Our fortnightly NSW Government Bulletin will resume in full in February but until then, we invite you to enjoy our special summer edition of the bulletin.
Our authors have wrapped up the latest issues and reforms in key areas affecting government, looking at the topics:
- a monumental year in data and privacy
- the online court
- public sector data, the Data Sharing and Release Act and implications for governments
- new national modern slavery laws and legal challenge for government tenders
- planning and environment year in review.
Click here to read the summer edition of the Government Bulletin.
Our authors will also be presenting at our upcoming NSW Government Lawyers day on Friday 22 February 2019. You can view the program and find further information about the day by clicking here.
In the media
ICAC finds DFSI ICT project manager corrupt after
"hijacking" business name to obtain half-million dollar
benefit
The ICAC has found that former Department of Finance,
Services and Innovation (DFSI) project manager
Steven Prestage engaged in serious corrupt conduct through an
elaborate scheme he concocted involving "hijacking" the
name of his friend's company to help deceive the department
into making over $500,000 in payments that were ultimately used to
dishonestly benefit himself (16 January 2019). More...
Dutton's citizenship-stripping plan attacked by
Australian Human Rights Commission
The Australian Human Rights Commission has warned Peter
Dutton's proposal to lower the bar for stripping people
convicted of terrorism or related offences of Australian
citizenship could render people stateless and would be
retrospective in application – in possible violation of
international law or the rule of law (15 January 2019). More...
Australian democracy strengthened as foreign donations
banned
The Morrison Government's new political donation laws
that ban foreign interference in Australian elections are now in
place. The new laws mandate that political campaigning targeting
Australians cannot be paid for by foreign donors, including
election advertising, campaign phone calls and how-to-vote cards
(14 January 2019). More...
Government's $444m grant to reef body did not comply
with transparency rules, Audit Office says
The auditor-general criticises the Environment
Department's assessment of whether a funding allocation worth
nearly half a billion dollars was good value for money (16 January
2019). More...
My Health Record system data breaches rise
The number of data breaches involving My Health Record has
risen year-on-year, from 35 incidents in the last financial year to
42 incidents this year, a report by the Australian Digital Health
Agency (ADHA) has shown (10 January 2019).
More...
Cautious approach for sex offender register required,
says Law Council
While the Law Council of Australia does not object in
principle to the establishment of a National Public Register of
Child Sex Offenders, it believes only offenders who pose a
demonstrated risk to children should be required to register.
He also stated inclusion on such a register should never be
automatic (9 January 2019). More...
Free online pathways to solve legal problems
The LawAccess NSW website now provides two interactive
guided pathways to match people with the information they need to
resolve their issues before they spiral out of control, with
another four pathways on other topics to come in 2019 (9 January
2019). More...
'High risk' persons may be left stateless with
current laws, Law Council says
The nation's top legal body wants Australia's
government to be more discerning about the stripping of citizenship
as current laws creates a high risk that some people may be left
stateless. Click here to read the Law Council of
Australia's statement regarding Neil Prakash's citizenship
status. (5 January 2019). More...
New tenancy laws help domestic violence victims living
in New South Wales rentals
Long-awaited, and some of the most significant changes to
NSW tenancy laws are set to strengthen the protection for domestic
violence victims living in rented properties around the state (7
January 2019). More...
A clearer path for child abuse survivors to sue in New
South Wales
A child abuse survivor will be able to sue an
unincorporated organisation, which can nominate a proper defendant
with sufficient assets to meet the claim. If it fails to do so, the
court can appoint associated trustees to be sued who can access
trust property to pay the compensation (1 January 2019). More...
Police access to health records raises privacy
concerns
Thousands of records containing sensitive information such
as HIV-status, past abortions and mental health issues are being
requested by the police every year – and doctors and privacy
experts are deeply concerned about it (21 December 2018). More...
Global hack of managed service providers
The Office of the Australian Information Commissioner
(OAIC) advises managed service providers which may
be affected by a global cyber security hack to take steps to ensure
Australians' personal information is being safeguarded (21
December 2018). More...
In practice and courts
AEC: Funding, disclosure and political parties
Some changes have been made to election funding and
disclosure laws in the Commonwealth Electoral Act 1918
(Electoral Act) as a result of the Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Act
2018 (the FAD Reform Act). From 1 January
2019 the Electoral Act restricts the receipt of donations from
foreign donors (14 January 2019). More...
Consultation opens on Public Interest
Determination
An application from the Australian Federal Police
(AFP) for a Public Interest Determination is now
open for public comment. The application to the OAIC under s 72 of
the Privacy Act would allow the AFP to disclose limited
personal information about homicide offenders and suspects to the
Australian Institute of Criminology without breaching Australian
Privacy Principle 6. It is intended to replace a previous determination which expired on
1 October 2018. More information is available on the
OAIC website, with submissions due by 1 February 2019.
High Court Rules: Amendments to Second Schedule
The Court has agreed to the recommendation of the
Committee for an increase of 2.1% to the solicitors' costs,
which came into operation on 1 January 2019 and will apply in
respect of all work done and services performed by solicitors after
31 December 2018. More...
AAT Bulletins 2019
The AAT Bulletin is a weekly publication containing a list
of recent AAT decisions and information relating to appeals against
AAT decisions.
Issue No. 2/2019 - 14 January 2019
Issue No. 1/2019 - 7 January 2019
Current consultations
Review of the Telecommunication and Other Legislation
Amendment (Assistance and Access) Act 2018, the
Parliamentary Joint Committee on Intelligence and Security.
This review is in addition to two separate statutory reviews,
amendments to include a review due to commence by April
2019.
Draft Privacy Impact Assessment –
Consumer Data Right, The Treasury.
This consultation process has now been completed.
21 December 2018 - 18 January 2019
Sex Discrimination Amendment (Removing
Discrimination Against Students) Bill 2018, Parliamentary
Senate Standing Committees on Legal and Constitutional
Affairs.
The deadline for submissions to the inquiry was 21 January
2019.
The Establishment of a Commonwealth
Integrity Commission, Attorney-General's Department.
Submissions close on 1 February 2019.
Uniform Civil Procedure Rules 2005 – Rule 7.4
Amendment
The Uniform Civil Procedure (Amendment No 88) Rule 2018 has
inserted Rule 7.4 into the Uniform Civil
Procedure Rules 2005. The rule makes provision for an
unincorporated organisation to appoint an entity to act as the
proper defendant in proceedings for a civil claim arising from
abuse against a child. The rule commenced on 1 January 2019 when Division 4 of Part 1B of the Civil
Liability Act 2002 commenced. UCPR form 162 – Consent to
act as proper defendant is available here.
NCAT to redetermine 'consumer guarantee
directions'
Changes to the Fair Trading Act 1987 give NCAT
the power to redetermine 'consumer guarantee directions'
issued by NSW Fair Trading. If the consumer or business is
unhappy with the consumer guarantee direction, they can apply to
NCAT for a redetermination. Visit the NSW Fair Trading website to
learn more about consumer guarantee directions (10
January 2019). More...
IPC: 2018-19 Report on the Operation of the GIPA
Act
Under the Government Information (Public Access) Act
2009 (GIPA Act) and the GIPA Regulation,
agencies are required to report annually on their obligations. The
IPC has been receiving these reports and collating data in recent
months. The 2018-19 annual report is currently being prepared and
is due to be tabled in Parliament in February 2019.
Prosecution outcomes and briefs with the DPP
Tables showing information about ICAC-related prosecution
outcomes, and briefs with the DPP (18 January 2019). More...
ICAC: Operation Dasha public inquiry adjourned to 29
January 2019
The Operation Dasha public inquiry into allegations
concerning the former Canterbury City Council is adjourned to
Tuesday 29 January 2019. More...
Identity crime and misuse in Australia: Results of the
2017 online survey
This report presents findings of the latest survey of
identity crime and misuse undertaken by the Australian Institute of
Criminology as part of the Australian Government's National
Identity Security Strategy (28 December 2018). More...
Estimating the cost to Australian businesses of identity
crime and misuse
This study examined the economic scale of the problem of
identity crime and misuse targeting businesses in Australia and
provides estimates of the direct and indirect costs borne by
affected businesses. More...
Award of a $443.3 million grant to the Great Barrier
Reef Foundation
The objective of the audit was to assess whether the award
of a $443.3 million grant to the Great Barrier Reef Foundation was
informed by appropriate departmental advice and a thorough
processes that complied with the grants administration framework.
More...
Cases
CME v University of Technology
Sydney [2019] NSWCATAP
3
ADMINISTRATIVE REVIEW – Appeal from decision
dismissing an application under the Privacy and Personal
information Protection Act 1998 (NSW) for want of jurisdiction
– where Tribunal dismissed application for review of conduct
by University of Technology Sydney in publishing a decision of the
Victorian Civil and Administrative Tribunal to which she was a
party – whether the Tribunal erred in law by dismissing the
application.
STATUTORY INTERPRETATION – Meaning of s 6 of the Privacy
and Personal Information Protection Act 1998 (NSW).
Lock the Gate Alliance v
Department of Planning and Environment & Department of Premier
and Cabinet [2019] NSWCATAD
6
ADMINISTRATIVE LAW – Administrative review -
government information – cabinet information – whether
document would reveal or tend to reveal cabinet deliberations or
decisions – some information in public domain – the
document not the information must have been approved for
release.
ADMINISTRATIVE LAW – Administrative review - government
information – cabinet information – document that
reveal or tends to reveal the position Minister is considering
taking to Cabinet – no requirement that position actually
taken to Cabinet - meaning of "the position" – not
confined to "one" position.
ADMINISTRATIVE LAW – Administrative review - government
information – legal professional privilege – privilege
claimed by Department which was not Department to which legal
advice or services provided – provision of advice etc is to
the State not the individual administrative Department –
sharing of legal advice between Department – question of
waiver does not arise.
ADMINISTRATIVE LAW – Administrative review - government
information – public interest considerations against
disclosure – whether information provided in confidence
– whether disclosure could reasonably be expected to found an
action for breach of confidence – no requirement that entity
likely to commence such an action – whether information has
"competitive commercial value".
DRF v Commissioner of Police,
NSW Police Force [2019] NSWCATAD
5
ADMINISTRATIVE LAW – Government information –
public interest considerations against disclosure – prejudice
to supply of confidential information – prejudice to
effective exercise of policing functions – prejudice to
detection, prevention or investigation of contraventions of the law
– public interest in favour of disclosure where disclosure
may show improper or illegal conduct - proactive policing - public
interest in favour of disclosure of a person's personal
information – public interest in favour of informing the
public about proactive policing.
CEU v University of Technology
Sydney; University of Technology Sydney v CEU
[2019] NSWCATAD 11
PRACTICE AND PROCEDURE – Guardian ad litem appointed
for applicant – withdrawal of applications – dismissal
of proceedings – restraint order.
Anti-Discrimination Act 1977; Civil and Administrative
Tribunal Act 2013; Civil and Administrative Tribunal Rules
2014; Government Information (Public Access) Act 2009;
Privacy and Personal Information Protection Act
1998.
Pollington v Commissioner of
Police, NSW Police Force [2019] NSWCATAD
1
ADMINISTRATIVE LAW – Government information
– access application – redaction of information
concerning testing methodology – personal information -
whether public interest considerations against disclosure outweigh
public interest considerations in favour of disclosure.
Scenic NSW Pty Ltd v Office of
Environment & Heritage [2019] NSWCATAD
7
ADMINISTRATIVE LAW – Government
information – decision to defer access after
granting access – power to decide to defer
access – rights of internal
review – sections 80(h), 78,88, 54(6) and (7)
Government Information (Public Access) Act 2009.
Legislation
Commonwealth
Referendum (Machinery
Provisions) Act 1984
16/01/2019 - Act No. 44 of 1984
Copyright Act
1968
16/01/2019 - Act No 63 of 1968
Australian Human Rights
Commission Act 1986
14/01/2019 - Act No. 125 of 1986
Independent National Security
Legislation Monitor Act 2010
11/01/2019 - Act No. 32 of 2010 as amended
Public Interest Disclosure Act
2013
11/01/2019 - Act No. 133 of 2013 as amended
Privacy Act
1988
11/01/2019 - Act No. 119 of 1988 as amended
Age Discrimination Act
2004
10/01/2019 - Act No. 68 of 2004
Ombudsman Act
1976
08/01/2019 - Act No. 181 of 1976
Freedom of Information Act
1982
07/01/2019 -Act No. 3 of 1982 as amended
Copyright Act
1968
07/10/2019 -Act No. 63 of 1968 as amended
Telecommunications (Interception
and Access) Act 1979
07/01/2019 - Act No. 114 of 1979 as amended
Regulation
Australian Citizenship (LIN 19/066:
Persons Who May Receive a Pledge of Commitment) Instrument
2019
17/01/2019 - The instrument revokes the Citizenship
(Authorisation) Revocation and Authorisation Instrument 2017 and
operates to authorise persons and the different class of persons
able to receive the pledge of commitment of Australian
citizenship.
Disability Services (Principles and
Objectives) Instrument 2018
10/01/2019 - This instrument formulates principles and
objectives to be furthered and guidelines to be complied with in
the administration of the Disability Services Act 1986.
New South Wales
Regulations and other miscellaneous instruments
Electoral Amendment Regulation 2019
(2019-4) — published LW 18 January 2019
Electoral Funding Amendment (Administration
Fund Payments) Regulation 2019 (2019-5) — published LW 18
January 2019
Legal Profession Uniform Conduct
(Barristers) Amendment (Refusal of Briefs) Rule 2018 (2019-6)
— published LW 18 January 2019
Liquor Amendment (Special Events Extended
Trading) Regulation 2019 (2019-7) — published LW 18
January 2019
For the full text of Bills, and details on the passage of Bills,
see here.
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.