NSW Government Lawyers Linkedin Group
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 those employed in the
public sector.
In the media
Next week — government agencies and businesses
must notify you of serious data breaches
In one week, the Notifiable Data Breaches
(NDB) scheme comes into force. The scheme mandates
that Australian Government agencies and businesses with obligations
under the Privacy Act 1988 (Privacy Act)
must notify you if you are likely to be at risk of serious harm
because of a data breach (15 February 2018).
More...
Information Commissioner's report reveals access
applications on the rise
NSW Information Commissioner, CEO of the Information and
Privacy Commission NSW (IPC), and NSW Open Data
Advocate, today released the 2016/17 Report on the operation of the
Government Information (Public Access) Act 2009
(GIPA Act), which has been tabled in Parliament.
The 2016/17 Report shows the GIPA regime continues to grow and
evolve with citizens lodging more applications and agencies
releasing more information (14 February 2018).
More...
Legal body sounds alarm on 'failed' justice
targets
One of Australia's legal bodies has highlighted the
lack of co-ordinated national response measures being put in place
to reduce the "shameful disproportion" in incarceration
rates of Aboriginal and Torres Strait Islander adults and children.
The NSW Law Society president has flagged that Australia has failed
to establish 'Closing the Gap' justice targets, resulting
in a "lack [of] co-ordinated national response to the most
pressing problem facing our criminal justice system (14 February
2018).
More...
Compliance with the Notifiable Data Breaches
Scheme
Data breaches are an increasingly common threat
worldwide, and legislation across jurisdictions is scrambling to
keep up. Following the passage of the Privacy Amendment
(Notifiable Data Breaches) Act 2017, the Office of the
Australian Information Commissioner (OAIC) has introduced a new
Notifiable Data Breaches Scheme (NDBS), which
comes into effect on 22 February 2018 (13 February 2018).
More...
The Wilpinjong Three tell court mine protest was a
political act
Three people charged after a protest outside Wilpinjong
coal mine in April 2017 have told a Mudgee magistrate the untested
NSW Government laws they faced were unconstitutional. Ms Smiles, Mr
Hughes and Mr Luce face up to seven years' jail under the
offences which were controversially passed by the NSW Government
despite heavy criticism from the NSW Law Society, Bar Association
and Council for Civil Liberties (09 February 2018).
More...
New laws protect students from sexual predators
The NSW Government today introduced legislation to expand
special care laws to ensure a teacher who has a sexual relationship
with any student at their high school can face jail time. The
Justice Legislation Amendment Bill 2018 will expand the
definition of teacher under the special care offence (07 February
2018).
More...
In practice and courts
[Draft] report: review of the Code of
Conduct for Copyright Collecting Societies
The review found that the plethora of instruments regulating
collecting societies, licensees and members gave rise to confusion
as to the Code's role and recommended ways to increase
transparency. The review has proposed changes to standardise annual
reporting arrangements and to increase public awareness of Code
compliance. Submissions on the draft review must be made by 14
March. The Bureau's draft report can be accessed
here (16 February 2018).
Open Government Partnership Australia
Australia's first Open Government National Action
Plan 2016-18 comprises 15 ambitious commitments that promote
transparency, empower citizens, fight corruption, and harness new
technologies to strengthen governance. This website contains
information on our Plan and progress towards its implementation.
The next meeting is on 22 February, Canberra 2018. More...
Australian Copyright Council: Submissions
Comments on Exposure Draft of Copyright Amendment (Disability And
Other Measures) Bill – 13 February 2018.
Law Council consults on Review of Australian
Solicitors' Conduct Rules
The Law Council is undertaking a review of the Australian
Solicitors' Conduct Rules. This is the first comprehensive
review of the Rules since they were first promulgated in June 2011.
The Law Council's Professional Ethics Committee has developed a
Consultation Discussion Paper for the Review and invites
comments and submissions on the issues raised and discussed.
Read more here. The closing date for Submissions is 31 May
2018, which may be lodged here.
OAIC: Notifiable Data Breaches (NDB) scheme
Data breach notification will become mandatory as of
February 2018 for all Australian entities required to comply with
the Privacy Act 1988. When Federal Parliament passed the Privacy
Amendment (Notifiable Data Breaches) Act 2017 last year, it started
a process that means from February 22, 2018, all entities covered
by the Australian Privacy Principles will have clear obligations to
report eligible data breaches within 30 days. More...
OAIC: IC review procedure direction
The Australian Information Commissioner has issued a
written direction under s55(2)(e)(i) of the Freedom of
Information Act 1982 as to certain procedures to be followed
in Information Commissioner (IC) reviews. The
Direction applies to agencies and ministers during IC reviews and
preliminary inquiries prior to the commencement of an IC review.
The Direction has been published on the
OAIC's website and takes effect from 26 February 2018.
OAIC: Individuals affected by DIBP's February 2014
data breach invited to provide evidence of loss or damage
The OAIC is seeking to contact individuals who were in
immigration detention on 31 January 2014 and were affected by the
Department of Immigration and Border Protection (DIBP) data
breach, which occurred in February 2014
Individuals affected by DIBP's February 2014 data breach
invited to provide evidence of loss or damage See also
Immigration Data Breach Privacy Complaint Submissions close on
9 April 2018.
OAIC Key dates
Notifiable Data
Breaches (NDB) scheme Commences 22 February 2018
Immigration Data Breach Privacy Complaint Closes 4pm, 19 April
2018
Australian Government Agencies Privacy Code Commences 1 July
2018
AAT Bulletin
The AAT Bulletin is a weekly publication containing a
list of recent AAT decisions and information relating to appeals
against AAT decisions:
Issue No. 5/2018, 12 February 2018
Issue No. 4/2018, 5 February 2018
Current Inquiries
Judiciary Amendment (Commonwealth Model Litigant
Obligations) Bill 2017
The Senate referred the Judiciary Amendment
(Commonwealth Model Litigant Obligations) Bill 2017 to the
Legal and Constitutional Affairs Legislation Committee for inquiry
and report by 8 May 2018. The deadline for submissions to the
inquiry is 28 February 2018. More...
The adequacy of existing offences in the Commonwealth
Criminal Code and of state and territory criminal laws to capture
cyberbullying
On 7 September 2017 the Senate referred the below matter
to the Legal and Constitutional Affairs References Committee for
inquiry and report by 29 November 2017. On 19 October 2017 the
Senate extended the committee's reporting date to the last
sitting day in March 2018, which is 28 March 2018. More...
NSW
NCAT: Commencement of strata building bond and
inspections scheme
Under Part 11 of the Act, NCAT can make the following
orders about the new building bond and inspections scheme- Contract
price of building work to determine the building bond amount and
Access to the lot for an inspection or to rectify defective
building work. The
Strata application form has been updated to reflect these
changes (09 February 2018).
Joint Protocol to reduce the contact of people with
disability with the criminal justice system
The NSW Ombudsman's office has developed a
Joint Protocol for disability services and police. The Joint
Protocol aims to reduce the frequency of police involvement in
responding to behaviour by people with disability living in
supported accommodation. This will facilitate collaboration between
police and residential services for a coordinated approach (29
January 2018).
More...
NSW Law Society: Cybersecurity warning
Law practices have received emails from people purporting
to request legal services with attachments containing malware. To
preserve your cybersecurity, think carefully before opening
attachments from unknown addresses (29 January 2018).
More...
Community to have its say on ancient mercy law
Attorney General Mark Speakman has called for public
submissions on whether petitions for mercy and their outcomes
should be made publicly available. The review will deliver its
recommendations to the NSW Government by 6 April 2018. Anyone
interested in making a submission should do so by close of business
9 February 2018. To lodge a submission to the review, please visit
the NSW Government
Have Your Say website.
ICAC: Prosecution briefs with the DPP and outcomes
Tables of prosecution briefs with the DPP and outcomes.
Last updated 15 February 2018.
More...
Published – articles, papers, reports
Reconciliation Action Plan February 2018–July
2019
ANAO: 15 February 2018
The ANAO confirms its commitment to reconciliation with
Aboriginal and Torres Strait Islander peoples through the
development and implementation of this Reconciliation Action Plan
(RAP). More...
Review of Code of Conduct for Australian Copyright
Collecting Societies: draft report
Bureau of Communications and Arts Research
(BCAR); Department of Communications and the Arts
(Australia): 14 February 2018
The Department of Communications and the Arts is seeking
submissions from stakeholders on the draft findings and
recommendations outlined in this draft report, and any other issues
relevant to the inquiry terms of reference. More...
Review of Copyright Online Infringement Amendment:
consultation paper
Department of Communications and the Arts
(Australia): 13 February 2018
The Online Infringement Amendment enables a copyright owner
to apply to the Federal Court of Australia to block access to an
online location operated outside Australia with the primary purpose
of infringing (or facilitating infringement of) copyright content.
This review supports the Australian government's commitment to
review the operation of the Online Infringement Amendment. More...
Management of the Australian government's Register
of Lobbyists
Australian National Audit Office: 14 February
2018
The objective of the audit was to assess the effectiveness of
the Department of the Prime Minister and Cabinet's management
of the Australian government's Register of Lobbyists. It
suggests that improvements could be made to communications,
compliance management and evaluation for the code and the register.
More...
Arrangements for the postal survey
Senate Finance and Public Administration References
Committee: 13 February 2018
The committee wishes to stress that the focus of this
inquiry, as per the terms of reference, is not the legalisation of
same-sex marriage, but rather to scrutinise the process that the
government chose to undertake in order to reach the point where the
national parliament would consider legislation on this matter. More...
Report of the Inquiry under the Charitable
Fundraising Act 1991 into the Returned and Services League of
Australia (NSW branch), RSL Welfare and Benevolent Institution and
RSL Life Care Limited
Patricia A. Bergin; Department of Finance, Services
and Innovation (NSW): 12 February 2018
This inquiry, headed by former NSW Supreme Court Justice,
Patricia Bergin SC, followed allegations of rorting and
embezzlement within the RSL's New South Wales branch. More...
Cases
Maxcon
Constructions Pty Ltd v Vadasz [2018]
HCA 5
Appeal dismissed. Administrative law – Judicial
review – Building and Construction Industry Security of
Payment Act 2009 (SA) – Where subcontract provided for
sum to be paid to subcontractor after issue of certificate of
occupancy – Where issue of certificate of occupancy required
certification from builder that building work performed in
accordance with head contract – Where adjudicator appointed
to determine disputed payment claim – Where adjudicator
determined provisions of subcontract ineffective because pay when
paid provisions – Whether adjudicator's determination
involved error of law – Whether adjudicator's
determination should be quashed.
Administrative law – Judicial review – Availability of
certiorari – Error of law on face of record – Whether
Building and Construction Industry Security of Payment Act
2009 (SA) ousts jurisdiction of Supreme Court of South
Australia to make order in nature of certiorari to quash
adjudicator's determination for non-jurisdictional error of law
on face of record.
South Coast Hunters Club v Eurobodalla Shire Council
[2018] NSWCATAD 42
ADMINISTRATIVE REVIEW – Government Information
(Public Access) – application for review by person aggrieved
by decision to release information – no increased risk to
public safety – information not shown to be of competitive
commercial value – information not provided in
confidence.
CNS v Transport for NSW
[2018] NSWCATAD 40
ADMINISTRATIVE Law - PRIVACY – Personal Information
– Whether reasonably necessary to collect information for
allied purpose – Right to anonymous travel - Travel History
-– Purpose of collection unrelated to collection –
Purpose of collection unrelated to use – General right to
privacy.
Johnson v Dibbin; Gatsby v Gatsby
[2018] NSWCATAP 45
CONSTITUTIONAL LAW – judicial power – whether
Civil and Administrative Tribunal (NSW), NCAT, exercises judicial
power – whether NCAT exercises judicial power when
determining matters under the Residential Tenancies Act
2010 (NSW) – NCAT exercises judicial power
CONSTITUTIONAL LAW – Chapter III courts – defining
characteristics of Chapter III courts – whether Civil and
Administrative Tribunal (NSW), NCAT, a "court of a State"
within Chapter III – NCAT is a court of a State for the
purposes of Chapter III COURTS AND TRIBUNALS – Civil and
Administrative Tribunal (NSW), NCAT – jurisdiction of NCAT
– whether Tribunal has authority to adjudicate in matters
under the Residential Tenancies Act 2010 (NSW) between residents of
different states – NCAT has authority to adjudicate COURTS
AND TRIBUNALS – courts of record – Civil and
Administrative Tribunal (NSW), NCAT – whether NCAT a court of
record – NCAT a court of record.
ZFV & anor v ZFW & ors
[2018] NSWCATAP 44
HUMAN RIGHTS — Tribunals, commissions and other
authorities — Civil and Administrative Tribunal –
procedural fairness — application of hearing rule HUMAN
RIGHTS — Legislation — application of failure to give
parties notice of hearing as required by s10 of Guardianship
Act 1987 (NSW).
Cooper v NSW Ministry of Health
[2018] NSWCATAD 37
ADMINISTRATIVE LAW - Government information - access
– Cabinet Information – general principles - reasonable
grounds – temporal scope – subject matter scope -
revealing "the position" of a particular Minister.
Stuart v Commissioner for Fair Trading [2018] NSWCATAD
39
ADMINISTRATIVE LAW – administrative tribunals
– procedure – distinction between stay of orders and
order temporarily granting a licence – whether member of
outlaw motor cycle gang is a "close associate" of an
applicant for an operator licence under the Tattoo Parlours Act
2012 (NSW) – public interest considerations.
David DeBattista v Minister for Planning [2018] NSWLEC
8
PRACTICE AND PROCEDURE – notice of motion –
leave sought to adduce expert evidence – interrogatories
– enforcement proceedings – judicial review –
whether evidence relevant to decision under review –
relevance matter for trial judge – motion allowed.
Legislation
Commonwealth
Australian
Human Rights Commission Repeal (Duplication Removal) Bill
2018
Introduced Senate: 15/02/2018 - The purpose of the
Australian Human Rights Commission Repeal (Duplication Removal)
Bill 2018 is to remove commonwealth involvement in running a public
funded commission to advocate on human rights. The bill anticipates
that states and territories will take up this advocacy and
responsibility. The bill does not alter the Age Discrimination
Act 2004, the Disability Discrimination Act 1992, the
Sex Discrimination Act 1984 and the Racial
Discrimination Act 1975, including the relevant offence
provisions in these Acts. Aggrieved plaintiffs will retain the
right to take action under the relevant anti-discrimination regimes
in the States and Territories, where applicable. Persons aggrieved
under those Acts can seek federal authorities' enforcement of
the offence provisions of those Acts.
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2018
House of Representatives: Introduced and read a
first time 15/02/2018 - Amends the: Enhancing Online Safety Act
2015 to: prohibit the posting of, or threatening to post, an
intimate image without consent on a social media service, relevant
electronic service or a designated internet service; establish a
complaints and objections system to be administered by the eSafety
Commissioner; provide the commissioner with powers to issue removal
notices or remedial directions; establish a civil penalty regime to
be administered by the commissioner; and enable the commissioner to
seek a civil penalty order from a relevant court, issue an
infringement notice, obtain an injunction or enforce an
undertaking, or issue a formal warning for contraventions of the
civil penalty provisions; and Broadcasting Services Act
1992 to make a consequential amendment.
Crimes Amendment (National Disability Insurance Scheme—Worker
Screening) Bill 2018
House of Representatives Second reading moved
15/02/2018 - The amendments in this Bill would create an exception
for convictions of persons who work, or seek to work, with people
with disability in the National Disability Insurance Scheme
(NDIS) so that those convictions can be disclosed
to, and taken into account by, Commonwealth, State and Territory
agencies, to enable State and Territory worker screening units to
determine whether the person is suitable to work with people with
disability in the NDIS.
Identity-matching Services Bill 2018
House of Representatives Introduced and read a first time
Second reading moved 07/02/2018. The Bill will provide explicit
legal authority for the Department of Home Affairs (Home Affairs)
to collect, use and disclose identification information in order to
operate the technical systems that will facilitate the
identity-matching services envisaged by the Intergovernmental
Agreement on Identity Matching Services (IGA).
NSW
Bills introduced Non-Government
Family Impact Commission Bill 2018
Medicinal Cannabis (Compassionate Access) Bill 2018
Bills passed by both Houses of Parliament
Vexatious Proceedings Amendment (Statutory Review) Bill
2018
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.