Land Acquisition

This month's report, by the NSW Legislative Council Portfolio Committee 6, on Acquisition of land in relation to major transport projects, features an overview of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and two previous NSW government commissioned reviews in relation to the Act − the 2014 Russell Review and the 2016 Housing Acquisition Review (Pratt Review). 

 It states 

 Government agencies, some state owned corporations and local councils have the authority to acquire land for public infrastructure or facilities. While the NSW Government aims to make the best use of existing state-owned land for these purposes, at times it will need to acquire private land.  

According to the NSW Government submission, land acquisition for essential infrastructure purposes is critical to the state's growing population and the government's duty to provide essential services to its citizens. Acknowledging that acquisitions of private land are not approached lightly, and only taken when there is a significant benefit to the broader public, the NSW Government outlined the importance of the acquisition process being fair and transparent, allowing landowners to make informed decisions, with appropriate support throughout the process. 

In practice, according to Property Acquisition NSW, the Centre for Property Acquisition provides an independent service to help property owners understand the property acquisition process, '[w]hen the Government makes a decision to build a project, such as a new road or hospital, it instructs the relevant agency to investigate where that project might best be located, or what might be the best route'. 

This is in conjunction with 'extensive consultation ... with the community to find out its views on where and how a project might be built'. 

Once a preferred design, route or location for the project is determined, the agency responsible may identify properties that need to be acquired to deliver the project. 

In this regard, it is important to note that both Transport for NSW and Sydney Metro (and the former Roads and Maritime Services) have legislative powers to acquire land for public purposes, as prescribed within the: • Transport Administration Act 1988 & Transport Administration Amendment (Sydney Metro) Act 2018, and • the Roads Act 1993. 

The land acquisition process 

The Land Acquisition (Just Terms Compensation) Act 1991 prescribes the process an acquiring authority must follow in order to acquire land from a landowner, as well as the principles for determining compensation on just terms. 

The objects of the Act are to: • provide a statutory guarantee that the amount of compensation will be not less than the market value at the date of acquisition • ensure compensation on just terms for landowners whose land is acquired • establish procedures which simplify and expedite the acquisition process • require an authority to acquire land designated for acquisition for a public purpose where hardship is demonstrated • encourage the acquisition of land by agreement instead of by compulsory process.1 

Typically, all legal interests in land are identified before commencing the acquisition process. The NSW Government explained that detailed planning of activities is usually conducted many weeks in advance of the announcement of a new project and the commencement of acquisitions, to ensure as many landowners are advised by the acquiring authority first. At this point, owners are provided with specific project information, and information related to their rights in relation to the property acquisition process. 

When the acquisition process formally commences, the acquiring authority will instruct an independent valuer to inspect the property. This valuer will determine the market value of the property and any additional compensation payable. Landowners are encouraged to obtain their own valuation from an independent valuer, with the reasonable costs of this being paid for by the acquiring agency. 

Once the independent valuation is complete, acquiring authorities will issue a formal letter of offer and enter into a process to reach agreement with landowners and their professional consultants. The NSW Government advised that the process of reaching agreement often involves the exchange of both parties’ completed valuation reports, followed by a number of legal and valuation meetings between both parties, with a view to reaching an agreement on compensation'. 

To comply with the legislation, the acquiring authorities are required to make a genuine attempt to acquire the property interest by agreement within a minimum six month period before commencing the compulsory acquisition process.  According to the NSW Government, '[o]ver 80% of government acquisitions of private land ... are achieved through agreement between the landowners and the acquiring authority on an independent market valuation of the property'. 

During this negotiation process any additional compensation is also determined. 

In the instance that the acquiring authority and the affected party cannot reach an agreement on the amount payable over the minimum six month negotiation period, the property may be acquired compulsorily under the Act. 

As the NSW Government explained:

... [t]he acquiring authority commences this process by issuing a Proposed Acquisition Notice (PAN) to the property owner and advising the Valuer General. Following the expiry of the PAN period [90 days], the property will be compulsorily acquired through gazettal and the Valuer General will independently determine the amount of compensation payable. 

The NSW Government claimed that '[l]ess than 20% of acquisitions proceed to compulsory acquisition, which occurs when the acquiring authority and the landowner are unable to agree on land valuation and compensation'. 

Following the compulsory acquisition of a property, the NSW Government advised that 'a person is entitled to remain [in] the building for 3 months after ... if it is the person’s principal place of residence or principal place of business'. 

 Determinations by the NSW Valuer General The NSW Valuer General is an independent statutory officer appointed by the Governor of New South Wales to oversee the State’s land valuation system. The Valuer General’s functions are primarily set out in the Valuation of Land Act 1916 and the Land Acquisition (Just Terms Compensation) Act 1991. 

As noted at 1.12, the NSW Valuer General becomes involved when a landowner and acquiring authority are unable to reach an agreement on the amount of compensation to be paid and the property is acquired compulsorily through gazettal. 

Under the Land Acquisition (Just Terms Compensation) Act 1991 the NSW Valuer General independently determines the appropriate amount of compensation due. 

Dr David Parker, NSW Valuer General explained to the committee the independent determination process:

... I assess the disturbance claims of the dispossessed and I assess the other heads of compensation. I do that with regard to the provisions of the Act, court precedent—of which there is quite a lot—and Valuer General policy. I read the claims submitted by the dispossessed and the issues list submitted by the acquiring authority and we exchange that information between each party so that there is no risk of adverse information. When completed, a preliminary report is provided to both parties for consideration before I finalise my determination. There are a series of conferences for the parties during the process and it is very common for my determination to differ from the claim made by the dispossessed or the offer made by the acquiring authority. 

Dr Parker also advised that a landowner can appeal to the Land and Environment Court if they are unhappy with the Valuer General's determination. 

Appeals to the Land and Environment Court 

As noted above, if a person is dissatisfied with the amount of compensation offered by the acquiring authority, as per the determination of the Valuer General, the person may lodge an objection with the Land and Environment Court. The Court them decides the amount of compensation that will justly compensate the person for the acquisition of the land. 

An application to the Land and Environment Court must be lodged within 90 days of the compensation notice being issued by the acquiring authority. The applicant must give the acquiring authority notice in writing that they have begun proceedings in the Court, after which the applicant and the acquiring authority will provide evidence about entitlement to and quantum of compensation. 

In nearly all cases, the Court will arrange a conciliation conference between the parties under section 34 of the Land and Environment Court Act 1979, with the purpose of assisting the parties to resolve the claim for compensation without the need for a hearing. 

If the case does proceed to a hearing, the amount of compensation determined by the Land and Environment Court could be more or less than the amount of compensation originally offered by the acquiring authority. 

A party may only appeal against the Land and Environment Court's decision on the matter on a question of law. If the order or decision was made by a commissioner, the appeal is made under section 56A of the Land and Environment Court Act 1979 and is heard by a judge of the Court. If the order or decision was made by a judge, the appeal is made under section 57 of the Land and Environment Court Act 1979 and is heard by the NSW Court of Appeal. 

Hardship acquisitions 

Under section 23 of the Land Acquisition (Just Terms Compensation) Act 1991 an authority of the state can acquire land in certain hardship circumstances, for example, if the owner is unable to sell the land at its market value because of the designation of the land for acquisition for a public purpose. 

According to the NSW Government, applications for hardship acquisition are made to the relevant authority using a Notice Requiring Acquisition of Land form from the Centre for Property Acquisition website. If an authority rejects the application for hardship or there is no response within 90 days, the applicant can seek an independent review of the application. It is then referred to a panel of independent reviewers appointed by the Minister for Water, Property and Housing. 

The NSW Government advised that a total of eight applications have been considered by this panel since its inception in April 2017, with four decisions upheld, two overturned in favour of the applicant, one withdrawn and one pending. 

Recent reviews or reports related to the property acquisition process This section outlines two previous government commissioned reviews conducted in relation to the Land Acquisition (Just Terms Compensation) Act 1991 and the implementation of recommendations from each review. According to the NSW Government, both reviews 'were undertaken with the objective of delivering a fairer, more transparent, more equitable land acquisition process for landowners, while improving consistency and accountability of government agencies engaged in the acquisition of private property'. 

In its submission to the inquiry, the NSW Government stated that the 'majority of the government’s commitments [in response to the two reviews] have been delivered or are ongoing and are monitored for continuous improvement'. 

2014 Russell Review 

In 2014, the NSW Government commissioned Mr David Russell SC to undertake a review of the Land Acquisition (Just Terms Compensation) Act 1991. The aims of the review were to: • define and clarify what real property rights or interests in real property are • recommend a set of principles to guide the process for how acquisitions of real property should be dealt with by Government • consider whether and how these principles should be reflected in current legislation, and • recommend a process for considering these principles in future legislation. 

However, the Russell Review 'did not include consideration of the level of compensation payable for the acquisitions of real property'. 

The Russell Review made 20 recommendations to government including 'several amendments to the Act and to the property acquisition process to ensure that it adequately supports participants'. 

In October 2016, the NSW Government provided a response to the Russell Review, 'supporting most of the recommendations ... and ma[king] several amendments to the Act as a result'.39 One of the recommendations from the review, Recommendation 17, was not implemented and was discussed during the current inquiry, relating to compensation being based on a 'reinstatement basis'. This will be discussed further in Chapter 3. 

2016 Pratt Review 

In 2016, the then Customer Service Commissioner, Mr Michael Pratt AM, conducted a Housing Acquisition Review with the objective of 'improving the manner in which the NSW Government deals with residents' which was 'triggered by concerns in relation to WestConnex'. 

The Law Society of NSW described the review as a high-level, citizen focused review which 'produced a series of resident "pain points", guiding principles and recommendations'. 

The Pratt Review made 20 recommendations, including the 'establishment of the Centre for Property Acquisitions and the Property Standards Group, and amendments to the administrative process'. 

In response to recommendations from this review, the NSW Government 'immediately undertook work ... to improve the property acquisition process by developing circulars and certain guidelines, and by establishing the Centre for Property Acquisition to provide a whole- of-government approach to supporting landowners through the acquisition process'. 

The Centre for Property Acquisition, based within Transport for NSW, is responsible for ensuring that all government agencies have access to consistent property acquisition standards, processes and guidelines, as well as ensuring all property owners, residents and businesses are dealt with in a respectful and empathetic way.  The property acquisition standards state that: • property owners will be treated fairly and with empathy and respect • property owners will be provided with clear information about their rights • property owners will be supported throughout the acquisition process with assistance tailored to meet their individual circumstances • the acquisition process will be consistent across projects and acquiring authorities • the Government will monitor and report publicly on the effectiveness of the land acquisition process. 

Reforms that followed this review included: • the minimum six month negotiating period to provide residents with more certainty and time to understand the process • the creation of a Personal Manager role in acquiring agencies to provide affected owners with a single point of contact for the acquisition • the offering of free counselling to residents being affected • greater access to information about the compulsory acquisition process. 

Current context and approach to the inquiry 

Land acquisition for essential infrastructure is an important step in the delivery of critical infrastructure. Transport for NSW is currently delivering the largest infrastructure program in Australia with $72 billion of investment over four years for major city-shaping and precinct projects like Sydney Metro, light rail, motorways and road upgrades. 

Reflecting on the current levels of activity, Transport for NSW confirmed that the scale of corridor preservation currently underway has not been seen since the 1950s. 

According to data provided by the Centre for Property Acquisitions, most acquisitions are undertaken by local councils, Sydney Metro and Transport for NSW. In the 2021 financial year, local councils undertook 157 acquisitions, with approximately 70 of these being partial and the remainder whole acquisitions. Sydney Metro completed 152 acquisitions, nearly all of which were full acquisitions, and Transport for NSW undertook 147 acquisitions, the majority of which were only partial (approximately 120). 

Transport for NSW advised that, as at April 2022, there were 639 property acquisitions underway, including acquisitions of interests in land. Of these, 285 are in the Greater Sydney region and 354 are in regional NSW. This was in addition to 142 live interests in land being acquired by the agency. 

In the 2021 financial year, Transport for NSW acquired property in relation to a number of projects, including the Coffs Harbour Bypass, Barton Highway, M7-Northern Road and Mulgoa Road upgrade. 

In relation to Sydney Metro, the committee was advised that there were: • 417 interests being acquired for Metro West (Westmead to The Bays), being 149 freehold interests (75 commercial and 74 residential) and 268 leasehold interests (202 commercial and 61 residential)53 • 64 acquisitions undertaken for the Metro Western Sydney Airport project, 19 of which were in Orchard Hills (and of this 19, 15 being freehold interests) • 513 interests to be acquired, across 13 buildings, for Metro West (Pyrmont & Hunter Street stations).

Robodebt

The Terms of Reference for the Royal Commission on RoboDebt note that 

in November 2019 the Federal Court of Australia declared, with the consent of the Australian Government, that a demand for payment of an alleged debt under the Robodebt scheme was not validly made; and the Australian Government had adopted the same or a similar approach in calculating and raising debts against hundreds of thousands of other individuals under the Robodebt scheme; and the Australian Government subsequently announced that over 400,000 debts raised under the Robodebt scheme would be zeroed or repaid. 

The Commission is to inquire, speedily, into the following matters -

the establishment, design and implementation of the Robodebt scheme, including:

• who was responsible for its design, development and establishment; 

• and why those who were responsible for its design, development and establishment considered the Robodebt scheme necessary or desirable; 

• and the advice, process or processes that informed its design and implementation; 

• and any concerns raised regarding the legality or fairness of the Robodebt scheme; 

• the use of third party debt collectors under the Robodebt scheme;

in relation to concerns raised about the Robodebt scheme following its implementation:

• how risks relating to the Robodebt scheme were identified, assessed and managed by the Australian Government in response to concerns raised by the Australian Taxation Office, other departments and agencies, affected individuals and other people and entities;

• and the systems, processes and administrative arrangements that were in place to handle complaints about the Robodebt scheme from members of the public affected by the scheme, their representatives or government officials and staff; 

• and whether complaints were handled in accordance with those systems, processes and administrative arrangements, and, in any event, handled fairly; 

• and how the Australian Government responded to adverse decisions made by the Administrative Appeals Tribunal; 

• and how the Australian Government responded to legal challenges or threatened legal challenges; and approximately when the Australian Government knew or ought to have known that debts were not, or may not have been, validly raised; 

• and whether the Australian Government sought to prevent, inhibit or discourage scrutiny of the Robodebt scheme, whether by moving departmental or other officials or otherwise;

the intended and actual outcomes of the Robodebt scheme, in particular:

• the kinds of non‑pecuniary impacts the scheme had on individuals, particularly vulnerable individuals, and their families; 

• and the approximate total cost of implementing, administering, suspending and winding back the Robodebt scheme, including costs incidental to those matters (such as obtaining external advice and legal costs);

Liability

In RWQ v The Catholic Archdiocese of Melbourne & Ors [2022] VSC 483 - where Cardinal Pell is the Second Defendant - McDonald J has considered the plaintiff’s claim for nervous shock against the first defendant arising from alleged sexual assault of plaintiff’s child by second defendant (the plaintiff being a parent rather than a primary victim of child abuse) and whether the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) applies to the claim. 

The Court states 

[1] The present proceeding concerns the application of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (‘the Act’) to the first defendant, the Catholic Archdiocese of Melbourne. The plaintiff claims damages against the first defendant for nervous shock which he alleges is founded on or arises from the sexual abuse of his son by the second defendant. The first defendant contends that the application of the Act is confined to claims by plaintiffs who have been subjected to child abuse (‘primary victim’). It contends that the Act has no application to the plaintiff’s claim because he does not allege that he was subjected to child abuse. The plaintiff claims to have suffered psychiatric injury upon learning of his son having been subjected to child abuse and subsequent death caused by the child abuse (‘secondary victim’). 

[2] I have concluded that the application of the Act to non-government organisations is not confined to claims founded on or arising from child abuse of the plaintiff. The plain meaning of the words ‘founded on or arising from child abuse’ in s 4(2) of the Act includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused. The contextual considerations relied upon by the first defendant do not warrant the application of the Act to non-government organisations being confined to claims brought by a plaintiff who is an alleged primary victim of child abuse. [ 

3] On the proper construction of s 4(2) of the Act, the Act does apply to the plaintiff’s claim against the first defendant. On the proper construction of s 7 of the Act, a proper defendant nominated by the first defendant would incur any liability arising from the plaintiff’s claim against the first defendant. 

Background 

[4] By a further amended statement of claim filed 4 February 2022 the plaintiff alleges: That his son (AAA) and a friend (BBB) were abused by the second defendant sometime between July and December 1996; That as a result of the abuse AAA commenced using illicit drugs at the age of 14 and used drugs consistently until his death; AAA died on 8 April 2014 from a heroin overdose caused by the psychological impact of the abuse; RWQ was informed of the abuse of AAA by a member of the SANO Task Force on 1 July 2015; As a result of learning about the abuse of his son RWQ has suffered nervous shock for which he makes a claim at common law and pursuant to Part XI of the Wrongs Act 1958 (Vic); The first defendant owed RWQ a duty to take care not to cause RWQ pure mental harm; The first defendant breached the duty to RWQ which was a cause of RWQ’s injury. [ 

5] RWQ alleges that by reason of the second defendant’s position as Archbishop, the first defendant is directly liable for the abuse of AAA and the injury to RWQ. In the alternative, RWQ alleges that the first defendant is vicariously liable for the abuse of AAA by reason of the abuse occurring in the course of the second defendant’s role as Archbishop. ... 

[12] There is no material distinction between the words ‘founded on’ and the words ‘brought in respect of’. The words ‘founded on’ are words of wide import. A claim ‘arising from’ child abuse requires a less proximate causal relationship between the claim and the child abuse than is required for a claim founded on child abuse. The use of ‘or’ in the phrase ‘founded on or arising from’ manifests a legislative intention to extend the application of the Act beyond claims against NGOs founded on child abuse. Absent the phrase ‘arising from’ it is strongly arguable that a claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused, would be a claim founded on child abuse. However, the use of the phrase ‘arising from’ puts the matter beyond doubt. A claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused is plainly a claim arising from child abuse. 

[13] If as contended by the first defendant the application of the Act to NGOs is confined to claims brought by primary victims of child abuse, the words ‘or arising from’ in s 4(2)(a) would be inutile. All words of a statute must be given meaning unless there is a good reason to the contrary. ..

[18] A claim against an NGO by a primary victim of child abuse will always be a claim founded on child abuse. If the application of the Act is limited in the way the first defendant contends, there would have been no occasion for the Parliament to have extended the application of the Act to NGOs by the inclusion in s 4(2)(a) of the words ‘or arising from’. 

[19] The extracts from the second reading speech relied upon by the first defendant lend support to its contention that the references in the speech to ‘survivors’ is a reference to primary victims of institutional child abuse. However, the following extracts from the speech suggest that the references to ‘survivors’, are not confined to primary victims of institutional child abuse: The Ellis case highlighted the problem survivors can face in seeking justice. In that case, the claimant sought to sue the Catholic Archdiocese of Sydney and the trustees of the Roman Catholic Church, for abuse perpetrated by a Catholic assistant priest in the 1970s. The NSW Court of Appeal held that the Archdiocese could not be liable, as it was unincorporated and could not be sued. The court also held that the trustees could not be sued. The fact that the trustees held and managed property for and on behalf of the Catholic Church did not make them liable for legal claims associated with church activities. The court was unable to identify a proper defendant and the case was dismissed. 

The current common-law position in Australia, based on the Ellis case, is that an unincorporated association that conducts its affairs by way of trusts cannot be held organisationally accountable in civil litigation for institutional child abuse. 

This problem appears to be unique to Australia. For example, in the United States, most churches are either incorporated entities, or are structured as a 'corporation sole' which can be sued in abuse claims. In England, case law has overcome the issues raised in Ellis. Therefore, institutional child abuse plaintiffs in Victoria, and Australia, are uniquely disadvantaged. 

The Betrayal of Trust inquiry heard from a number of survivors that unincorporated associations have used all defences available to them, including the Ellis defence, to defeat claims. For example, Mrs Chrissie and Mr Anthony Foster explained that the Catholic Church’s lawyers had strenuously defended litigation brought by them, despite having earlier accepted that the abuse had occurred. Betrayal of Trust found that the strictly legalistic approach adopted by the church failed to address the issue of genuine accountability. ... 

Analysis 

[23] The task of the Court is to construe the language of the statute. If the meaning of the words in s 4(2) of the Act has a wider application than may have been contemplated by the draftsperson, the Court must give effect to that wider meaning. ... Even if, as contended by the first defendant, the references to ‘survivor’ in the second reading speech is confined to primary victims of institutional child abuse, the plain meaning of the words in s 4(2) gives the Act wider application than claims against an NGO brought by a primary victim of child abuse. There is no reference in s 4(2) to ‘survivor’, ‘primary victim’ or ‘secondary victim’. There is nothing in the text of s 4(2) which limits its operation to a claim founded on or arising from child abuse of the plaintiff. 

[30] The first defendant contends that the word ‘plaintiff’ in s 4(2)(a) should be read as ‘child abuse plaintiff’ and that so read the Act only applies to a claim founded on or arising from child abuse of the plaintiff. The words ‘child abuse plaintiff’ do not appear in s 4(2). The only reference to the words ‘child abuse plaintiff’ in the Act is in s 1 which provides that the main purpose of the Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities. A purpose provision is a statement of legislative intent which may properly inform the construction of a statute. However a purpose provision expressed in general terms may serve little function as an aid to the construction of a more specific substantive provision. 

[31] Properly construed, ‘child abuse plaintiffs’ in s 1 means plaintiffs who commence or wish to commence a claim against an NGO founded on or arising from child abuse. If I am wrong and the words ‘child abuse plaintiffs’ in s 1 means a plaintiff who is a victim of child abuse, it does not follow that the application of the Act is limited to claims by plaintiffs who are the victims of child abuse. First, s 4(2) uses the word ‘plaintiff’ rather than ‘child abuse plaintiff’. Second, s 1 provides that the main purpose of the Act is to make provision for child abuse plaintiffs. If ‘child abuse plaintiffs’ means victims of child abuse, a construction of s 4(2) whereby the Act also applies to claims by secondary victims is not inconsistent with a main purpose of providing for primary victims of child abuse to sue non-government organisations. 

[32] In addition to relying upon extrinsic materials the first defendant submits that other provisions of the Act support a finding that the application of the Act is limited to claims founded on or arising from child abuse of the plaintiff. The first defendant draws attention to the words ‘capable of being sued and found liable for child abuse in respect of the claim’ in ss 7(4)–(5) and ss 8(8)–(9). The first defendant submits that the phrase ‘found liable for child abuse in respect of the claim’, means that the claim against the NGO which the plaintiff brings must be a claim alleging liability for child abuse of the plaintiff as defined. It must be a claim which, if it is successful, results in a finding of liability on the part of the proper defendant, to the plaintiff, for child abuse. 

[33] The words ‘capable of being sued and found liable for child abuse in respect of the claim’ which appear in ss 7(4) and (5) must be read in the context of ss 7(1) and (2). Section 7(1) provides that an NGO to which the Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued: (a) to act as a proper defendant to the claim on behalf of the NGO; and (b) to incur any liability arising from the claim on behalf of the NGO. ... 

[36] The words ‘founded on or arising from child abuse’ are used repeatedly throughout the Act: ss 4(1), 4(2), 4(3), 7(1), 7(4), 8(8), 12(1) and 13. The repeated use of these words points strongly to the conclusion that the application of the Act to NGOs is not confined to claims by primary victims of child abuse. To conclude otherwise renders the words ‘arising from child abuse’ otiose. 

[37] ... The mischief which the Act was intended to remedy is not limited to the capacity of an NGO such as the first defendant to rely upon the Ellis defence in respect of a claim brought by a primary victim of institutional child abuse. The text of the Act, particularly the repeated use of the words ‘a claim founded on or arising from child abuse’ points to the relevant mischief being the capacity of an NGO to rely on the Ellis defence in respect of a claim founded on or arising from child abuse, irrespective of whether the claim is brought by a primary or secondary victim. The text of a statute is important as it contains the words being construed. The text of s 4(2) is the clearest indicator of the mischief which the Act is intended to remedy. 

[38] The plain meaning of the words in s 4(2) is that the Act applies to an NGO if a plaintiff commences a claim against an NGO founded on or arising from child abuse. This includes a claim for nervous shock by a plaintiff whose claim is founded on or arises from child abuse of the plaintiff’s child. The contextual matters relied upon by the first defendant do not warrant a departure from the plain meaning of s 4(2). To construe ‘plaintiff’ in s 4(2)(a) as being limited to a plaintiff who is a primary victim of institutional child abuse forecloses the inquiry which the text of s 4(2) demands, namely whether the plaintiff’s claim against an NGO is founded on or arises from child abuse. 

[39] The question of whether, on the proper construction of s 4(2), the Act applies to the plaintiff’s claims against the first defendant, is to be answered in the affirmative. The consequence of this affirmative answer is that the claims made by the plaintiff against the first defendant are claims to which the Act applies. A further consequence is that the question whether, on the proper construction of s 7 a proper defendant nominated by the first defendant would incur any liability arising from the plaintiff’s claims against the first defendant, should also be answered in the affirmative. The first defendant is an NGO to which the Act applies. The plaintiff’s claim against the first defendant is a claim founded on or arising from child abuse. As such, the first defendant may nominate a proper defendant pursuant to s 7(1) of the Act to incur any liability arising from the claim on behalf of the first defendant. A proper defendant nominated by the defendant under s 7(1) will incur any liability arising from the plaintiff’s claim against the first defendant.

Productivity

The Productivity Commission's 5-year Productivity Inquiry: Key to Prosperity - Interim report proclaims 'Productivity is the key to prosperity' before commenting 

 The unevenness of productivity growth — both in its causes and effects (cost, quality and novelty) — makes it is hard to measure. But the evidence suggests that like its global peers, Australia’s productivity growth has slowed in the last two decades. 

Recapturing the productivity growth rates of the past could yield large benefits in extra income alongside a reduced working week. But productivity faces some headwinds. One is the gradual but dramatic rise of a predominantly services based economy. Ironically, productivity growth in the production of goods has seen a shift of labour and other resources into services, which have risen to make up 80 per cent of the economy. Many services are delivered in person. Many are government funded and/or delivered. Often it has proven hard to automate aspects of the service, or otherwise economise on the labour input. Hence productivity growth in most services has been slower than traditional sectors like agriculture, manufacturing and mining, where capital has replaced much labour and new technology has driven large gains in overall productivity. Moreover, globally, Australia ranks lower in service sector productivity than we do in the goods sector. 

Slower productivity growth in services is a historical pattern. It need not be our future. New approaches, such as digital technologies and the better use of data (through artificial intelligence, for example) hold great promise for broadly based productivity gains, including in services. 

This does not mean that we will ignore productivity enablers in traditional industries. Rather, the point is to broaden the policy conversation about productivity to encompass the services sectors that now employ the bulk of the workforce. 

The COVID-19 pandemic has forced the take up of technology, including online retail, telehealth and remote work. It forced new realities on the producers and consumers of services — the sector hardest hit by pandemic restrictions. The adaptations forced by the pandemic (including of government regulators) are now opening new possibilities for future productivity growth, if we can grasp them. 

But the pattern of productivity growth could look different in services. Perhaps quality improvements will be more salient than cost reductions, making it even harder to accurately measure the gains. Service innovation could be focused less on the invention of new technology and more on its use, particularly for a small open economy like Australia. Getting value from university expertise could be as much about person-to-person connections as commercialising academic IP. A focus on service sector productivity forces a rethink and subtle adjustment of many traditional policy tools. 

Global forces are creating their own productivity headwinds. The need to decarbonise the economy is one. Decarbonising represents an effort to reduce costs — specifically the cost of carbon emissions not hitherto counted in firm profits or GDP. It will require global and local innovation, strong partnerships between the public and private sector and significant new investment — partly to replace rather than add to the existing capital stock. Australia’s success in meeting this challenge efficiently will be a key determinant of our overall productivity performance in coming decades. 

Heightened geopolitical tensions and supply chain disruptions also pose a challenge. Global trade and investment have been a great benefit to Australia as a small open economy. Building supply chain resilience (and redundancy) might be attractive to some firms, but will almost certainly increase costs, and prices faced by consumers. Any fragmentation of the multilateral rules based order could crimp the benefits to Australia from trade and investment flows.

In response the Commission offers 'areas of policy focus', 'broad enablers, rather than targeted predictions'. 

The areas of policy focus are: • Innovation policy and diffusion of new processes and ideas: Policies that foster a business environment that encourages efficiency, innovation and diffusion. • Data policy, digital technology and cyber security: The economy-wide importance of data and the digital technologies that generate and use data, as general purpose technologies that could boost productivity in many areas of the economy, including services. • A productivity-friendly business environment: Limiting impediments to business investment, a flexible workforce, sound regulation and an efficient approach to decarbonising the economy. • A skilled and educated workforce: The importance of education in driving productivity growth through increasing human capital and creating settings conducive to technological breakthroughs and adoption. 

 Key points are 

 Productivity growth — producing more outputs, with the same or fewer inputs — is the only sustainable driver of increasing living standards over the long term. While economic growth based solely on physical inputs cannot go on forever, human ingenuity is inexhaustible. 

Sustained productivity growth is a relatively recent historical phenomenon. It has ensured that modern life is richer in potentially every sense compared to any time in the past.

• Over the past 200 years, productivity growth has lifted hundreds of millions of people out of poverty and has led to a dramatic increase in living standards for the vast majority of the world’s population. 

• Technological developments and inventions — including vaccines, antibiotics and statins — have driven huge increases in the quality and length of life over the past century.

 The benefits of productivity growth come in the form of:

• goods and services that cost less, in terms of number of hours employees need to work to afford them 

• goods and services whose quality improves over time 

• completely new goods and services invented to improve everyday lives. 

In practice, novel products, improved quality and reduced cost often blend together. 

As goods and services become more affordable, people can work fewer hours and consume more; over the past 120 years, the economic output of the average Australian is up 7-fold, while hours worked have consistently fallen. 

While productivity growth is an imperfect measure of rising wellbeing, lifting the rate of productivity growth is an essential element of any policy strategy aimed at increasing the collective welfare of the Australian community. Productivity growth relaxes the constraints of scarcity and opens up opportunities — for individuals, businesses and the general community. 

Australian productivity growth is at its lowest rate in 60 years. This broad-based slowdown has been observed across advanced economies.

• Australia’s productivity performance in the goods sector, including mining and agriculture, is consistently strong when compared to global peers. Australia’s services — which employs almost 90 per cent of Australian workers and accounts for about 80 per cent of economic activity — are comparatively less productive. 

• Australia has slipped down the productivity rankings recently and has instead maintained its rich country status largely through increasing the share of people in the workforce. 

The Australian economy faces challenges bouncing back from its recent poor productivity performance. These include:

• Continuing increase in the size of the services sector, where productivity growth has historically been more difficult to achieve than in the traditional goods sectors (e.g. mining, manufacturing and agriculture). 

• A fast growing, government funded and regulated, non-market services sector (e.g. aged care, schools, childcare and disability services), where a lack of competition and contestability can mask underperformance and the freedom to innovate and the sharing of new approaches can be limited. 

• Impacts of climate change and the task of decarbonising the Australian economy in line with international commitments. 

• Threats to open and flexible international markets for trade, capital and labour — which has benefited Australia enormously in the past — as some countries turn inwards in the face of increasing global tensions. 

COVID-19 prompted an acceleration in the uptake of digital technologies across the Australian economy and showed that when governments, businesses and households worked together they could adapt quickly, including to remove long standing productivity bottlenecks. 

As the economy evolves in the wake of COVID 19, increased digital capacity could lead to a productivity dividend, particular in the services sector. Taking advantage of the opportunities afforded by digital technology — such as online service delivery, artificial intelligence and data analytics — will require:

• governments and businesses continuing to adopt and adapt innovative business models. 

• a suitably skilled workforce (and training infrastructure) adept in non-routine tasks. 

• access to data, much of which is collected through businesses reliant on funding or regulation of governments, is not unduly locked down.

Productivity growth relies on the generation and spread of ideas that enable businesses and other product and service providers to deliver more (in quantity, quality or variety), from less. Institutional and policy settings play a key role in providing the frameworks and capabilities that enable and support this process. 

Considering the current context and headwinds to productivity growth, this review will focus on the broad cross sectoral enablers to productivity growth — what we must have in place to enable businesses to adapt efficiently in a rapidly changing environment. The policy areas of focus are:

• Innovation and diffusion of new technologies, processes and ideas: including openness to foreign direct investment, ideas and skills; collaborations between businesses and universities and other channels for knowledge transfer; removing unnecessary regulations that discourage the diffusion of new ideas from the global frontier; and aligning incentives for innovation and information sharing in government services. 

• Data, digital technology and cyber security: The economy wide importance of data and the digital technologies that generate and use data, as general purpose technologies that could boost productivity in many areas of the economy, including services. 

• A productivity friendly business environment: Limiting impediments to employment and investment, including through openness to trade and foreign investment, which is critical for Australia’s relatively small economy; providing policy settings that facilitate efficient emissions reductions and energy security and reliability; sound macroeconomic policy frameworks and competitive and contestable markets 

• A skilled and educated workforce: The importance of education in driving productivity growth through increasing human capital and creating settings conducive to technological breakthroughs and adoption. 

The inaugural 5 Year Productivity Inquiry released in 2017 — Shifting the Dial — provides a basis for productivity-enhancing reforms that the current Inquiry can build on. Shifting the Dial detailed a blueprint — much of which is still very relevant today — to achieve productivity growth in several sectors of the economy, including within government itself. It focussed on delivering benefits for Australian consumers.

Survivor Fraud

Serial scammer Samantha Azzopardi - out of custody in Victoria - has been arrested in Sydney after yet another instance of seeking support from a philanthropic or official body on the basis that she is a distraught victimised teenager rather than a 34 year old with a history of impersonation in Australia and overseas.

Azzopardi - who has used names such as Dakota Johnson, Emily Peet, Lindsay Coughlin, Georgia McAuliffe, Harper Hernandez, Samantha Azzapadari and Harper Hart - was last year sentenced in a Victorian court to time in prison, having faked qualifications for employment as a live-in nanny and then taking away two small children. 

In previous incidents - some of which are noted here, here and here - she pretended to be a child or teenager who was a member of a Swedish royal family, a Russian gymnast whose family died in a murder-suicide, and a young victim of human trafficking.

During her time as a nanny in Victoria she dressed in school uniform, visited a nearby counselling service and presented herself as a pregnant teenager. When was arrested she refused to provide her identity information or the children’s names, gave cryptic responses and locked her phone to prevent access. 

In 2013 she appeared in Dublin, appearing distressed and refusing to speak but indicating through hand signals that she was 14. A large-scale search followed, involving police, child welfare experts, missing persons services, Interpol, a forensic science laboratory, the immigration bureau, the domestic violence and sexual assault unit. The deception was ultimately detected and she was returned to Australia, escorted by police. 

 The incident attracted global media attention. US author Maria Konnikova wrote that the supposed victim of abuse 

 seemed dazed and distressed as she wandered down O’Connell Street, looking around timidly, a helpless-seeming terror in her eyes. … She was dressed in a purple hoodie under a gray wool sweater; tight, darkly colored jeans; and flat, black shoes. Her face was ashen. She was shivering. A passerby, stunned by her appearance, asked if she needed help. She looked at him mutely, as if not quite grasping the essence of the question. Somebody called the police. … 

She was a teen-ager—fourteen or fifteen, at most. At five feet six, she weighed just more than eighty-eight pounds. Her long, blond hair covered a spiny, battered back. Once she did talk, some days later, it became clear that she had only the most rudimentary grasp of English—not enough to say who she was or why she’d appeared as she had. But the girl could draw. And what she drew made her new guardians catch their breaths. One stifled a gasp. One burst out crying. There she was, a small stick-like figure, being flown to Ireland on a plane. And there she was again, lying on a bed, surrounded by multiple men. She seemed to be a victim of human trafficking—one of the lucky ones who had somehow managed to escape. 

Three weeks later, the girl still wasn’t talking—or, at least, nothing she said made much sense. The state was throwing everything it had at getting her help. Who was she? Where was she from? Into early November, the Irish authorities poured more than two thousand man- hours into a hundred and fifteen possible lines of inquiry. Door-to-door queries. Reviews of CCTV footage. Missing-persons lists. Visits to airports, seaports, rail stations. Guesthouse bookings. Did anyone fail to turn up, or fail to return? It was costing a pretty penny—two hundred and fifty thousand euros— but every cent was worth it if it brought them closer to helping a child regain her lost home and her fragile sanity. 

 A year later she appeared in Calgary, Canada, claiming she was a 14 year victim of abuse named Aurora Hepburn, who had escaped a kidnapper. After extensive investigation she was convicted on a mischief charge for misleading Calgary police. She was deported with a police escort on the flight to Australia.

It appears that she'd gone to Canada within six months of deportation from Ireland. In the interim she scammed people in Sydney and Perth with claims about her fictitious family, and later persuaded social services in NSW that she was a teen victim, enrolling in a school and being placed in a foster home.

In 2010, after she had attempted to use a fake Medicare card to procure services in Rockhampton she was charged with two counts of false representation, one count of intention to forge documents, and one count of contravening directions. She was convicted in Brisbane Magistrates Court, with a $500 fine. Later that year she was convicted on four counts of false representation over another fake identity, with a $500 fine. In 2012 she was sentenced to six months in prison for attempting to illegally collect social welfare benefits, suspended for a year. A few months later she reportedly pled guilty in Perth Magistrates Court to three counts of opening up accounts under a false name, one of inducing someone else to commit fraud, and one of intent to defraud by deceit. In 2017, after she used a fake California birth certificate, she was charged in NSW with "dishonestly obtaining financial advantage by deception, for the education, counselling, food, accommodation and electronics she was given while posing as Harper." She pleaded guilty and was sentenced to a year in prison. It is unclear how much time she spent in prison in Victoria before engaging in the alleged offences in Sydney this year.

Given the recurrent behaviour - imprisonment seems to have no effect on what has variously been characterised as a psychological problem or cold-blooded con by soomeone without psychiatric issues - she will presumably be appearing again in this blog in 2024 if not earlier.