In the media
Covid safe: Australian government launches coronavirus
tracing app amid lingering privacy concerns
Australians can now download the government's
controversial coronavirus contact tracing app, Covidsafe, amid
ongoing concerns about privacy of those using the app. The Health
minister has published a determination that prevents the data being
used for other purposes, including for law enforcement purposes or
court orders, and the data must be held within Australia (26 April
2020).
More...
COVID 19 arrangements for electronic witnessing of legal
documents
President of the Law Society of NSW has welcomed the
passing of an emergency regulation which allows for the witnessing
of legal documents to be conducted electronically during the
COVID-19 pandemic. The temporary provisions, which have been added
to the Electronic Transactions Regulation 2017, provide altered
arrangements for the witnessing of documents (23 April 2020).
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Domestic Violence in the wake of COVID-19 in NSW
Concerns have been raised that social isolation strategies
implemented to address the COVID-19 pandemic may inadvertently
increase the incidence of domestic violence. The Bureau of Crime
Statistics and Research have compiled preliminary statistics to
monitor any early signs of increase in domestic violence (23 April
2020).
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OAIC takes stand over virus transparency
The Office of the Australian Information Commissioner
(OAIC) has joined with its State and Territory
counterparts to issue a public statement on the importance of
transparency during the current Coronavirus pandemic (21 April
2020). More...
How these agencies are breaching patient privacy
Privacy experts have criticised Services Australia and
AHPRA for sharing thousands of private health records every year
without informing patients, a practice that appears to contradict
the government's own guidelines (21 April 2020).
More...
$5000 on-the-spot fine to protect all workers
Anyone coughing or spitting on any worker will face a
$5000 on-the-spot fine with tough measures introduced to protect
health care staff and police now extended to all workers. Health
Minister Brad Hazzard said anyone at work or travelling to or from
work would be protected, after several recent incidents involving
retail and transport workers (19 April 2020). More...
The Family Court of Australia and Federal Circuit Court
of Australia formalises support for alternative dispute resolution
with the introduction of an Arbitration List
To support the development and promotion of arbitration
for property matters in family law, the Family Court of Australia
and the Federal Circuit Court of Australia (the Courts) have
established a new specialist list in each Court, to be known as the
National Arbitration List (16 April 2020).
More...
Appointment of The Family Court and Federal Circuit
Court Chief Executive Officer and Principal Registrar
The Morrison Government has appointed Mr David Pringle as
the Chief Executive Officer and Principal Registrar of the Family
Court of Australia and CEO of the Federal Circuit Court of
Australia (16 April 2020).
More...
LCA: High Court decision highlights ongoing
vulnerability
While the Australian Federal Police raid on News
Corporation journalist Annika Smethurst was found to be unlawful by
the High Court, the judgment highlights the Law Council's
continued concerns about the ongoing vulnerability of public
interest journalism (16 April 2020).
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HRLC: Press freedom remains under threat despite High
Court ruling
Today the High Court unanimously ruled that the warrant
relied on by the Australian Federal Police to raid the home of News
Corporation journalist Annika Smethurst was invalid, and the raid
was therefore unlawful. However laws that criminalise public
interest reporting remain in place, leaving journalists and
whistleblowers exposed to police investigation and prosecution (15
April 2020).
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Practice and courts
Federal Circuit Court of Australia: Practitioner and
litigant guide to virtual hearings and Microsoft Teams
This Guide is for proceedings conducted in the Family
Court of Australia and the Federal Circuit Court of Australia (22
April 2020).
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High Court of Australia: Practice Notes
Evidence by Affidavit
High Court of Australia, 3 of 2020 - This Practice
Direction takes effect on 15 April 2020.
The Registrar may accept the filing of the affidavit signed by the
deponent but not sworn or affirmed before a qualified witness on
the understanding that, if required, the affidavit will later be
sworn or affirmed when circumstances allow.
Law Council of Australia Submissions
21 April 2020— Law Council.
More...
Australian Bushfires Disaster Emergency Declaration
— Understanding your privacy obligations
The Attorney-General has made the Privacy
(Australian Bushfires Disaster) Emergency Declaration (No. 1)
2020 (the emergency declaration) under Part VIA of the
Privacy Act 1988 (Cth) (Privacy Act). The emergency
declaration was made in response to bushfires in Australia
resulting in death, injury and property damage occurring from
August 2019 into 2020.The emergency declaration expires on 20
January 2021
Current Senate Inquiries
Select Committee on COVID-19. More...
Environment and Communications References
Committee
On 16 March 2020, the Committee presented a progress
report recommending that the Senate grant an extension of time to
report until 20 May 2020. More...
Legal and Constitutional Affairs References
Committee
On 23 March 2020 the committee's reporting date was
extended to 9 September 2020. More...
Legal and Constitutional Affairs Legislation
Committee
Report by 20 November 2020. More...
NSW
DCJ: COVID-19. Video tech for witnessing legal
documents
Last published on 22 Apr 2020.
More...
DCJ: COVID-19. Free help for pandemic legal issues
Last published on 15 April 2020.
More...
NSW Privacy Commissioner Statement: use of mobile phone
data for managing the COVID-19 pandemic
The NSW Privacy Commissioner, Ms Samantha Gavel, has
issued a statement about the use of aggregated mobile phone data to
assist in the NSW Government COVID-19 response (18 April 2020)
COVID - 19: Information for Attending Court – as
at 20 April 2020
The New South Wales Bar Association's
consolidated guide to COVID-19-related court arrangements has
again been updated in terms of recent developments
Consultations
Statutory review of the Crimes (Serious Crime Prevention
Orders) Act 2016
The NSW Department of Communities and Justice is conducting a
review of the Crimes (Serious Crime Prevention Orders) Act 2016 to
determine whether the policy objectives remain valid and the terms
remain appropriate for securing those objectives. Submissions close
on 22 May 2020.
Cases
Re Young; Re Young [2020] HCA
13
High Court – Leave to issue or file proceeding
– Removal of proceedings – Where causes said to be
pending in Supreme Court of New South Wales said to involve matter
"arising under any treaty" within meaning of s 75(i) of
Constitution – Where applications for removal of causes into
High Court under s 40 of Judiciary Act 1903 (Cth) were refused
– Where applicant sought to file documents in the form of
applications for leave to appeal and accompanying summons –
Where Registrar directed to refuse to issue or file documents
without leave of a Justice first had and obtained – Whether
appellate jurisdiction of High Court extends to hearing and
determining appeal from order granting or refusing removal of cause
– Whether order is under implied exception to appellate
jurisdiction prescribed by Parliament within meaning of s 73(i) of
Constitution – Whether conditions for grant of leave to
appeal established.
Words and phrases – "abuse of process",
"appellate jurisdiction", "cause",
"exception", "federal jurisdiction",
"incidental judicial power", "leave to issue or
file", "order granting or refusing removal of a
cause", "original jurisdiction", "preliminary
and discretionary nature", "proceedings inter
partes", "removal", "special leave",
"substantial injustice", "treaty".
Smethurst v Commissioner of Police
[2020] HCA 14
Held: Search warrant was invalid Police – Search
warrants – Validity of warrant – Where police searched
premises in reliance on warrant – Where police retained
material copied from first plaintiff's mobile phone in reliance
on warrant – Where warrant relied upon reasonable grounds for
suspecting commission of Commonwealth offence – Where warrant
purported to set out offence against s 79(3) of Crimes Act 1914
(Cth) – Whether warrant misstated substance of s 79(3) of
Crimes Act – Whether warrant failed to state offence to which
it related with sufficient precision.
Injunctions – Mandatory injunction – Principles
applicable – Where plaintiffs sought mandatory injunction
requiring destruction or delivery up of material obtained under
invalid warrant – Where plaintiffs sought injunction
restraining police from making information available to prosecuting
authorities – Whether statutory basis for injunction –
Whether plaintiffs identified legal right to support injunction in
auxiliary jurisdiction – Whether consequences of trespass
provide basis for injunction – Whether s 75(v) of
Constitution provides basis for injunction – Whether damages
inadequate – Whether injunctive relief should be refused on
discretionary grounds. Constitution, s 75(v); Australian Federal
Police Act 1979 (Cth), s 8.; Crimes Act 1914 (Cth), Pts IAA, VII;
ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3); Judiciary Act 1903 (Cth), s
32.
Australian Information Commission v Facebook
Inc [2020] FCA 531
PRACTICE AND PROCEDURE – Alleged contraventions
of s 13G of the Privacy Act 1988 (Cth) – Interlocutory
Application – Application for interim suppression and
non-publication orders under s 37AI of the Federal Court of
Australia Act 1976 (Cth) – Application for service outside of
Australia pursuant to r 10.43(3) and (4) of the Rules –
Application for substituted service under r 10.24 of the Federal
Court Rules 2011 (Cth) – Application granted
Godla v Commissioner of Police, New South Wales Police
Force [2020] FCA 489
ADMINISTRATIVE LAW – application for judicial
review of decision under federal statute made by an agent of a
state decision-maker, the Commissioner of Police, NSW –
pseudonym application – where the Commissioner's agent
refused applications by the applicant for permission to travel as
required by s 271A.1 of the Criminal Code (Cth) in circumstances
where the applicant was named on the NSW Child Protection Register
– where the Minister for Foreign Affairs cancelled the
applicant's passport and refused to reinstate the
applicant's passport – whether decision-makers made
reviewable errors under s 5, s 6, or s 7 of the Administrative
Decisions (Judicial Review) Act 1977 (Cth) – no other viable
grounds of review established – application dismissed with
costs
Herbert v New South Wales Land and Housing
Corporation [2020] NSWCA 74
CIVIL PROCEDURE – appeal – question of law
– request to issue subpoena – refusal of request by
Registrar – review of Registrar's decision CIVIL
PROCEDURE – application to vacate hearing date –
termination of residential tenancy agreement – effect of
COVID-19 pandemic – whether moratorium on rental tenancy
evictions – Residential Tenancies Regulation 2019 (NSW), Pt
6A CIVIL PROCEDURE – appearance – failure to file
notice of appearance – Uniform Civil Procedure Rules 2005
(NSW), rr 51.5; 6.9; 6.11 CONSTITUTIONAL LAW – operation of
State law – whether inconsistent federal law –
Government policy not a law – no notice given to Attorneys
General – Judiciary Act 1903 (Cth), s 78B –
Constitution, s 109 – no inconsistency
Hamzy v Commissioner of Corrective Services and the
State of NSW [2020] NSWSC 414
Administrative Law – Judicial Review –
Where plaintiff a high risk restricted inmate in a correctional
facility administered by the defendant – Challenge to
decision of the defendant requiring legal practitioners to undergo
criminal records enquiry as part of the approval process to visit
high risk restricted inmates – Whether decision unlawful
– Whether decision unreasonable – Whether decision
infringed or removed the right of a high risk inmate to choose a
legal practitioner Administrative Law – Judicial Review
– Where plaintiff a high risk restricted inmate in a
correctional facility administered by the defendant –
Challenge to decision of the defendant to deny the plaintiff access
to AVL facilities for the purposes of conferring with his legal
representative – Where the defendant took into account the
fact that conversations over AVL could not be monitored –
Where defendant also took into account the security risk which
would arise if the plaintiff were granted access – Whether
defendant's decision was unreasonable Administrative Law
– Judicial Review – Where plaintiff a high risk
restricted inmate in a correctional facility administered by the
defendant – Challenge to the practice of the defendant to
permit limited monitoring of calls between the plaintiff and his
legal representative – Whether such a practice unlawful
– Whether such a practice amounted to an impermissible
intrusion into legal professional privilege Statutory
interpretation – Prison legislation – General
principles applicable to the interpretation of such legislation
– General reluctance of Courts to interfere in matters of
prison administration – Necessity to recognise the difficulty
of the task of managing prisons – General recognition of
Parliament's intention to give those responsible for the
management of prisons a broad discretion commensurate with their
task Human Rights Law – Where plaintiff a high risk
restricted inmate in a correctional facility administered by the
defendant – Where defendant required that communications to
which the plaintiff was party during visits in custody be in
English – Where plaintiff asserted a right to be able to
speak Arabic – Whether the right to freedom of expression
encompassed a right of the plaintiff to be able to speak in the
language of his choice – Whether provisions of the
regulations pursuant to which the defendant acted in requiring that
conversations be conducted in English were invalid constitutionally
or otherwise Words and phrases – "in English"
– "based on"
Klewer v Director of Public Prosecutions
(NSW) (No 2) [2020] NSWCA 69
ADMINISTRATIVE LAW – judicial review –
applicant subject to vexatious proceedings order – whether
applicant required leave under the Vexatious Proceedings Act 2008
(NSW) to institute an appeal to the District Court against her
convictions and sentences in the Local Court - whether applicant
required leave under the Vexatious Proceedings Act to commence
judicial review proceedings in the Court of Appeal in circumstances
where she did not require leave to commence proceedings in the
court whose decision was the subject of the application for
judicial review. VEXATIOUS PROCEEDINGS – applicant subject to
vexatious proceedings order – whether applicant required
leave under the Vexatious Proceedings Act 2008 (NSW) to institute
an appeal to the District Court against her convictions and
sentences in the Local Court - whether applicant required leave
under the Vexatious Proceedings Act to commence judicial review
proceedings in the Court of Appeal in circumstances where she did
not require leave to commence proceedings in the court whose
decision was the subject of the application for judicial review
Learmouth v Secretary, Department of
Education [2020] NSWCATAD 109
ADMINISTRATIVE LAW – government information
– reasonable searches – disclosure against public
interest
Scott-Mackenzie v Independent Liquor and Gaming
Authority [2020] NSWCATAD 108
ADMINISTRATIVE REVIEW — grant of liquor licence
— whether the overall social impact of the licence ... will
not be detrimental to the well-being of the local or broader
community
DTN v Commissioner of Police
[2020] NSWCATAD 107
PROCEDURE - Time for lodgement of Application under
Privacy and Personal Information Protection Act 1998 (NSW) –
"the time the applicant first became aware" –
imputed knowledge - agency – materials supplied to the
applicant's former solicitor but not to the applicant
Dezfouli v Commissioner of Police
[2020] NSWCATAD 103
ADMINISTRATIVE LAW – government information
– access application – prejudice supply of information
– reveal identity of informant – personal information
– whether public interest considerations against disclosure
outweigh public interest considerations in favour of disclosure
Legislation
NSW
Regulations and other miscellaneous instruments
Child
Protection (Working with Children) Amendment (COVID-19 Proof of
Identity) Regulation 2020 (2020-168) — published LW 22
April 2020
Electronic
Transactions Amendment (COVID-19 Witnessing of Documents)
Regulation 2020 (2020-169) — published LW 22 April
2020
Administrative
Arrangements (Administration of Acts—Amendment No 3) Order
2020 (2020-149) — published LW 15 April 2020
Administrative
Arrangements (Administrative Changes—Ministers and Public
Service Agencies) Order 2020 (2020-150) — published LW 15
April 2020
Legal
Profession Uniform Law Application Amendment (Savings and
Transitional) Regulation 2020 (2020-151) — published LW
17 April 2020
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.