The Library Bulletin

Australian Building and Construction Commissioner v O'Halloran [2021] FCAFC 185 - "A party who invokes the privilege against self-exposure to civil penalties is not required to plead a defence"

Have your say on the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Cth), exposure draft.

Submissions are invited on the Online Privacy Bill and consultation Regulation Impact Statement by 6 December 2021.

See details here.

Staffing The library is currently down to 2 staff, so we ask for your patience and understanding during this time as we may not be able to provide things as quickly as we might normally do.

As restrictions are beginning to ease, we are pleased to advise that from 26 October 2021 the Bar Library will be offering a 'Click, Collect and Return' service for textbook loans. We know that you have been missing the textbooks in particular and we appreciate your patience and forbearance.

We hope that this service will enable us to fulfil your requests for hard copy textbooks without significantly increasing health risks to library users and staff. The Click, Collect and Return Service will operate on Tuesdays and Thursdays 11:00 am-1:00 pm. Here's a 'How to' guide.

The books will be available for you to collect from a trolley outside the library on the sub-basement level of Selborne Chambers. There will also be a returns trolley available. The library will not be open; it will only be possible to collect and return books at these times. Please note that we will not be able to provide recalled books at the speed of light as we will be working within current guidelines regarding quarantining and relying on the kindness of your colleagues in returning books currently on loan.

Regional members of the Bar, please email your requests and we will trial a DX or Express Post service for you.

If you have any queries please do not hesitate to contact us by email and remember, don't hesitate to ask if you are in need of anything. We have mysterious ways of finding things.

High Court confirms media outlets are liable for defamatory Facebook comments by Norman Lucas and Brigitte Challis of Maddocks - considers Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27

The High Court of Australia and civil liberties from Melbourne Law School presented by Professor Jason Varuhas, Professor Michelle Foster, Tim Goodwin and Professor Cheryl Saunders

Law Report (ABC) for 19 October presented by Damian Carrick - Climate science dismissal case sparks academic freedom debate, High Court quashes Palmer $30bn WA compensation challenge

Originalism and Constitutional amendment by Lael K Weis in Chapman law review (forthcoming) - considers "a problem that constitutional amendment uniquely poses for originalism, namely: how should changes to a constitution's text that enact a new set of understandings be reconciled with the understandings of the constitution's framers?"

The practical impacts of the ADJR Act on judicial review applications by Brenda Tronson on Aus Pub Law - considers administrative law

The Proper Officer must be careful not to exercise judgment at the expense of applying statutory criteria by Andrew Gorman of McCabes - considers Oeding-Erdel v Allianz Australia Limited [2021] NSWSC 1264

Some thoughts about proof in competition cases presented by Justice Jagot, delivered virtually at the 18th Annual Competition Law and Economics Workshop on 15 October 2021

What do Australians talk about when they talk about 'parliamentary sovereignty'? by Ryan Goss in Public law (forthcoming) - considers parliamentary sovereignty

The Wigs Podcast from Stephen Lawrence (Black Chambers), Emmanuel Kerkyasharian (Forbes Chambers), Felicity Graham (Black Chambers) and Jim Minns - S3 E6 : Human rights and technology - Emmanuel Kerkyasharian in discussion with Edward Santow

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 - public health orders

Lanzer v Australian Broadcasting Corporation [2021] FCA 1283 - "whether first respondent has induced or procured or threatens to induce or procure a breach of contract by such employees"

Smith v Fonterra Co-Operative Group Limited [2021] NZCA 552 - climate change

Indigenous people cannot be aliens in their own land. Why challenging this fact (again) is so concerning by Kate Galloway and Melissa Castan on The Conversation

Juukan Gorge report urges sweeping reforms to cultural heritage laws by Sarah Collard on NITV

Register for The Australian Constitution and Voice, Treaty, Truth from Monash University, presented by Dr Shireen Morris, Dr Harry Hobbs and Eddie Synot.

Time : Thu, 4 November 2021, 5 – 6.15 PM AEDT

See details here.

Awaiting assent

Better Regulation Legislation Amendment (Miscellaneous) Bill 2021 - awaiting assent, Tue 19 Oct 2021

Coastal Management Amendment Bill 2021 - awaiting assent, Thu 21 Oct 2021

Electric Vehicles (Revenue Arrangements) Bill 2021 - awaiting assent, Wed 20 Oct 2021

Local Government Amendment (COVID-19—Elections Special Provisions) Bill 2021 - awaiting assent, Tue 19 Oct 2021

Water Industry Competition Amendment Bill 2021 - awaiting assent, Thu 21 Oct 2021

Assented

Road Transport Legislation Amendment Act 2021 No 22 — assented to 20 October 2021

In progress

Civil Liability Amendment (Child Abuse) Bill 2021 - in Legislative Assembly, To be reported, Thu 21 Oct 2021

Companion Animals Amendment (Puppy Farms) Bill 2021 - in Legislative Council, Referred to committee for inquiry and report, Tue 19 Oct 2021

Constitution Amendment (Virtual Attendance) Bill 2021 - in Legislative Assembly, Awaiting mover's 2R Speech, Wed 20 Oct 2021

Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Wed 20 Oct 2021

Crimes Legislation Amendment Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Thu 21 Oct 2021

Customer Service Legislation Amendment Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Wed 20 Oct 2021

Energy Legislation Amendment Bill 2021 - in Legislative Assembly, Consideration of LC amendments, Set down for a later hour of the sitting, Thu 21 Oct 2021

Modern Slavery Amendment Bill 2021 - in Legislative Council, Consideration in Committee of the Whole, Set down for a later hour of the sitting, Thu 21 Oct 2021

Payroll Tax Amendment (Payroll Tax Waiver) Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Wed 20 Oct 2021

Plastic Reduction and Circular Economy Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Wed 20 Oct 2021

Public Interest Disclosures Bill 2021 - in Legislative Council, Referred to committee for inquiry and report, Tue 19 Oct 2021

Road Transport Amendment (Prohibition of U-turns and 3-point Turns in School Zones) Bill 2021 - in Legislative Assembly, 2R Debate, Debate adjourned 5 clear days, Thu 21 Oct 2021

Uranium Mining and Nuclear Facilities (Prohibitions) Repeal Bill 2019 - in Legislative Council, 2R Debate, Debate adjourned, Wed 20 Oct 2021

Notice of motion

Children and Young Persons (Care and Protection) Amendment (Family Is Culture Review) Bill 2021 - in Legislative Council, Notice of Motion, Thu 21 Oct 2021

Companion Animals Amendment (Rehoming Animals) Bill 2021 - in Legislative Council, Notice of Motion, Wed 20 Oct 2021

Negatived

Property Services Council Bill 2021 - Negatived, Thu 21 Oct 2021

Missing apostrophe in Facebook post lands NSW real estate agent in legal hot water on The Guardian

The Salem Witch Trials : casting a spell of hysteria by Lauren Zazzara on HeinOnline Blog (note that you have remote access to HeinOnline via the external database links here)

Trafficking victims should be granted leave to remain in UK, high court rules by Diane Taylor on The Guardian

The library will be closed to visitors until Monday the 25th of October. The librarians will be working from home between 9am to 5pm and will be contactable by email libref@nswbar.asn.au.

No hard copy materials may be borrowed during this time. Any books currently on loan will not be due back until the premises reopen.

Gan v Zadravic [2021] NSWDC 533 - defamation

Mineralogy Pty Ltd v Western Australia [2021] HCA 30 - constitutional law

Palmer v Western Australia [2021] HCA 31 - constitutional law

Ridd v James Cook University [2021] HCA 32 - industrial law

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 - migration

Spencer v Coshott [2021] NSWCA 235 - Chorley exception

Wood v Secretary of the Department of Transport [2021] NSWSC 1248 - industrial law, "Transport NSW summarily dismissed Mr Wood without notice or any payment in lieu under cl 15(d) of his employment agreement, for having assisted police in a murder prosecution"

On 5 October 2021, the Uniform Rules Committee approved Amendment No 98 to the Uniform Civil Procedure Rules and an amendment to form 80.

Amendment No 98 :

The amendment is to rule 4.2 – Documents to be filed to contain certain information. It requires both legal practitioners and litigants in person to provide a phone number on filed documents and confirms the need to include an email address.

It commenced 8 October 2021, see here.

UCPR Form 80 :

Form 80 is a notice of ceasing to act, it was amended to require a former legal representative to provide the last known email address and phone number of the former client.

Version 4 of the form is at http://www.ucprforms.justice.nsw.gov.au/.

2021 Hal Wootten Lecture to mark the 50th anniversary of the University of New South Wales' Law School - presented by Jennifer Robinson

ANZUS at 70 : from Cold War to a hot Earth by Dr Jill Beard on FlagPost

The Communist Party Case : core themes and legacy by Hon Justice Michelle Gordon, 2021 CCCS Constitutional Law Conference Keynote Address

Electronic execution : where are we now? by Duncan Bedford and Jessica Laird of McCullough Robertson - considers electronic execution

Lack of room allows the purchaser room to leave by Kathy Gray of HWL Ebsworth - examines rescinding contracts for sale due to material change

Law Report (ABC) for 12 October presented by Damian Carrick - Judicial impartiality, and court disclosure obligations for electronic evidence

Off-the-plan contracts : a tale of two stories by Bede Haines of Holding Redlich - considers Anastasia Kalathas v 89 Ebley Street Pty Limited [2021] NSWSC 490 and Xu v Lindsay Bennelong Developments Pty Limited [2020] NSWSC 1692

Proclamations commencing Acts

Community Land Development Act 2021 No 6 (2021-598) — 1 December 2021 appointed as the day on which the Act commences, published LW 14 October 2021

Community Land Management Act 2021 No 7 (2021-599) — 1 December 2021 appointed as the day on which the Act commences, published LW 14 October 2021

Awaiting assent

Road Transport Legislation Amendment Bill 2021 - Awaiting Assent, Thu 14 Oct 2021

In progress

Better Regulation Legislation Amendment (Miscellaneous) Bill 2021 - in Legislative Assembly, to be reported, Thu 14 Oct 2021

Children's Guardian Amendment (Child Safe Scheme) Bill 2021 - in Legislative Council, 2R Debate, Debate adjourned, Thu 14 Oct 2021

Coastal Management Amendment Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Wed 13 Oct 2021

Companion Animals Amendment (Puppy Farms) Bill 2021 - in Legislative Council, Awaiting 2R Debate, Debate adjourned 5 calendar days, Wed 13 Oct 2021

Constitution Amendment (Virtual Attendance) Bill 2021 - in Legislative Council, Awaiting 2R Debate, Debate adjourned 5 calendar days, Wed 13 Oct 2021

Crimes Amendment (Display of Nazi Symbols) Bill 2021 - in Legislative Council, Awaiting 2R Debate, Debate adjourned 5 calendar days, Wed 13 Oct 2021

Electric Vehicles (Revenue Arrangements) Bill 2021 - in Legislative Council, 2R Debate, Debate adjourned, Thu 14 Oct 2021

Energy Legislation Amendment Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Wed 13 Oct 2021

Environmental Planning and Assessment Amendment (Infrastructure Contributions) Bill 2021 - in Legislative Council, Awaiting Minister's 2R Speech, Set down for a later hour of the sitting, Wed 13 Oct 2021

ICAC and Other Independent Commissions Legislation Amendment (Independent Funding) Bill 2021 - in Legislative Council, Awaiting 2R Debate, Debate adjourned 5 calendar days, Wed 13 Oct 2021

Local Government Amendment (COVID-19—Elections Special Provisions) Bill 2021 - in Legislative Council, Awaiting mover's 2R Speech, Set down for a later hour of the sitting, Wed 13 Oct 2021

Modern Slavery Amendment Bill 2021 - in Legislative Council, Awaiting 2R Debate, Debate adjourned 5 calendar days, Thu 14 Oct 2021

NSW Generations Funds Amendment Bill 2021 - in Legislative Council, Awaiting Minister's 2R Speech, Set down for a later hour of the sitting, Wed 13 Oct 2021

Public Interest Disclosures Bill 2021 - in Legislative Council, Awaiting 2R Debate, Debate adjourned 5 calendar days, Thu 14 Oct 2021

Voluntary Assisted Dying Bill 2021 - in Legislative Assembly, 2R Speech, in progress, Tue 12 Oct 2021

Water Industry Competition Amendment Bill 2021 - in Legislative Assembly, Awaiting 2R Debate, Debate adjourned 5 clear days, Tue 12 Oct 2021

Notice of motion

Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021 - in Legislative Council, Notice of Motion, Thu 14 Oct 2021

Government Grants (Transparency and Impartiality) Bill 2021 - in Legislative Council, Notice of Motion, Tue 12 Oct 2021

Local Government Amendment (Postal Elections) Bill 2021 - in Legislative Council, Notice of Motion, Tue 12 Oct 2021

Parliamentary Remuneration Amendment (Former Premiers' Entitlements) Bill 2021 - in Legislative Council, Notice of Motion - Text of Bill not available, Tue 12 Oct 2021

Road Transport Amendment (Prohibition of U-turns and 3-point Turns in School Zones) Bill 2021 - in Legislative Assembly, Notice of Motion, Tue 12 Oct 2021

Workers Compensation Amendment (COVID-19 Vaccination) Bill 2021 - in Legislative Council, Notice of Motion, Tue 12 Oct 2021

Lexis have provided temporary access to some books on Lexis Red until the end of the year, see the list of titles below.

Remember that Lexis Red is full of useful loose-leafs too.

If you're not subscribed to Lexis Red but want to be, please email lexisred@nswbar.asn.au with your Bar Association member number and the email address that you want to use for the platform.

Available titles

• Banking law in Australia (9th ed)
• Bradbrook and Neave's easements and restrictive covenants in Australia (3rd ed)
• Brooking on building contracts (6th ed)
• Commercial tenancy law (4th ed)
• Constitutional law in Australia (4th ed)
• Consumer protection law in Australia (3rd ed)
• The contract of employment (2nd ed)
• Control of government action : text, cases and commentary (5th ed)
• Covell and Lupton principles of remedies (7th ed)
• Crime and mental health law in NSW (3rd ed)
• Delegated legislation (5th ed)
• Duggan and Lanyon's consumer credit law (2nd ed)
• Environmental law in Australia (10th ed)
• Equity : doctrines and remedies (5th ed)
• Family provision in Australia (5th ed)
• Fisher and Lightwood's law of mortgage (3rd ed)
• Hutley's Australian wills precedents (9th ed)
• Jacobs' law of trusts (8th ed)
• Land acquisition (7th ed)
• Law of associations
• Law of charity (2nd ed)
• Law of confidentiality
• Law of costs (4th ed)
• Law of liability insurance (3rd ed)
• Law of limitation
• The law of misleading or deceptive conduct (5th ed)
• Law of succession (2nd ed)
• Lawyer discipline
• Legal professional privilege in Australia (3rd ed)
• Luntz' assessment of damages for personal injury and death (4th ed)
• Mortgagee's power of sale (4th ed)
• Nygh's conflict of laws in Australia (10th ed)
• Powers of attorney (3rd ed)
• Principles of international law (6th ed)
• Private international law in Australia (4th ed)
• The restraint of trade doctrine (4th ed)
• Security of payment in NSW, Victoria, ACT, Tasmania and SA (2nd ed)
• Statutory interpretation in Australia (9th ed)
• Unjust enrichment (2nd ed)

The library will be closed to visitors until Monday the 25th of October. The librarians will be working from home between 9am to 5pm and will be contactable by email libref@nswbar.asn.au.

No hard copy materials may be borrowed during this time. Any books currently on loan will not be due back until the premises reopen.

Holyrood, Westminster and constitutional balance : two forthcoming judgments by Nicholas Kilford on Constitutional Law Matters - considers devolution

Inquire, debate and legislate – the bounds of parliamentary privilege by Guy Humble, Tim Case and Alan Wrigley of McCullough Robertson - considers parliamentary privilege

Judgment-writing : a personal perspective - Lord Burrows, Justice of the Supreme Court of the United Kingdom at the Annual Conference of Judges of the Superior Courts in Ireland

Law Report (ABC) for 5 October presented by Damian Carrick - 'Squatters' rights', and UK health laws

Megan Davis : the road to the Uluru Statement from the Heart on Conversations with Richard Fidler - interview with Professor Megan Davis, "What people want is substantive reform… a constitutionally protected voice."

Original constitutional lessons : marriage, defence, juries, and aliens by James Edelman, Pre-edited version. Edited version to be published: Monash University Law Review (2021) volume 47 - considers constitutional law The rule of law and subordinate legislation from Statute Law Society and University College London

Charisteas v Charisteas [2021] HCA 29 - family law, apprehended bias

Edwards v The Queen [2021] HCA 28 - criminal practice

Quist v The Queen [2021] SASCA 106 - "One of the jurors has gone home last night and discussed the case with their mother... the mother advised you can't find her guilty.”

Toronto (City) v. Ontario (Attorney General) 2021 SCC 34 - whether 'unwritten constitutional principles can… serve as bases for invalidating legislation'

Lady Hale on judgments and jewellery : 'Maybe I should have worn a dragonfly' by Zoe Williams on The Guardian

Manuka honey long-running Australia-New Zealand stoush continues at tribunal by Clint Jasper on ABC News

Before the High Court : a "rational and humane Criminal Code"? Bell v Tasmania and the reach of honest and reasonable mistake of fact by Andrew Dyer in Sydney Law Review, Volume 43(3) (advance) - considers Bell v Tasmania (High Court of Australia, Case No H2/2020)

Can data be traded like shares? from Gilbert + Tobin - considers data as a commodity

Constitutional characterisation : embedding value judgements about the relationship between the legislature and the judiciary by James Stellios in Melbourne University Law Review, Volume 45(1) (forthcoming) - "considers the process of characterising a Commonwealth law with respect to a federal head of power, organising the enquiry into three distinct steps of determining the essential character of a power, the definitional character of a power and the telescopic character of a power"

Doesn't anyone check citations? by Clayton E Cramer on SSRN - examines citations

Law Report (ABC) for 28 September presented by Damian Carrick - Regulating Covid-19 misinformation and social media influencers

The prior use defence and exhaustion doctrine in intellectual property law presented by Justice Rares at the launch of issue 44(2) of the University of New South Wales Law Journal on 24 September 2021

The Wigs Podcast from Stephen Lawrence (Black Chambers), Emmanuel Kerkyasharian (Forbes Chambers), Felicity Graham (Black Chambers) and Jim Minns - S3 E5 Voller : the High Court on liability for third party comments on social media

The library will be closed to visitors until Monday the 18th of October. The librarians will be working from home between 9am to 5pm and will be contactable by email libref@nswbar.asn.au.

No hard copy materials may be borrowed during this time. Any books currently on loan will not be due back until the premises reopen.

Australia's threatened species protections are being rewritten. But what’s really needed is money and legal teeth by Stephen Garnett on The Conversation

Can AI replace a judge in the courtroom? by Dawn Lo on UNSW Newsroom

Two years after Christchurch, New Zealand makes plotting a terrorist attack a crime on The Guardian

Australian Competition and Consumer Commission v BlueScope Steel Limited (No 3) [2021] FCA 1147 - evidence

Molan v Dailymail.com Australia Pty Limited [2021] FCA 336 - defamation, racism

Alexander Litvinenko : court judgment on assassinated Russian spy has cross-border implications by Kanstantsin Dzehtsiarou on The Conversation

'They're going to meet their Waterloo' : woman wins remarkable legal battle against developer by Christopher Knaus on The Guardian

Australian Retirement Holdings Pty Ltd v Tracey Anne Higgins in her capacity as administrator of the estate of the late Monica Mary Pritchard [2021] NSWSC 1158 - land law, possession, adverse possession, actual possession

Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374 - "Machines are not persons. The fact that machines can now create inventions, which is what Dr Thaler says happened in this case, would not mean that machines are inventors within the meaning of the Act."

Will of His Late Royal Highness the Prince Philip, Duke of Edinburgh, Re The [2021] EWHC 77 (Fam) - explains why, contrary to the default position, HRH Prince Philip's will is not open to public inspection for at least 90 years