In the media
Court reforms judged a winner
A simple change to allow certain offences to be prosecuted
in a local court, rather than requiring them to be heard in higher
courts, has reduced the workload of the district court by over
1,000 matters in 18 months, according to an evaluation from the NSW
Bureau of Crime Statistics and Research (17 August 2021).
More...
Forty per cent of Service NSW data breach victims not
notified
Nearly 40,000 people whose data was compromised in a
massive Service NSW data breach last year will never receive
official notification about the incident because of the type of
data involved and the agency's policy to deliver
"personalised" notices through the post (25 August 2021).
More...
Space, robotics among new defence priorities
The federal government has added new sovereign defence
priority areas in recognition of the changing nature of technology
for the battlefield (27 August 2021).
More...
Government keeps robodebt advice
secret
The federal government has again blocked the release of
documents relating to the robodebt scandal, in an "enormous
undermining of public confidence" which could lead to similar
failures of public administration in the future, according to a
number of senators (26 August 2021).
More...
Senate shoots down sovereign capability inquiry
The senate has shot down the federal government's
attempt to launch an inquiry into Australia's sovereign
capability and critical infrastructure (26 August 2021).
More...
'Extraordinary' hacking powers pass
Parliament
Legislation handing "extraordinary" new hacking
powers to Australian authorities, the Surveillance Legislation
Amendment (Identify and Disrupt) Bill 2021 has passed
through parliament with support from the opposition, despite the
government not implementing some of the recommendations from the
national security committee (25 August 2021).
More...
HRLC: Insufficient safeguards in new surveillance
law
The Morrison government has rushed through a new law
creating sweeping surveillance powers, ignoring crucial
recommendations of the bipartisan Parliamentary Joint Committee on
Intelligence and Security that stronger safeguards are needed to
protect the privacy of all Australians (25 August 2021).
More...
Counter-Terrorism Legislation Amendment (Sunsetting
Review And Other Measures) Bill 2021
The Morrison government has welcomed the passage in the
parliament of legislation to continue critical powers to respond to
the evolving threat posed by terrorism (24 August 2021).
More...
DTA ditches digital 'transparency'
dashboard
The federal government has shut down its performance
dashboard, used to improve digital services and provide
transparency to the public, as part of a significant restructuring
of its digital agency (24 August 2021).
More...
Ombudsman lays down law for follow-ups
The Office of the Commonwealth Ombudsman has issued a
factsheet on the extent of implementation of its recommendations by
government agencies. In its publication Recommendations
implementation report factsheet the office says it periodically
publishes reports to ensure agencies take action to address areas
of improvement identified in past ombudsman reports (23 August
2021).
More...
ACSC calls for back first to protect data
The Australian Cyber Security Centre
(ACSC) has advised computer users to back up their
online data as "one of the best defences against
ransomware" and similar cyber attacks. The ACSC's
step-by-step guides on creating a backup can be accessed here (23 August 2021).
More...
Australian Bar Association responds to recent commentary
about judicial impartiality
The Australian Bar Association notes recent commentary in
the media about analyses of the outcomes of decisions reached by
individual judges – sitting both by themselves in trials or
together on appeals (23 August 2021).
More...
Ransomware rise a concern: Privacy Commissioner
Data breaches arising from ransomware incidents increased
by 24 per cent in the first half of the year, prompting
Australia's Privacy Commissioner to warn that such attacks
"are a significant cyber threat" that may be
under-reported (23 August 2021).
More...
OAIC: Data breach report highlights ransomware and
impersonation fraud as concerns
The latest notifiable data breaches report highlights how
the OAIC expects entities to prevent and respond to data breaches
caused by ransomware and impersonation fraud (23 August 2021).
More...
HRLC: Senate votes to ban forced labour imports in vital
step to combat modern slavery
The Australian senate has voted to ban the importation of
any goods made with forced labour into Australia, in a move that
signals cross-party support for stronger measures to prevent
Australian companies profiting from modern slavery overseas (23
August 2021).
More...
Audited defence program found effective
A performance audit of the Department of Defence's
administration of enabling services, specifically, the Enterprise
Resource Planning program has found the program has been largely
effective, but found there was scope for the department to improve
program governance arrangements (20 August 2021).
More...
New pilot program to deliver a government-wide data
catalogue
The ONDC has received funding in the 2021–22 federal
budget to deliver a pilot program to develop data inventories for
20 per cent of Australian government agencies. These data
inventories will provide the foundation for a public, searchable
catalogue of government-held data assets, providing a starting
point for those wishing to seek out government data and apply to
the relevant data custodian for safe access to the data (20 August
2021).
More...
Government response to the tune review
The Morrison government has released its response to the
functional and efficiency review of the National Archives of
Australia. Preserving Australia's historic records is crucial
to the identity of the nation and the collection includes
irreplaceable information about our citizens, such as immigration
records, military service records and census data (19 August 2021).
More...
Law Reform Commission (ALRC) media statement
Consultation with the public is an important part of the
law reform process conducted by the Australian Law Reform
Commission (ALRC). The ALRC encourages the public
to engage with it and values the contributions it receives from the
public and relevant stakeholders (18 August 2021).
More...
In practice and courts
APS pay rates in line for a change
The Australian Public Service Commission
(APSC) has issued a circular setting out changes
to APS pay rates to apply between 1 September this year and 31
August 2022. The full circular 2021/04 can be accessed on the APSC
website
here (20 August 2021).
ALRC in brief – August 2021
23 August 2021 – the Australian Law Reform
Commission co-hosted a seminar with Wolters Kluwer to explore
different viewpoints on judicial impartiality outlined in detail here.
ABA KordaMentha concurrent evidence practices
survey
KordaMentha and the Australian Bar Association are
interested in your views on concurrent evidence practices in
Australia. If you have first-hand experience with concurrent
evidence and would like to be part of the survey, we welcome your
participation. The survey closes on 17 September. You can find more
information, and take the survey
here (24 August 2021).
Federal Circuit and Family Court of Australia –
rules of court – family law, general federal law and
bankruptcy
The Chief Justice of the Family Court of Australia and
Chief Judge of the Federal Circuit Court of Australia has advised
that new rules regarding the family law and child support
jurisdictions and general federal law and bankruptcy proceedings in
the FCFCOA have been made and will commence on 1 September 2021. A
brief summary of the new rule instruments are outlined
here (updated 27 August 2021).
Update to the profession No.4: Commencement of the new Federal
Circuit and Family Court of Australia (last updated on August
20, 2021).
Update to the family law profession: Commencement of the
new FCFCOA
The Family Court of Australia and Federal Circuit Court of
Australia released information outlining changes to court
operations that will occur on the commencement of the Federal
Circuit and Family Court of Australia (FCFCOA)
from 1 September 2021. The attached
provides an overview of changes to the FCFCOA's harmonised
rules, practice directions, forms and website.
Attorney-General appointments
20 August 2021 –
reappointments to the Administrative Appeals Tribunal.
ACMA consultation: Consumer vulnerability: Expectations
for the telco industry – consultation 27/2021
We want to create a statement of expectations for the
telco industry to improve outcomes for vulnerable consumers.
Closing date 08 September 2021. Click
here for more information.
Department of Infrastructure, Transport, Regional
Development and Communications: Draft Online Safety (Basic Online
Safety Expectations) Determination 2021 consultation
We are seeking submissions on an exposure draft of the
Online Safety (Basic Online Safety Expectations) Determination
2021. The draft determination sets out the government's demands
for providers that offer a social media service, "relevant
electronic service" or "designated internet
service", including the nine principle-based "core
expectations" included in the Act. View the
consultation and
consultation paper. Submissions to the consultation close on 15
October 2021.
Law Council update
The Law Council produces a fortnightly newsletter which
highlights the Law Council's important activities and advocacy,
along with any relevant media and events stakeholders would be
interested in. Click here
to read the latest update.
Law Council of Australia submissions
20 August 2021 – Law Council
CP 345 litigation funding schemes: Guidance and relief
20 August 2021 – Law Council
Inquiry into constitutional reform and referendums
19 August 2021 – Business Law Section
Consumer data right strategic assessment
AAT Bulletin
The AAT Bulletin is a weekly publication containing a list
of recent AAT decisions and information relating to appeals against
AAT decisions. Read
Issue No. 17/2021, 23 August 2021.
Legal and Constitutional Affairs Legislation
Committee
Constitution Alteration (Freedom of Expression and Freedom of the
Press) 2019
Status: Accepting submissions. Date referred: 17 June 2021.
Submissions closed: 20 August 2021. Reporting date: 31 December
2021.
Select Committee on Foreign Interference through Social
Media
Select Committee on Foreign
Interference through Social Media to inquire into and report on
the risk posed to Australia's democracy by foreign interference
through social media. The committee is to present its final report
on or before the second sitting day of May 2022. The closing date
for submissions is 31 October 2021.
Strengthening Australia's cyber security regulations
and incentives
On 13 July 2021, the Australian government opened
consultation on options for regulatory reforms and voluntary
incentives to strengthen the cyber security of Australia's
digital economy. Interested stakeholders are invited to provide a
submission to the discussion paper, Strengthening Australia's
cyber security regulations and incentives. Submissions on the
discussion paper can be made via our submission form before 27
August 2021. Click
here for more information.
Equitable briefing policy reporting
2020–2021
The 2020–2021 financial year has recently ended, and
annual reports of briefing entities who have adopted the Law
Council's equitable briefing policy are due by 30 September
2021. If you have adopted the policy as counsel, please provide
your annual report for the 2020–2021 financial year using the
portal.
The
Equitable briefing policy reporting template and guidelines
provides detailed information on how to how to make a
report and includes a reporting template to show the information
required.
NSW
COVID-19: Information for attending court – 27
August 2021
The New South Wales Bar Association's consolidated
guide to COVID-19-related court arrangements has again been updated
in terms of recent developments. Click
here for more information.
NCAT update – increased use of video conference
hearings
NCAT's consumer and commercial division will be
conducting more hearings over video. From 16 August 2021, all
tenancy and general matter conciliation and first listings will be
held by video or telephone. Parties will have the option to join
the video hearing or dial in. Click
here to read more.
Protocols for virtual proceedings
Virtual proceedings are still formal environments and,
wherever possible, the usual etiquette and protocols should be
observed. The Supreme Court fact sheet on virtual courtrooms
includes the following protocols as a guide for practitioners. Read
the fact sheet
here (09 August 2021).
Supreme Court appointments
11 August 2021 –
new Chief Judge at common law appointment.
Costs disputes – uniform law – indexed
amounts
Sections 291, 292 and 293 of the Legal Profession Uniform
Law (NSW) relate to costs disputes. The amounts have again been
indexed for the financial year 1/7/2021 – 30/6/2022. The
Legal Profession Uniform Law (Indexed Amounts) Notice 2021 has been
published and is available here.
Personal Injury Commission – hearings during
COVID-19
The President of the Personal Injury Commission has
advised the NSW Bar Association that the PIC will continue to apply
procedural direction 10 until further notice. Procedural direction
10 provides that, during the currency of the COVID-19 pandemic and
until further notice, the Commission will, list matters for hearing
by audio link or audio-visual link. Procedural direction 10 is
available
here.
Artificial Intelligence (AI)
The NSW government believes that the NSW government can
use AI to benefit the community and is taking actions to ensure
that AI is used safely, ethically and effectively. We have an AI
strategy that outlines our vision for the use of AI, and ensures
transparency, fairness and accountability. Have your say to 31
December 2021
here.
Published – articles, papers, reports
Courts and Tribunals Legislation Amendment (2021
Measures No. 1) Bill 2021 Inquiry Report
Commonwealth of Australia, August 2021. The
Courts and Tribunals Legislation Amendment (2021 Measures No. 1)
Bill 2021 amends legislation relating to the administration of
federal courts and the Administrative Appeals Tribunal.
Notifiable data breaches report
OAIC: 23 August 2021. Reports 43 per cent resulting from
cyber security incidents, of the 445 total breaches, 46 were from
ransomware, up from 37 notifications in the last reporting period.
Click
here to read the report.
ANAO Annual Report 2020–21
ANAO: 26 August 2021. This annual report documents the
performance of the Australian National Audit Office
(ANAO) in the financial year ended 30 June 2021.
The report addresses all applicable obligations under the Public
Governance, Performance and Accountability Act 2013; the Public
Governance, Performance and Accountability Rule 2014; the
Auditor-General Act 1997; the performance measures set out in the
outcome and programs framework in the ANAO's portfolio budget
statements 2020–21 and the ANAO corporate plan 2020–21;
and annual reporting requirements set out in other relevant
legislation. Click
here to read the report.
NLD – right of review – prosecutions
involving child and certain other complainants
CDPP: 18 August 2021. The purpose of this National Legal
Direction ("NLD") is to set out
guidelines in relation to how certain critical decisions should be
made with respect to commencing or wholly discontinuing charges in
matters where there is a complainant or multiple complainants, and
the complainant is an identifiable victim. Click
here for more information.
ABA national brief – 09 August 2021
The ABA issues regular news updates to its members. Click
here
to read more.
Defence's administration of enabling services
– enterprise resource planning program: Tranche
1
Auditor-General Grant Hehir found the ERP program: 20 August
2021. Mr Hehir made five recommendations aimed at improving the
department's risk reporting; probity management; program
decision-making arrangements; contract governance; and benefits
realisation planning. The department agreed to implement all five
recommendations. The online audit report can be found online
here and a 93-page pdf report at
this link.
Government's response to the tune review
Commonwealth government: August 2021. The review
highlights a number of challenges faced by the National Archives in
areas such as the adoption of new technology for the management of
the information in its custody, cybersecurity, limitations of the
current legislative regime and deterioration of records. The
government has agreed to all 20 recommendations, in full or in
principle. Click
here for more information.
The second tranche of the table offences reform: Impacts
on District and Local Court finalisations, time to finalisation and
sentencing outcomes
BOCSAR Evaluation Report No 156: August 2021. Results from
this study suggest that reclassifying offences from strictly
indictable to table offences significantly reduced both the number
of matters finalised in the District Court and court delay. The
likelihood of prison sentences longer than 12 months decreased
post-reform. Click
here for more information.
Cases
EJE v Western Sydney Local Health
District [2021] NSWCATAP
247
ADMINISTRATIVE LAW – particular administrative
bodies – NCAT – administrative review of decision made
under the Privacy and Personal Information Protection Act 1988
(NSW).
PROCEDURE – dispensing with requirement to hold a hearing
– precondition to exercising power to conduct hearing
"on the papers" as permitted by section 50 of the Civil
and Administrative Tribunal Act 2013 (NSW).
COSTS – special circumstances – whether discretion to
award costs should be exercised.
Stalvies v Snowy Monaro Regional Council
[2021] NSWCATAP 246
APPEALS – error of law – inadequate reasons
– taking account of irrelevant considerations – failing
to take account of relevant considerations –
redetermination.
GOVERNMENT INFORMATION – information held by local council
– communications with local council and local residents
– whether personal information – weighing of competing
interests for and against disclosure.
Bushfire Survivors for Climate Action Incorporated v
Environment Protection Authority [2021]
NSWLEC 92
JUDICIAL REVIEW – public duty – failure to
perform – duty to develop environmental quality objectives,
guidelines and policies to ensure environment protection –
meaning and content of duty – discretion in performing duty
– controls on the exercise of discretion – duty
requires the development of objectives, guidelines and policies to
ensure environment protection from climate change – breach of
duty – mandamus to compel performance of duty.
Walker v Northern Beaches Council
[2021] NSWCATAD 251
ADMINISTRATIVE LAW – access to government
information – adequacy of searches.
ADMININSTRATIVE LAW – access to government information
– production of redacted documents – whether public
interest considerations against disclosure outweigh public interest
considerations in favour of disclosure.
BVV v Commissioner of Police
[2021] NSWCATAD 250
ADMINISTRATIVE REVIEW – privacy – personal
information – disclosure of deed to insurer –
exceptions to contravention – whether disclosure directly
related to purpose for collection – whether reason to believe
that the individual concerned would object.
CLT v Department of Education
[2021] NSWCATAD 249
ADMINISTRATIVE LAW – access to government
information – access application – public interests in
favour of disclosure – public interests against disclosure
– whether overriding public interest against disclosure
– review of decision that information not held by an
agency.
Tallawoladah Pty Ltd v Department of Planning, Industry
and Environment [2021] NSWCATAD
248
ADMINISTRATIVE LAW – government information –
access application – whether overriding public interest
against disclosure – lack of evidence – confidential
information – information provided in confidence –
prejudice to court proceedings – competitive commercial
– legitimate business, commercial, professional or financial
interests.
Else v Sydney Trains [2021]
NSWCATAP 245
APPEAL – ADMINISTRATIVE LAW – appeal from a
decision of the Tribunal to affirm the decision of the respondent
agency to refuse to grant the appellant access to information
– meaning of phrases "could reasonably be expected"
and "facilitate" in clause 2(d) and 2(f) of the table to
section 14 of the Government Information (Public Access) Act 2009
(NSW).
DMP v Sydney Local Health District
[2021] NSWCATAD 246
ADMINISTRATIVE REVIEW – privacy – health
records – alleged breaches of health privacy principles
– use and accessibility of health information in training
database – meaning of use – whether sufficient security
safeguards – whether refusal to treat anonymously unlawful
and impracticable – whether patient coerced to provide health
information.
EEC v Federation Council (No 2)
[2021] NSWCATAD 241
ADMINISTRATIVE LAW – freedom of information –
personal information – remittal of decision for
reconsideration.
DTN v Commissioner of Police
[2021] NSWCATAD 240
PRIVACY – accuracy of personal information –
personal information – health information – section
4(3)(j) Privacy and Personal Information Act 1998 – section
5(3)(m) Health Records and Information Privacy Act 2002.
Jackson v University of New South Wales (No
4) [2021] NSWCATAD
239
ADMINISTRATIVE LAW – practice and procedure –
dismissal of proceedings for non-appearance – dismissal of
proceedings for want of prosecution – application for
reinstatement of proceedings – whether jurisdiction to
reinstate proceedings.
EMC v The University of Sydney
[2021] NSWCATAD 234
GOVERNMENT INFORMATION PUBLIC ACCESS – information
for which there is a conclusive public interest against disclosure
(privileged information) – client privilege – in-house
lawyers – independence – improper purpose.
Non-disclosure order – anonymisation order. Information for
which there is an overriding public interest against disclosure
(clause 1(e), (f) and (g) and clause 3(a) and (b) and of the table
to section 14(2) of the Government Information (Public Access) Act
2009). Balancing public interest considerations. Allegations of
misconduct – failure to exercise in good faith –
function conferred on officer – section 112 referral to
Minister.
Legislation
Commonwealth
Foreign Intelligence Legislation Amendment Bill
2021
Finally passed both Houses 26 August 2021 – to:
Enable the Director-General of Security to apply for a warrant
authorising the interception of a communication for the purpose of
obtaining foreign intelligence from foreign communications; and
Australian Security Intelligence Organisation Act 1979 and
Telecommunications (Interception and Access) Act 1979 to enable the
Attorney-General to issue foreign intelligence warrants to collect
foreign intelligence on Australians in Australia who are acting
for, or on behalf of, a foreign power; and Telecommunications
(Interception and Access) Act 1979 to make other amendments.
Electoral Legislation Amendment (Counting, Scrutiny and
Operational Efficiencies) Bill 2021
Finally passed both Houses 26 August 2021 – amends
the Commonwealth Electoral Act 1918 to: Insert a vote-saving
provision for postal votes that are not received inside a sealed
envelope bearing a postal vote certificate; enable postal voters
outside Australia to complete certain procedural steps
electronically if they are unable to comply with authorised witness
requirements; amend how records of paper-based postal vote
applications are managed; remove the requirements for pre-poll
declaration envelopes to carry a distinguishing number; provide for
a fixed pre-poll period commencing no earlier than 12 days before
polling day; enable the early opening and sorting of pre-poll
ballot papers, and the early extraction of declaration votes; allow
'spoilt' or 'discarded' ballot papers to be
bundled; increase the number of scrutineers permitted to observe
the computerised scrutiny of Senate elections; and remove the
requirement for the authorisation of printed electoral material to
include details of the printer.
Surveillance Legislation Amendment (Identify and Disrupt)
Bill 2021
Finally passed both Houses 25 August 2021 – amends:
The Surveillance Devices Act 2004 and Telecommunications
(Interception and Access) Act 1979 to: Introduce data disruption
warrants to enable the Australian Federal Police
(AFP) and the Australian Criminal Intelligence
Commission (ACIC) to disrupt data by modifying,
adding, copying or deleting data in order to frustrate the
commission of serious offences online; and make minor technical
corrections; the Surveillance Devices Act 2004 to introduce network
activity warrants to enable the AFP and ACIC to collect
intelligence on serious criminal activity by permitting access to
the devices and networks used to facilitate criminal activity; the
Crimes Act 1914 to: introduce account takeover warrants to enable
the AFP and ACIC to take over a person's online account for the
purposes of gathering evidence to further a criminal investigation;
and make minor amendments to the controlled operations regime to
ensure controlled operations can be conducted effectively in the
online environment; and 10 Acts to make consequential
amendments.
Regulations
Charter
of the United Nations (UN Sanction Enforcement Law) Amendment
Declaration 2021 (No. 1)
26/08/2021 – this instrument makes a consequential
amendment to the Charter of the United Nations (UN Sanction
Enforcement Law) Declaration 2008 to reflect the making of the
Charter of the United Nations Legislation Amendment (2021 Measures
No. 1) Regulations 2021.
Telecommunications
(Prohibition of Mobile Phone Boosters) Declaration
2021
23/08/2021 – this instrument prohibits the operation
or supply, or the possession for the purpose of operation or
supply, of mobile phone boosters which are designed or intended to
be used in connection with public mobile telecommunication
services.
Charter
of the United Nations Legislation Amendment (2021 Measures No. 1)
Regulations 2021
23/08/2021 – this instrument amends multiple
regulations to implement United Nations Security Council
Resolutions that modify existing sanctions in relation to various
sanctions regimes.
Transport
Security Legislation Amendment (Serious Crime) Regulations
2021
20/08/2021 – these regulations amend the Aviation
Transport Security Regulations 2007 and the Maritime Transport and
Offshore Facilities Security Regulations 2003 to introduce new
criteria affecting eligibility for holding ASIC's &
MSIC's to give effect to amendments made by the Transport
Security Amendment (Serious Crime) Act 2021, makes other
consequential amendments to the above and the AusCheck Regulations
2017 to support those amendments.
High
Court (2022 Sittings) Rules 2021
17/08/2021 – these rules appoint the high court days
of sitting for 2022.
Australia's
Foreign Relations (State and Territory Arrangements) Amendment
(Repeal) Rules 2021
16/08/2021 – this instrument amends the
Australia's Foreign Relations (State and Territory
Arrangements) Rules 2020 to prescribe a self-repeal provision for
the instrument after five years.
Broadcasting
Services – Enforcement Guidelines of the ACMA
2021
16/08/2021 – these guidelines revoke and replace the
guidelines relating to the ACMA's enforcement powers under the
Broadcasting Services Act 1992.
NSW
Regulations and other miscellaneous instruments
Referable
Debt Order (2021–492) – published LW 27 August
2021.
Bail
Regulation 2021 (2021–454) – published LW 20 August
2021.
Children
(Criminal Proceedings) Regulation 2021 (2021–455) –
published LW 20 August 2021.
Confiscation
of Proceeds of Crime Regulation 2021 (2021–456) –
published LW 20 August 2021.
Court
Security Regulation 2021 (2021–457) – published LW
20 August 2021.
Graffiti
Control Regulation 2021 (2021–458) – published LW
20 August 2021.
Legal
Profession Uniform General Amendment (Managed Investment Schemes)
Rule 2021 (2021–473) – published LW 20 August
2021.
Local
Government (General) Regulation 2021 (2021–460) –
published LW 20 August 2021.
Public
Health Amendment (COVID-19 Penalty Notice Offences) Regulation (No
3) 2021 (2021–452) – published LW 16 August
2021.
Sheriff
Regulation 2021 (2021–463) – published LW 20 August
2021.
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.