications) Rule 2019 (Draft Rule) in accordance with s 426 of the Uniform Law. The Draft Rule relates to the admission of foreign lawyers in NSW and Victoria, a function performed by the admitting authorities in each State (09 August 2019).  More...

It 'doesn't make sense': Judge blasts rule behind Opal Tower class action delay
A multi-million-dollar class action by owners of units in the notorious Opal Towers against the NSW Government faces a month-long delay due to a historical practice note a Supreme Court judge says "doesn't make sense" (09 August 2019).  More...

Last offender sentenced for the terrorist killing of Curtis Cheng
One of the CDPP’s most high-profile and important series of cases came to a close when Mr Mustafa Dirani (25) was sentenced for his role in the act of terrorism which resulted in the death of NSW Police accountant, Mr Curtis Cheng (09 August 2019).  More...

Accessible reproductive healthcare must be the priority as NSW moves closer to decriminalising abortion
The passage of the NSW Reproductive Healthcare Reform Bill through the Legislative Assembly is a long awaited step towards decriminalisation of abortion in NSW (09 August 2019).  More...

BOSCAR: The effect of Lockout laws on assault: Latest data
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OAIC joins with global privacy regulators to call for more information from the Libra Network
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Multicultural students learn about their legal rights
The annual court open days offered the newly-arrived migrants and refugees the opportunity to learn about the NSW justice system and how courts operate in NSW (06 August 2019).  More...

In practice and courts

High Court Practice Direction 1 of 2019
The High Court has recently issued a new practice direction, which applies to matters set down after 1 October 2019.  More...

High Court (2020) Sittings Rules 2019
The High Court has provided a copy of the Rule of Court appointing the High Court sittings for 2020. The Rule of Court appoints the Full Court sittings to be held in Canberra throughout the year and the days on which special leave applications will be heard. Sittings of the Court will continue to be held in Adelaide, Brisbane, Hobart and Perth as required (August 2019).

Attorney General: Purchasing legal services - Whole of Australian Government Legal Services Panel
The Whole of Australian Government Legal Services Panel commenced on 15 August 2019.
The panel consists of five broad Areas of Law, comprising a number of Practice Areas as set out here.

Federal Court of Australia: Notice to the Profession regarding Use of Junior Counsel
The Hon J L B Allsop AO, Chief Justice of the Federal Court of Australia, has issued a Notice to the Profession on the use of Junior Counsel. The note indicates that the Federal Court of Australia encourages the active participation of junior counsel where two counsel are briefed for a party (12 August 2019).  More...

LSC Public consultation: Proposed new rules regarding practice administration
The Legal Services Council (LSC) invites public comment on the draft Legal Profession Uniform Amendment (Miscellaneous) Rule 2019 (Draft Rule) in accordance with s 425 of the Uniform Law.  More...

Government to consult on proposal to establish a single personal injury tribunal
The Minister for Customer Service has announced the Government’s support for the establishment of a single personal injury tribunal to hear workers compensation and compulsory third party disputes. The Minister has also announced that the Government will be conducting a consultation process regarding an appropriate model for the new tribunal (09 August 2019).  More...

Consultation paper: Mandatory notification of data breaches by NSW public sector agencies
The paper aims at seeking feedback on whether NSW public sector agencies should be required to notify the NSW Privacy Commissioner and affected individuals if a breach of privacy occurs; and how the key elements of a mandatory notification scheme should operate (if implemented in NSW).  More...

ICAC public inquiry into lobbying starts
The ICAC's public inquiry into the regulation of lobbying, access and influence in NSW (Operation Eclipse) started on 5 August 2019.  More...

ICAC: Public inquiry into allegations concerning political donations
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ICAC: Operation Ember public inquiry continues Thursday 1 August 2019
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Adoption of mandatory data breach notification
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NSW LRC: Open Justice Review - court and tribunal information: Access, disclosure and publication
The Attorney General has asked us to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals.  More...

Published – articles, papers, reports

The effect of lockout and last drinks laws on non-domestic assaults in Sydney: An update to March 2019
Neil Donnelly, Suzanne Poynton
NSW Bureau of Crime Statistics and Research: 08 August 2019
This research set out to examine the long term impact of the 2014 NSW liquor law amendments on non-domestic assaults in Kings Cross, the Sydney CBD and surrounding areas. As in previous studies, a significant reduction in non-domestic assaults in the Kings Cross and Sydney CBD precincts was revealed.  More...

Cases

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208
APPEAL – licensing and regulation – leave to appeal on a ground other than a question of law – whether Tribunal’s decision unjust – whether significant new evidence had arisen since the hearing below
ADMINISTRATIVE LAW - practice and procedure - Agency's duty to produce documents under s 58 Administrative Decisions Review Act 1997.

Alajmi v Macquarie University [2019] NSWSC 1026
ADMINISTRATIVE LAW – reviewability – justiciability – subject matter of power or decision – matter of academic judgement – decision by a university thesis supervisor not to certify that a doctoral thesis met the University’s preparation requirement that the thesis was the student’s “own work” – findings of an investigatory panel into allegations of plagiarism against the student taken into account – not an exercise of public power – impermissible merits review
ADMINISTRATIVE LAW – legal unreasonableness – whether the “non-certification decision” and the panel’s findings were legally unreasonable – Briginshaw standard did not apply – inferences made were reasonably open and logically available – not legally unreasonable – no irrelevant consideration – no apprehended bias – no impermissible fetter of discretion or subjugation of state of satisfaction
CONTRACTS – implied terms – parties agreed to be bound by the University’s By-laws and Rules – no term that the parties also agreed to be bound by the University’s Code, Policy and Procedure should be implied
CONTRACTS – legal unreasonableness – alleged failure to exercise a unilateral contractual discretion reasonably – “non-certification decision” not legally unreasonable
ESTOPPEL – estoppel by convention – mutual assumption – assumptions not supported by the evidence
ESTOPPEL – estoppel by representation – detrimental reliance – representations not made – representations not relied upon.

Saul v Department of Fair Trading [2019] NSWCATAD 161
ADMINISTRATIVE LAW – disciplinary decisions – whether fit and proper person to hold a licence Administrative Decisions Review Act 1997 (NSW); Property Stock and Business Agents Act 2002 (NSW).

DQN v University of Sydney [2019] NSWCATAD 159
ADMINISTRATIVE LAW – freedom of information – access to information concerning a preliminary assessment report of a complaint made by the applicant – whether there is public interest against the disclosure of the information sought and on balance, that public interest against disclosure overrides the public interest in favour of disclosure – confidential information – personal information of a person other than the applicant.

DMW and DMX v NSW Rural Fire Service [2019] NSWCATAD 158
Administrative Law – privacy and personal information whether collection of personal information – use of personal information – disclosure of personal information - whether agency exempt from compliance with information protection principle - law enforcement purposes.

Lilli v Building Professionals Board [2019] NSWCATOD 119
The respondent is to refund the balance of $5,000.00 to Mr Lilli within 28 days of this decision.
ADMINISTRATIVE REVIEW – accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders - Administrative Decisions Review Act 1997.

Legislation

Regulations and other miscellaneous instruments
Administrative Decisions Review Regulation 2019 (2019-380) — published LW 16 August 2019
Anti-Discrimination Regulation 2019 (2019-381) — published LW 16 August 2019
Children (Protection and Parental Responsibility) Regulation 2019 (2019-382) — published LW 16 August 2019
Children’s Court Regulation 2019 (2019-383) — published LW 16 August 2019
Civil Liability Regulation 2019 (2019-384) — published LW 16 August 2019 Proportionate liability
Crimes (Domestic and Personal Violence) Regulation 2019 (2019-386) — published LW 16 August 2019
Privacy and Personal Information Protection Regulation 2019 (2019-391) — published LW 16 August 2019
Status of Children Regulation 2019 (2019-395) — published LW 16 August 2019
Victims Rights and Support Regulation 2019 (2019-398) — published LW 16 August 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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Christine Jones

Published by Christine Jones

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