Australia: NSW Government Bulletin - 26 July 2017 - Part 2

Last Updated: 28 July 2017
Article by Christine Jones
Most Read Contributor in Australia, July 2017

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In the media

Don't leave corruption in the dark
New research released today by the Australia Institute shows that a federal ICAC may not be effective in exposing or investigating corruption and misconduct unless it holds public hearings (21 July 2017). More...

Shining a light on corruption
This report examines the effectiveness of a national integrity commission without the ability to hold public hearings. 80 per cent of Australians support establishing a national integrity commission, and 78 per cent support establishing one with public hearings (21 July 2017). More...

ASIC Enforcement Review Taskforce consults on ASIC's telecommunications intercept powers
The Government welcomes today's release of the ASIC Enforcement Review Taskforce position paper titled 'ASIC's Access to Telecommunications Intercept Material'. As part of its review the Taskforce is examining the adequacy of ASIC's information gathering powers, including information obtained from telecommunications interception warrants (20 July 2017). More...
The position paper is available on the Treasury website. Interested stakeholders are invited to comment on the positions put forward by the Taskforce. Submissions for the consultations will close on 17 August 2017.

Draft Bill aims to prevent family violence victims being cross-examined by their abusers
The Attorney-General's Department has released an exposure draft of a Bill that would prevent the cross-examination of family and domestic violence victims by their perpetrators during the course of family law proceedings (20 July 2017). More...

Ban on live exports 'irrational, unjustified', court told as farmers' class action begins
A group of cattle farmers seeks $600 million in compensation over the Federal Government's 2011 live export ban (19 July 2017). More...

Protecting family violence victims from being cross-examined by alleged perpetrators
The draft amendments see a legislative ban on direct cross-examination where one party is convicted or charged of an offence involving violence against another party. The court will also have discretion to disallow direct cross-examination in other matters where there are allegations of family violence. To maintain procedural fairness, the court will be able to appoint a person to act as an intermediary to ask questions in cross examination on behalf of a party (17 July 2017). More...
The draft legislation, consultation paper and information on how to make a submission are available at the Attorney General's department website. Submissions can be lodged until 25 August 2017.

Defence support to domestic Counter-Terrorism arrangements
The Australian Defence Force will expand its role in assisting the states to respond to terrorist incidents under new changes being made by the Turnbull Government. The overhaul will make it easier for Defence to work together with Federal, State and Territory Police in the event of a terrorist incident (17 July 2017). More...

NSW tenancy agreements potentially unenforceable against interstate landlords
The legal loophole emerged after the Court of Appeal declared in February that the NSW Administrative and Civil Tribunal, which handles a range of small civil disputes, has no jurisdiction if one party lives in another state (14 July 2017). More...

Former Australian of the Year finalist says she has been 'bullied' at ICAC hearing
Eman Sharobeem lashes out on the final day of hearings at the Independent Commission Against Corruption, declaring she has been "abused, bullied and terrorised" (13 July 2017). More...

Fair use, or free use? Behind the interests and alliances that stand to gain from changes to Australia's copyright law
Lobby groups behind a high profile campaign on Wikipedia urging a switch to US-style copyright law in Australia have links to interests, including multinationals such as Google, which will gain substantially from any change to a so-called "fair use" system (12 July 2017). More...

ABS collects Uni for data processes
The Australian Bureau of Statistics (ABS) has signed a Memorandum of Understanding with Deakin University to improve its data collection processes (11 July 2017). More...

ASD sets new model against cyber threats
The Australian Signals Directorate (ASD) has issued a newly developed model for Government and private organisations to help mitigate cybersecurity incidents caused by various cyber threats (11 July 2017). More...
The Essential Eight Maturity Model can be accessed from the ASD's website at this PS News link.

Governments must end youth detention abuse
The Australian Human Rights Commission today expressed continuing and deep concern about the abuse of young people in detention, saying the focus on punitive measures is failing young people (07 July 2017). More...

Human Rights Commissioner calls for OPCAT input
Human Rights Commissioner Edward Santow is seeking submissions on Australia's implementation of the Optional Protocol to the Convention against Torture (OPCAT) (07 July 2017). More...

In practice and courts

NDIS costs: Productivity Commission costs position paper, including NIIS comment
Released by the Productivity Commission's NDIS Costs position paper , this sets out preliminary conclusions.

Law Council of Australia Submissions July 2017
Feedback on Notifiable Data Breaches Scheme Draft Resources
Australia-Vietnam 2017 Human Rights Dialogue: Civil Society Consultation
Civil Penalty Regime for Non-Consensual Sharing of Intimate Images

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. 29/2017, 17 July 2017

AHRC: OPCAT submissions
The Human Rights Commissioner has released a consultation paper and a call for submissions on Australia's implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The Federal Government intends to ratify OPCAT by December 2017.

Proposed Criminal Procedure Regulation 2017 The Department of Justice invites people who are interested in the proposed Criminal Procedure Regulation 2017 to tell us what they think. Submissions close 26 July 2017. More...

ICAC: Early bird discount registrations are now open for the Australian Public Sector Anti-Corruption Conference
Register by 15 August 2017, to take advantage of the early bird discount, via the above link to the APSACC 2017 website. More...

ICAC: Operation Tarlo public inquiry
The Operation Tarlo public inquiry has adjourned (13 July 2017). More...

ICAC: Prosecution briefs with the DPP and outcomes
Last updated 17 July 2017
Last updated 13 July 2017

Victims' involvement in sentencing
The NSW Attorney General has asked us to conduct a review of victims' involvement in the sentencing process. The deadline for preliminary submissions is 31 July 2017. More...

IPC NSW: Have your say on the development of uniform metrics on the use of FOI laws in Australia
Australian Information Commissioners and Ombudsmen, within the remit of each of their jurisdictions and led by NSW, have agreed on six proposed 'Metrics on Public Use of Freedom of Information Access Rights' that can be viewed here. Members of the public, experts and other stakeholders are invited to give your views on the metrics via a short survey here (20 July 2017). More...

Published – articles, papers, reports

2017 Independent intelligence review
Department of Prime Minister and Cabinet (Australia); Michael L'Estrange, Stephen Merchant: 17 July 2017 This review examined the environment in which the intelligence community operates, and consider how effectively it serves Australia's national interests. More...

A quick guide to the history of proposals for an Australian department of homeland security
Nigel Brew; Parliamentary Library (Australia)
Every few years since the terrorist attacks of 11 September 2001, a proposal to establish some sort of Australian homeland security department has been put forward as part of the national security policy of either the Liberal/National Coalition or the Australian Labor Party (ALP). More...

JUDCOM Research Monograph 40
20 July 2017: Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment. This contains a comprehensive analysis of the offenders and offences dealt with by the court. A particular focus of the study is how orders for costs impact upon the sentencing process. The study suggests a revision of the concepts used for criminal liability for Tier 1 offences under the Protection of the Environment Operations Act 1997 (NSW). To obtain a copy, please order from shop.nsw.


'LY' and Commonwealth Ombudsman (Freedom of information) [2017] AICmr 68
Freedom of Information — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5) and 47E(d).

David Albuquerque and Department of Foreign Affairs and Trade (Freedom of information) [2017] AICmr 67
Freedom of Information — Charges — Requests for waiver of charge — Whether giving access to documents is in the general public interest or in the interest of a substantial section of the public — (CTH) Freedom of Information Act 1982 s 29.

Andrew Pascoe and Civil Aviation Safety Authority (Freedom of information) [2017] AICmr 66 Freedom of Information —Whether documents subject to legal professional privilege — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether disclosure of personal information unreasonable — Whether material in documents irrelevant to the request — Whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 22, 42, 47E(d) and 47F.

Whish-Wilson; Australian Fisheries Management Authority (Freedom of information) [2017] AATA 1098
FREEDOM OF INFORMATION — Access to documents — requests for access to documents relating to fishing operations regulated by agency — documents contain commercially sensitive information — whether disclosure could reasonably be expected to adversely affect fishing operators' cooperation with agency's monitoring program — whether disclosure of documents could reasonably be expected to have substantial adverse effect on the proper and efficient conduct of agency's operations — whether access would, on balance, be contrary to the public interest — whether reasonably practicable for agency to prepare copies of documents modified by the deletion of exempt and irrelevant matter, having regard to the nature and extent of the modification — decisions under review set aside and substituted. Freedom of Information Act 1982, ss 3(2)(b), 4(1), 11A(5), 11B(3), 15, 22, 27, 31B, 47E(d), 47F, 47G, 54L, 54M, 54W(b), 55G, 57A(1)(a), 61(1)(a), 93A.

Tedder v Commissioner of Police, NSW Police Force [2017] NSWCATAD 226
ADMINISTRATIVE LAW – Government information – access to information – form of access - whether overriding public interest against disclosure – relevant considerations - personal information - nature of information sought – public interest - whether release would prejudice the effective exercise of an agency's functions – whether release would prejudice an investigation - investigation finalised – balancing exercise.

Durie v Wollongong City Council [2017] NSWCATAP 148
GOVERNMENT INFORMATION – where applicant applied under the Government Information (Public Access) Act 2009 (NSW) for personal information – where Wollongong City Council refused to provide that information – where Tribunal affirmed Council's decision – whether Tribunal made an error of law by not giving sufficient weight to considerations in favour of disclosure – whether Tribunal made an error of law by making a finding of fact without evidence – whether leave should be given to the applicant to appeal on grounds other than questions of law.

Rowell v Department of Family and Community Services [2017] NSWCATAD 221
GIPA ACT- Government Information – disclose personal information - prejudice the effective exercise of an agency's functions - Unreasonable diversion of resources.

McGinn v Secretary, Family and Community Services [2017] NSWIRComm 1039
DISMISSAL – employee dismissed pursuant to statutory power – common law tests not relevant – exercise of power to be considered within statutory structure of contract - refusal to work established – requirement for procedural fairness – procedural fairness afforded – statutory power correctly used. DISMISSAL – even where statutory power basis for dismissal, test remains test under Act – dismissal neither harsh, nor unreasonable nor unjust – application dismissed. JURISPRUDENCE OF COMMISSION - Commission not court of strict pleading – tests applicable to striking out defences not applicable to employer's reply in s.84 proceedings – summary judgment not available to applicant in proceedings brought under s.84.


Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2017
20/07/2017 - This instrument specifies the kinds of research for which access to information in the Integrated Public Number Database may be permitted and repeals the Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2007 (No. 1).

Telecommunications (Integrated Public Number Database Scheme - Criteria for Deciding Authorisation Applications) Instrument 2017
20/07/2017 - This instrument establishes the criteria for the Australian Communications and Media Authority to use in order to decide whether to authorise applications for access to the Integrated Public Number Database for public number directories and researchers, and repeals the Telecommunications (Integrated Public Number Database Scheme – Criteria For Deciding Authorisation Applications) Instrument 2007 (No. 1).

Telecommunications (Integrated Public Number Database – Public Number Directory Additional Information) Instrument 2017
20/07/2017 - This instrument specifies the additional information that may be included in a public number directory to be that which is agreed between a person and the publisher.

National Rental Affordability Scheme Amendment (Administrative Processes) Regulations 2017
14/07/2017 - These regulations address concerns that have been identified in the administration of the National Rental Affordability Scheme (NRAS or the Scheme). The Regulations are designed to remove unfair and disproportionate consequences for non-compliance with certain provisions.

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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Christine Jones
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