A recent decision of the NSW Court of Appeal (Court) in Elachi v Council of the City of Shoalhaven [2016] NSWCA 16, highlights the importance of clear drafting for legislative drafters, particularly when considering the interrelationship between legislative instruments and sets out some key principles of statutory interpretation.
The case sets out a number of important statutory interpretation principles, including the following:
- when dealing with inconsistency, regard should be given to the institutional setting in which the conflict arises, with a proper understanding of the functions of separate institutions and the relationship between them;
- the Environmental Planning and Assessment Act 1979 (EP&A Act) sets out a clear hierarchy of plans which must be taken into account when considering the inconsistency of provisions; and
- the primary purpose of the legislation should also be considered.
The case is a reminder of the limited application and scope of Development Control Plans (DCPs). Councils need to exercise care when drafting DCPs, paying particular attention to section 74C of the EP&A Act. Otherwise, the DCP or certain of its provisions can be held to be invalid.
Lastly, the case highlights the necessity of clear drafting, particularly when prohibitions and exemptions rely on other legislative instruments. The Court said that much confusion would have been avoided if clause 5.9(3) of the Shoalhaven Local Environmental Plan 2014 used the words "to which this clause applies" rather than "to which any such development control plan applies", the effect of which was to provide for a DCP which limited its own operation and formed the basis of the Appellant's argument.
Read more about the facts and the Court's decision
here...
Government Lawyers half day conference - 17 March
2016
Holding Redlich and the Association of Corporate Counsel
(ACC) invite you to attend an intensive half day conference on 17
March for those employed in the public sector. Please click
here to find out more and to RSVP.
To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.
In the media
Courts Consultation Committee established
Attorney General Gabrielle Upton has announced the
establishment of the Courts Consultation Committee to provide her
with high-level advice on the NSW judicial system (26 February
2016). Courts Consultation Committee established
BOSCAR: Why is
the NSW prison population still growing
The latest
report indicates this is partly due to an increase in the
percentage of convicted offenders given a prison sentence and
partly due to the fact that police are more often initiating
criminal proceedings against offenders who, if convicted, are
likely to be imprisoned (26 February 2016).
More...
See full report: Why is the NSW prison population still growing? Another look at prison trends between 2011 and 2015
Centralised Monitoring System licence awarded
A licensee has been selected to operate the Centralised
Monitoring System (CMS) that monitors gaming machines across NSW
for a 15 year period. The competitive tender process was overseen
by a government steering committee and underwent a rigorous
assessment of financial, commercial, technical, legal and probity
considerations (26 February 2016).
More...
Topbetta convicted of illegal gambling inducements
The NSW-based sportsbetting company, Topbetta, has been
prosecuted by Liquor & Gaming NSW for publishing illegal
advertising that offered NSW residents inducements to participate
in gambling. (23 February 2016) Topbetta convicted of illegal gambling
inducements
Limitation Periods for Bringing Child Abuse Claims to be
Removed in NSW
On 16 February 2016, NSW Attorney
General) introduced the Limitation Amendment (Child Abuse) Bill
2016 into the NSW Parliament which will permit child abuse
actions to be brought at any time without regard to any limitation
period under the current Limitation Act 1969 (NSW)Act (18 February
2016) More...
Justice for survivors of child sexual abuse
The NSW Government will introduce legislation today to
make it easier for survivors of child abuse to access civil
justice. The legislation is one part of the NSW Government's
response to the Royal Commission into Institutional Responses to
Child Sexual Abuse recommendations on redress and civil litigation
(16 February 2016) Justice for survivors of child sexual abuse
In practice and courts
ICAC: Public inquiry into coruption allegations
concerning former City of Botany Bay Council chief financial
officer
The inquiry into allegations concerning former City of
Botany Bay Council chief financial officer, Gary Goodman, will
start next Monday (29 February 2016).
Public inquiry into coruption allegations concerning former City of
Botany Bay Council chief financial officer starts Monday
NCAT: Changes to review of GIPA Act decisions and
privacy matters
The NSW Civil and Administrative Tribunal (NCAT) has
introduced new procedures for applications about access to
government information and privacy matters (24 February
2016).
Changes to review of GIPA Act decisions and privacy
matters
NSW Parliament - This month in committees
Upcoming hearings
2016 Review of the Annual Reports of Oversighted Bodies (Mon
29).
Inquiries receiving submissions
Inquiry into Legislative Council committee system, closes 6
March.
Inquiry into Reparations for the Stolen Generations in New South
Wales, closes 31 March.
Reports
Progress of the Ombudsman's investigation 'Operation
Prospect' (report published) (Mon 22).
The conduct and progress of "Operation Prospect" (report
published) (Mon 22).
Legislation Review Digest No 2 of 2016 (Tue 23).
Government responses due
Progress of the Ombudsman's investigation 'Operation
Prospect' (response due) (Thu 25).
Government responses
Progress of the Ombudsman's investigation 'Operation
Prospect' (response received) (Mon 22).
The conduct and progress of "Operation Prospect"
(response received) (Mon 22).
Cases
Mehajer v Director-General of the Department of Local
Government [2016] NSWSC 143
APPEAL – appeal against decision of NCAT –
Civil and Administrative Tribunal Act 2013, sch 5 cl 29(2) –
whether NCAT committed an error of law in holding that the
plaintiff was obliged to disclose his pecuniary interest in
property – Local Government Act 1993 (NSW), s 451
STATUTORY INTERPRETATION – words and phrases –
"change of the permissible uses" – Local Government
Act 1993 (NSW), s 448(g).
More...
Charles v Northern New South Wales Local Health District
[2016] NSWIRComm 1004
UNFAIR DISMISSAL – casual employee –
whistleblower – bullying and harassment – workers
compensation claim – separation from casual pool –
administrative process – no dismissal – application
dismissed.
More...
CFA v Department of Family and Community Services [2016]
NSWCATAD 32
PRIVACY APPLICATION – Application for extension of
time to lodge application – Relevant principles –
application granted.
More...
Elachi v Council of the City of Shoalhaven [2016] NSWCA
15
STATUTORY INTERPRETATION – principles –
relationship between provisions in different statutes of same
polity – legislation creating hierarchy of instruments
– functional approach to provisions conferring power on
different authorities – legislation limiting need for dual
authorisations
More...
Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty
Ltd and Minister for Planning [2016] NSWLEC 6
JUDICIAL REVIEW – development consent for open cut
coal mine – likely significant effect on threatened species
of the koala – development application contained indication
of likely significant effect – whether misdirection in giving
or considering indication – consideration of impact on koala
population including by koala translocation – whether failure
to consider what was local population of koalas – condition
of consent requiring koala plans of management – whether
condition deferred consideration of impacts on koalas –
whether failure to consider precautionary principle or principle of
conservation of biological diversity and ecological integrity
– application dismissed.
More...
Office of Local Government v Toma [2016] NSWCATOD
21
CIVIL AND ADMINISTRATIVE TRIBUNAL – Local Government
Act – misconduct by Councillor who accessed other
Councillor's official email accounts without permission –
improper and unethical behaviour – sanctions imposed
More...
Legislation
NSW
Regulations and other miscellaneous instruments
Administrative Decisions Review Amendment (Exclusion from Internal
Review) Regulation 2016 (2016-95) — published LW 26
February 2016
Criminal Procedure Amendment (Children's Champions) Regulation
2016 (2016-96) — published LW 26 February 2016
Children (Detention Centres) Amendment (Use of Force and Drug
Testing) Regulation 2016 (2016-74) — published LW 19
February 2016
Crimes (Administration of Sentences) Amendment (Use of Force)
Regulation 2016 (2016-75) — published LW 19 February
2016
Bill introduced Non-Government – 26 February
2016
Government Information (Public Access) Amendment (Sydney Motorway
Corporation) Bill 2016
Bills introduced Government – 19 February
2016
Associations Incorporation Amendment (Review) Bill 2016
Government Sector Employment Legislation Amendment Bill 2016
Limitation Amendment (Child Abuse) Bill 2016
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
