Australia: NSW Government Bulletin - 30 March 2016

Last Updated: 3 April 2016
Article by Max Dalton and Lyn Nicholson
Most Read Contributor in Australia, September 2017

Privatising or outsourcing? Consider the privacy risks: a recent AIC statement is relevant for sale of business by government

On 15 March 2016 the Acting Australian Information Commissioner released a statement addressing the privacy implications of the sale of the Dick Smith electronic customer database.  The statement has relevance for governments in the context of privatisation and the outsourcing of government agency functions to third parties.

As part of its sale of Dick Smith's assets, the company's receiver has sold the Dick Smith customer database to online retailer ''.  The Commissioner considered the sale of the Dick Smith customer database in the context of Australian Privacy Principle (APP) 6, which must be observed by an APP entity in circumstances where it uses or discloses personal information for a purpose secondary to the purpose for which it was collected. 

The Commissioner stated that the planned use of the online database by to deliver an online retail service under the Dick Smith brand is consistent with what subscribers might reasonably expect.  Furthermore, the Commissioner noted that the receivers had sent an 'opt out' email to all subscribers of Dick Smith's customer database offering customers the opportunity to unsubscribe from the database before the sale went ahead.  The Commissioner considered this to be an "appropriate step."

The Commissioner's statement provides guidance for government businesses looking to privatise or outsource their functions.  While the APPs do not apply to state and territory governments, the NSW government and its public sector agencies have obligations under the Privacy and Personal Information Protection Act 1998 (NSW) which are similar to those under the APPs.  The Commissioner's statement should therefore be heeded at both state and Commonwealth levels in the context of the sale or outsourcing of government business where this would result in personal information being disclosed or subsequently used for purposes secondary to which it was originally collected, and by a different party.  The Dick Smith 'opt out' approach may be regarded as a best practice guide.

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

New independent inspector to monitor custodial services in NSW
The Department of Justice today announced the appointment of Fiona Rafter as Inspector of Custodial Services. The Inspector of Custodial Services is an independent watchdog who reviews correctional and juvenile justice facilities and reports to parliament on issues of concern (24 March 2016).   More...

New NSW laws to hit crime gangs where it hurts
People engaged in serious and organised crime will face new orders restricting their associations and business dealings, and tough new penalties for dealing in the proceeds of crime, with the introduction of two Bills into Parliament(22 March 2016).   More...

New judges to ease pressure on District Court in NSW
A $20 million package of funding, including the appointment of two new judges, will deliver a total 256 sitting weeks for the District Court to address the criminal trial backlog, Attorney General Gabrielle Upton announced today (21 March 2016).   More...

Prison reform to improve community safety
The NSW prison system will undergo a major reform program to lift standards, strengthen accountability and help meet the Government's commitment to reduce adult reoffending by 5 per cent by 2019  (20 March 2016).   More...

Former NSW SES boss not guilty of sacking whistleblower
‎Murray Kear, the first person to be charged under New South Wales' whistleblower protection laws, says he is enormously relieved with verdict that he did not sack whistleblower (16 March 2016).   More...

Dick Smith sale
The OAIC has been advised that the customer database will be used for the purpose of delivering an online retail service under a 'Dick Smith' brand, which is in line with what subscribers might reasonably expect. Receivers have offered customers on the database the opportunity to opt out of the list prior to the sale, under Australian Privacy Principle (APP) 6 of the Privacy Act 1988 (Cth) (15 March 2016) More...

The new frontier in assaults on privacy and what the law is – or isn't – doing about it
Australia stands out as a country that does not provide an actionable right to privacy – that is, the ability to sue someone who has seriously invaded the secrets of your private life. The courts have tried to develop a privacy tort or bend the law relating to breach of confidence so that it extends to protecting personal privacy (15 March 2016).  More... 

In practice and courts

NSW Parliament:  This month in committees
Research Paper - Cyberbullying of children

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

Examination of the Auditor-General's Performance Audit Reports September 2013 – July 2014 (report published) (Tue 15).
Changes to the Routine of Business and consequential changes to the Sessional Orders (report published) (Wed 23).
Inquiry into Changes to the Routine of Business and consequential changes to the Sessional Orders (report due) (Wed 23).

Government responses
Progress of the Ombudsman's investigation 'Operation Prospect' (response received) (Tue 22).

What's new
The House in Review - Vol 56/19, 21-23 March 2016   More...
[Upcoming Events at Parliament House]

NCAT: Updated guideline on internal appeals
NCAT's G​​uideline on internal appeals has been recently updated with new information about leave to appeal and stays (17 March 2016).   More...

NSW IPC March 2016
See the March 2016 issue of the NSW IPC Bulletin here  March 2016

Published – articles, papers, reports

The Honourable Justice Stephen Rothman AM, 'Judicial Review of Administrative Decisions'
Paper presented by Rothman J to the Australian Lawyers Alliance
NSW State Conference on 11 March 2016.   More...

Australia in a century of transformative governance: a federation for communities and places
Local Government Professionals Australia, Institute of Governance and Policy Analysis
This paper has been commissioned by Local Government Professionals Australia as a contribution to debate on the future of the Australian federation and as a response to the National Innovation and Science agenda (20 March 2016).   More...


Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324
PROCEDURE – subpoena for production of recordings made by investigating police through the use of a listening device authorised by a warrant issued under the Surveillance Devices Act 2007 (the Act) – prohibition under s 40(1) of the Act against use, communication or publication of such recordings being "protected information" within s 39 of the Act – whether producing the recordings to the court could constitute a contravention of s 40(1) – whether an order can and should be made under s 43 of the Act permitting a party or parties to search the recordings "in the interests of justice" within s 43 – the procedure to be followed by a court in making a determination under s 43 – the issues to be considered in making such a determination which involves a balancing exercise.   More...

Director of Public Prosecutions (NSW) v Best [2016] NSWSC 261
ADMINISTRATIVE LAW – appeal from Local Court – magistrate dismissed charge of intimidate police – s 60 Crimes Act 1900 – whether threat made to police officer communicated through third party intermediary can support the charge – binding authority gives "intimidates" ordinary English meaning – erroneous process of statutory interpretation undertaken – no requirement for intimidatory conduct to be in the presence of the police officer – magistrate's decision set aside and matter remitted to Local Court.   More...

Quach v Health Care Complaints Commission [2016] NSWCA 49
ADMINISTRATIVE LAW – notices of motion seeking judicial review – where Court of Appeal has dismissed amended summons in underlying proceeding – where present applications not commenced by separate summons – where maker of decision to be reviewed not joined as party – motions dismissed   PROCEDURE – whether Court should make orders in terms of Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324.   More...

Deputy Commissioner of Taxation v Joseph Frangieh (No 2) [2016] NSWSC 310
PROCEDURE – civil – interlocutory issue – documents produced by Deputy Commissioner of Taxation – whether protected information pursuant to Div 355 of Sch 1 to the Taxation Administration Act 1953 (Cth) – disclosures of protected information – proceedings related to taxation laws – disclosures made in performing duties as a taxation officer – disclosures fall within exception in s 355-50(2) item 3
Administrative Decisions (Judicial Review) Act 1977 (Cth).  More...

Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26
JUDICIAL REVIEW : validity of a complying development certificate – whether proceedings time barred – whether certifier failed to consider development consent – whether irreconcilable conflict between consent and complying development certificate – proceedings not time barred – no conflict between complying development certificate and consent – complying development certificate validly issued.  More...

Health Care Complaints Commission v Khan [2016] NSWCATOD 32
ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 NSW – Professional disciplinary proceedings brought by HCCC against practitioner. Where two complaints heard together. Where it is asserted that the practitioner engaged in conduct that demonstrates his practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. Where it is asserted practitioner's medical records in respect of an 8 year old child were inadequate. Where separate complaint asserts practitioner inappropriately prescribed medications for himself, and failed to maintain adequate records in respect of his self-prescribing. Where it is also asserted practitioner suffers impairment and further asserted he is not competent to practise. Where practitioner withdraws material filed and does not seek to defend complaints. Where all complaints are found proven.   More...



Proclamations commencing Acts
Regulatory Reform and Other Legislative Repeals Act 2015 No 48 (2016-154) — published LW 24 March 2016

Bills introduced – Government – 24 March 2016
Crimes (Serious Crime Prevention Orders) Bill 2016
Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016
Fines Amendment Bill 2016

Bills passed by both Houses of Parliament
Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016

Bill introduced - Non-Government – 18 March 2016
Law Enforcement (Powers and Responsibilities) Amendment (Sniffer Dogs—Repeal of Powers) Bill 2016

Bills Progress
Privacy and Personal Information Protection Amendment (State Owned Corporations) Bill 2016
Legislative Assembly 23 March 2016 - Second reading debate continued and adjourned
This Bill is for an Act to amend the Privacy and Personal Information Protection Act 1998 to extend its application to State owned corporations that are not subject to the Privacy Act 1988 of the Commonwealth

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.

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Max Dalton
Lyn Nicholson
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