Australia: NSW Government Bulletin - 14 September 2016

Last Updated: 21 September 2016
Article by Kim Nguyen

On 5 September 2016, the NSW Court of Appeal handed down its decision in AQO v Minister for Finance and Services [2016] NSWCA 248, which was an appeal from a decision of the NCAT Appeal Panel.

The facts and decision of the NCAT Appeal Panel can be found here in a previous edition of our Bulletin. In summary, the NCAT Appeal Panel concluded that the Minister did not fall within the concept of "a person or body" in the definition of "public sector agency" in section 3(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and in section 4(1) of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act).

Relevantly the above Acts provide that "public sector agency" means any of the following:

  1. a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:
  1. is part of the accounts prepared under the Public Finance and Audit Act 1983, or
  2. is required by or under any Act to be audited by the Auditor-General, or
  3. is an account with respect to which the Auditor-General has powers under any law, or
  4. is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown...

The applicant sought a review of the Appeal Panel's decision on the question of whether a Minister is subject to the above state privacy legislation.

Despite the majority and minority Judges adopting the same principles of statutory construction, they arrived at different conclusions.

Basten JA and Ward JA found that the Minister was within the definition of "a person or body" within paragraph (d) of the definition of "public sector agency", even though the Minister was not expressly included in the definition.

The majority reasoned that the purpose of sub-paragraph (d) was to cover all persons or bodies exercising a government or public role and that a "person or body" within the meaning of paragraph (d) can be identified by reference to whether the Auditor-General audits their accounts. The majority stated there was no reason that suggested these accounts would not include the administration or working expenses of each Minister.

McColl JA dissented, stating that having regard to the text, context and purpose of sub-paragraph (d), considered in the context of each of the Acts as a whole, the legislature did not intend that a "person" in paragraph (d) included a Minister. For instance, McColl JA stated that ordinarily, a Minister would not be required to personally hold information (referred to in the PPIP Act and the HRIP Act) or to personally develop codes of practices in relation to privacy management plans, which supported the view that the Acts applied to government departments rather than Ministers.

It remains to be seen whether the decision will be subject of further appeal.

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

Lockout laws review delayed
The Callinan review into lockout laws, which was due to be released by the end of August, has been delayed until mid-September. Callinan made the formal request this week on the back of the State Supreme Court's ruling that the NSW Justice Department does not have the legal authority to declare Sydney specific CBD venues subject to the lockout laws (07 September 2016). More...

Moving ahead on new law to stop revenge porn
Attorney General Gabrielle Upton has announced the NSW Government will seek to criminalise "revenge porn", the distribution of intimate or sexually explicit images without consent (05 September 2016). Moving ahead on new law to stop revenge porn

NSW Recorded Crime Statistics quarterly update released
In the 24 months to June 2016, two of the 17 major offences showed a significant upward trend across NSW, nine were trending downward and the remaining six offences were stable. The offences trending upward were steal from retail store (up 6.3%) and fraud (up 1.7%). (05 September 2016). NSW Recorded Crime Statistics June 2016

Administrator appointed for Greyhound Racing NSW
The NSW Government has appointed experienced corporate advisor John Gibbons as Administrator of Greyhound Racing NSW (GRNSW) to manage the corporate transition of greyhound racing's governing body and affected clubs (03 September 2016). Administrator appointed for Greyhound Racing NSW

Rehabilitation to reduce reoffending in NSW
A $237 million investment to reduce criminal reoffending rates in NSW will target persistent domestic violence defendants and other high-risk offenders. High-risk offenders to attend intensive programs upon release (02 September 2016). Rehabilitation to reduce reoffending; $237m investment in reducing reoffending

Fair Trading Enforcement Report Puts Spotlight on Lawbreakers
NSW Fair Trading has released its third Quarter Enforcement Report for 2015/2016. It highlights over $777,000 in fines and penalties imposed on non-complaint businesses between 1 April and 30 June. Remaining at the top of the list are offences under the Home Building Act 1989, with 167 offences resulting in $300,000 in fines and penalties (29 August 2016). Fair Trading Enforcement Report Puts Spotlight on Lawbreakers

ICAC Operation Spicer
The conduct revealed in today's report by the ICAC is completely unacceptable and constitutes a betrayal of public trust by both sides of politics. The Government has zero tolerance for corruption (30 August 2016). Operation Spicer

In practice and courts

New Rules - High Court Amendment (Confidential Documents)
The High Court Amendment (Confidential Documents) Rules 2016 commenced on 30 August affecting: Rule 1.06; Rule 1.08; and Rule 4.07.4. The amendment complements Practice Direction No.1 of 2016. The Amendments Rules are intended to ensure that the terms of any suppression order, non-publication order or other confidentiality order made by a court in relation to documents filed in the High Court are identified at the time of filing the documents. The amendment also covers the provisions in the High Court Rules permitting inspection and copying of documents on the court file do not impede the operation of such orders.

High Court (2017 Sittings) Rules 2016
This Rule of Court appoints the High Court's days of sittings for 2017. Listed 29 August 2016, the Rules commenced on 30 August 2016. High Court (2017 Sittings) Rules 2016

Hearing 08/09/2016 - Review of the Inspector's Report to the Premier: The Inspector's Review of the ICAC
The transcript is not available. More...

ICAC: Operation Scania witness list
The Witness list for the remainder of the Operation Scania public inquiry updated Thursday 8 September 2016. Note that witness lists are subject to change (08 September 2016). Operation Scania witness list

ICAC: Prosecution briefs with the DPP and outcomes
The tables showing outcomes of ICAC-related prosecutions and briefs with the Director of Public Prosecutions. Updated 1 September 2016 (01 September 2016). Prosecution briefs with the DPP and outcomes

ICAC: Prohibited donations, fund channelling and non-disclosures exposed in NSW Liberal Party
The ICAC Operation Spicer investigation has exposed prohibited donations, fund channelling and non-disclosures in the NSW Liberal Party's 2011 state election campaign. Download the full report at the quick link at right (30 August 2016). Prohibited donations, fund channelling and non-disclosures exposed in NSW Liberal Party 2011 state election campaign

NCAT Legal Bulletin Issue 5 of 2016
The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. NCAT Legal Bulletin Issue 5 of 2016

Published – articles, papers, reports

Investigation into NSW Liberal Party electoral funding for the 2011 state election campaign and other matters
Independent Commission Against Corruption (ICAC)
This ICAC report outlines the commission's investigation into NSW Liberal Party funding for the 2011 state election campaign and other matters (30 August 2016). More...

NSW recorded crime statistics: quarterly update June 2016
NSW Bureau of Crime Statistics and Research
In the 24 months to June 2016, two of the seventeen major offences showed a significant upward trend across NSW, nine were trending downward and the remaining six offences were stable (05 September 2016). More...

Cases

Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206
GIPA Act- Copyright - Government information – Striking or unusual features – Whether a substantial part of a work had been reproduced – Significant public interest in favour of disclosure in such circumstances - Expose a person to harm or risk – Limit on exposure in context where information already revealed - Limit on exposure in context where information already exposed – Lack of significant weight to considerations against disclosure in such circumstances.
https://www.caselaw.nsw.gov.au/decision/57ce1575e4b058596cb9f323

AQO v Minister for Finance and Services [2016] NSWCA 248
STATUTORY INTERPRETATION – where applicant made privacy complaint seeking internal review of Minister's alleged conduct in obtaining and using applicant's personal and health information – Privacy and Personal Information Protection Act 1998 (NSW), s 53 – Health Records and Information Privacy Act 2002 (NSW), s 21 – whether definition of "public sector agency" in each Act extended to a Minister – Privacy and Personal Information Protection Act 1998 (NSW), s 3 – Health Records and Information Privacy Act 2002 (NSW), s 4 STATUTORY INTERPRETATION – whether later amendments to principal Act relevant to statutory interpretation STATUTORY INTERPRETATION – interpretation of legislation in pari materia WORDS & PHRASES – "person or body" – Privacy and Personal Information Protection Act 1998 (NSW), s 3 – Health Records and Information Privacy Act 2002 (NSW), s 4.
https://www.caselaw.nsw.gov.au/decision/57c8c90ee4b058596cb9f174

Fuchs v Commissioner of Police, NSW Police Force [2016] NSWCATAD 198
CIVIL AND ADMINISTRATIVE TRIBUNAL – Government Information (Public Access) Act 2009 (NSW) – reasonable searches undertaken for requested information category of documents does not exist sole document otherwise sought already released in part no further disclosure justified as the public interest against disclosure outweighs the public interest in disclosure – decision affirmed.
https://www.caselaw.nsw.gov.au/decision/57c4e96ce4b058596cb9ef55

Legislation

Proclamations commencing Acts

Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 No 16 (2016-577) — published LW 8 September 2016.

Regulations and other miscellaneous instruments

Uniform Civil Procedure (Amendment No 77) Rule 2016 (2016-578) — published LW 9 September 2016.

Legal Profession Uniform Conduct (Barristers) Amendment (Work of a Barrister) Rule 2016 (2016-570) — published LW 2 September 2016.

Legal Profession Uniform General Amendment (Receipting of Trust Money) Rule 2016 (2016-571) — published LW 2 September 2016.

Subordinate Legislation (Postponement of Repeal) Order (No 2) 2016 (2016-561) — published LW 29 August 2016.

Subordinate Legislation (Postponement of Repeal) Order (No 3) 2016 (2016-569) — published LW 31 August 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.

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Authors
Kim Nguyen
 
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