Australia: NSW Government Bulletin - 16 March 2016

Last Updated: 22 March 2016
Article by Lyn Nicholson

Privacy breached? Relief is in sight in New South Wales

Privacy law in many jurisdictions, including Australia, is designed primarily to regulate those organisations that collect, hold, process and use personal information. This regulation is in many cases of little use to those who suffer harm from an invasion of privacy perpetrated by individuals such as in the case of online distribution and publishing of private intimate photos "revenge porn", or other non-consensual uses of on-line technologies. 

In the Australian Law Reform Commission (ALRC) report in 2014 "Serious Invasions of Privacy in the Digital Era" the establishment of a statutory cause of action for breach of privacy was considered and recommended. 

Under current criminal law provisions it is very difficult for a victim of cyber-stalking, revenge porn or other serious invasion of privacy in a digital context to obtain any relief and for the perpetrators to be penalised in any way. The media is full of such stories on a regular basis. 

Following the ALRC report, the NSW Standing Committee on Law and Justice conducted an enquiry into remedies for the serious invasion of privacy in NSW and issued a report earlier this month. The report makes seven  recommendations which include the introduction of a statutory cause of action for serious invasions of privacy. 

Additionally, and as a practical matter, it also recommends that the NSW Police Force implement training for its officers in relation to dealing with technology-facilitated stalking, abuse and harassment. There is also a recommendation to review the domestic violence provisions of the Crimes Act to consider additional remedies.

In a leading step for the jurisdiction it further recommends that the NSW Privacy Commissioner's jurisdiction be broadened to allow the Commissioner to hear complaints between individuals relating to alleged serious invasions of privacy, to make determinations which involve non-financial forms of redress including apologies, cease and desist orders and take down notices. The Commissioner will be able to refer a complaint to the NSW Civil and Administrative Tribunal if the Commissioner's orders are not complied with and the Tribunal will be conferred with jurisdiction to handle such claims. 

These are significant and ground-breaking recommendations which are yet to receive a formal response from the New South Wales government. Even in the absence of a formal response it is obvious that community expectations about protection from technology-facilitated invasions of privacy need upgrading.

While many commentators note that the notion of "privacy" is shifting in a technological age when people upload many of their personal details, there is still a role for matters which are of a private and personal nature and cause real harm when made public. This is considered by both the ARLC report and the Standing Committee report. We look forward to the NSW Government response.

Government Lawyers half day conference - 17 March 2016 - Change of venue
Please note, we have moved this event to the Trade & Investment Centre, Level 47, MLC Centre, 19 Martin Place, Sydney. Please click  here for more details.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this  link.  Membership is open to lawyers employed in the public sector.

In the media

10 year state wide ban for former licensee
The former licensee of Port Macquarie's Down under Nightclub has been given a 10 year state wide industry ban for repeatedly allowing intoxication and other offences. The penalty has been handed down by the Independent Liquor & Gaming Authority following a disciplinary complaint lodged by Liquor & Gaming NSW (10 March 2016). 10 year statewide ban for former north coast nightclub licensee

Strathfield cafe liquor licence suspended for serving alcohol to under 18s
Liquor & Gaming NSW Director of Compliance and Enforcement Anthony Keon said holding a liquor licence carries a high level of responsibility, especially in relation to the sale and supply of alcohol to minors (10 March 2016). Strathfield cafe liquor licence suspended for selling alcohol to under 18s

ICAC finds TAFE NSW ICT manager corruptly reaped $1.76 million
The ICAC has found that former TAFE NSW South Western Sydney Institute (SWSI) acting information and communications technology services manager Ronald Cordoba engaged in serious corrupt conduct by improperly exercising his public official functions to obtain more than $1.76 million from the SWSI and one of its contractors for his own business (04 March 2016).  ICAC finds TAFE NSW ICT manager corruptly reaped $1.76 million

New judges appointed to the NSW Supreme Court
Two new judges have been appointed to the Supreme Court. Ms Adams's appointment will take effect on and from 5 April 2016, and Mr Payne's appointment will take effect on and from 30 March 2016 (04 March 2016). New judges appointed to the Supreme Court

Performance targets to improve prison system in NSW
Public prisons will be required to meet and report on performance targets for the first time, as part of reforms designed to lift standards, reduce reoffending and improve community safety (03 March 2016). Performance targets to improve prison system

NSW Privacy Commissioner applauds the findings of the Standing Committee on Law and Justice Inquiry into Serious Invasions of Privacy in NSW
The Standing Committee on Law and Justice Inquiry into Serious Invasions of Privacy in NSW today recommended that NSW introduce a statutory cause of action for serious invasions of privacy. The Committee recommends a significant expansion of the powers of the NSW Privacy Commissioner to address claims of serious invasions of privacy (03 March 2016).  More...

NSW A-G Announces Courts Consultation Committee
NSW Attorney-General Gabrielle Upton has announced the creation of a new committee to advise her about the NSW judicial system.  The "Courts Consultation Committee" will be chaired by the Chief Justice of the NSW Supreme Court, Tom Bathurst AC, and will meet regularly to discuss "a range of matters, including workload, time frames to deal with cases, budgeting and court security"(03 March 2016). NSW A-G Announces Courts Consultation Committee

In practice and courts

ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 9 March 2016.  Prosecution outcomes and briefs with the DPP

ICAC: Operation Ricco witness list
Updated witness list for weeks 2 and 3 of the Operation Ricco public inquiry. Please note that witness lists are subject to change. The inquiry will next sit on Friday 11 March 2016.  Operation Ricco witness list

NCAT notifications

1/03/2016 - New liquor and gaming review jurisdiction for NCAT
01/03/2016 - NCAT Legal Bulletin Issue 4 of 2015​

This month in committees

Upcoming hearings
Review of the Report of the Inspector of the NSW Independent Commission Against Corruption regarding Operation 'Hale' (Mon 14).
Inquiry into elder abuse in New South Wales (Fri 18)
Review of the Report of the Inspector of the NSW Independent Commission Against Corruption regarding Operation 'Hale' (Fri 18).
Reparations for the Stolen Generations in New South Wales (Tue 22)

Inquiries receiving submissions

Inquiry into Reparations for the Stolen Generations in New South Wales, closes 31 March.

Reports

Inquiry into Remedies for the serious invasion of privacy in New South Wales (report due) (Thu 03)
Remedies for the serious invasion of privacy in New South Wales (report published) (Thu 03).
Legislation Review Digest No 3 of 2016 (Tue 08).
Review of the 2013-14 Annual Reports of the Independent Commission Against Corruption and of the Inspector of the Independent Commission Against Corruption (report published) (Tue 08).

Cases

Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59
APPEAL - CCTV footage of incident at shopping centre – whether footage should be disclosed by providing a copy or by inspection – whether there is an overriding public interest against disclosure of the information in the way requested – procedural fairness – relevance of doctrines of freedom of political communication and restraint on publication.  More...

Adams v Department of Family and Community Services [2016] NSWCATAD 46
GIPA Act – Government Information – Access – Ability of Tribunal to enquire – Section 29 Certificate CARE Act – Whether respondent has discharged onus in respect of schedule 1 GIPA Act – Care proceedings. More...

Makarov v Attorney General of New South Wales [2016] NSWCA 35
ADMINISTRATIVE LAW – judicial review – application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) for inquiry into applicant's convictions – Supreme Court Act 1970 (NSW), s 69 – declaration sought that trial judge made error of law in finding that no sense of unease or disquiet arises in respect of applicant's convictions – whether trial judge erred by not applying the appropriate test for an application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) – no error of law found – application dismissed.  More...

Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49
ADMINISTRATIVE REVIEW - government information - unreasonable and substantial diversion of resources - whether searches undertaken were sufficient - jurisdiction - failed to exercise in good faith - function conferred on officer - the approach to be taken to section 112 issues.  More...

Watts v Department of Planning and Environment [2016] NSWCATAD 42
Government Information –Cabinet information - Public Interest considerations in favour of disclosure – Public interest considerations against disclosure – Weight of evidence – Deliberative process – Prejudice – Transparency of decision making process – Absence of evidence.  More...

Legislation

NSW

Proclamations commencing Acts
Gaming Machines Amendment (Centralised Monitoring System) Act 2015 No 70 (2016-118) — published LW 11 March 2016

Regulations and other miscellaneous instruments
Gaming Machines Amendment (Centralised Monitoring System) Regulation 2016 (2016-119) — published LW 11 March 2016

Bills Introduced Non-Government – 10 March 2016
Mining and Petroleum Industry Political Donations Legislation Amendment (Corruption Risk Reduction) Bill 2016

Bills passed by both Houses of Parliament – 09 March 2016
Limitation Amendment (Child Abuse) Bill 2016

Regulations and other miscellaneous instruments
Evidence (Audio and Audio Visual Links) Amendment (Bail Exemptions) Regulation 2016 (2016-112) — published LW 4 March 2016

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Lyn Nicholson
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.