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NSW Government Bulletin

12 June 2019

#Government

Christine Jones

Published by Christine Jones

NSW Government Bulletin

Whilst the scale of probity spend is small in the context of the NSW Government’s overall spend on projects, probity in procurement is important for the government to ensure decisions are made with integrity, fairness and accountability while attaining value for money.

Against this background, the New South Wales Auditor-General has issued its report on the engagement of probity advisors and probity auditors (report) dated 27 May 2019. 

The report assessed compliance with the ‘PBD-2013-05 Engagement of probity advisers and probity auditors’ (direction) during the asset procurement and disposal processes of Transport for NSW, the Department of Education and the Ministry of Health over the period 1 July 2015 to 30 June 2018, and surveyed 40 NSW Government agencies with the largest total expenditures to analyse their use of probity practitioners.

The three participating agencies were found to have compliance issues under the direction, in failing to:

  • document detailed terms of reference
  • ensure the probity practitioner was sufficiently independent
  • manage probity practitioners’ independence and conflict of interest issues transparently
  • provide probity practitioners with full access to records, people and meetings
  • establish independent reporting lines
  • evaluate whether value for money was achieved.

With respect to the independence aspects, the report noted a tendency among the participating agencies to rely on a limited number of probity practitioners, sometimes on a continuous basis, which threatened actual or perceived independence.

The report also found that the NSW Procurement Board had not effectively monitored compliance with the direction, since the direction’s introduction in 2013.

The report recommended that:

1.  government agencies review and revise probity policies, processes and systems to ensure they:

  • comply with the Directions
  • establish criteria (in particular qualitative criteria) for engaging the probity practitioners
  • evaluate the qualifications and performance of probity practitioners
  • capture lessons learnt
  • ensure internal audit functions regularly review probity governance and processes

2.  the NSW Procurement Board develop and implement criteria to ensure prequalified practitioners have the required capability and experience to deliver quality outcomes

3.  the Department of Premier and Cabinet develop probity guidance to assist agencies with the consistent application of the direction.

Author: Scott Alden & Jeffery Shi

In the media

Tougher conditions for paroled sex offenders
All serious sex offenders on parole are now subject to 24/7 GPS tracking and enhanced supervision, thanks to a $21.8 million investment by the NSW Government. The tough new approach in supervising these offenders also includes mandatory reporting of all parole breaches – except administrative breaches – to the SPA (05 June 2019).  More...

Commission to develop practical resources on protecting freedom of religion in the workplace Rights and Freedoms
The Australian Human Rights Commission will develop resources to help employers and employees navigate issues on protecting freedom of thought, conscience and religion in the workplace (04 June 2019).  More...

ICAC finds former prison general manager and officers corrupt
The NSW Independent Commission Against Corruption (ICAC) has found that the former general manager/governor of Lithgow Correctional Centre (LCC) and five Corrective Services NSW (CSNSW) officers engaged in serious corrupt conduct in relation to the use of excessive force on an inmate and the associated cover-up of the incident (03 June 2019).  More...

Have your say on the NSW Civil and Administrative Tribunal
The Department of Justice is conducting a review of the Civil and Administrative Tribunal Act 2013, which established the NSW Civil and Administrative Tribunal (NCAT), to find out how well it is working, and to look at reforms that could strengthen access to justice for people in NSW (31 May 2019).  More...

Kings Cross businesses plead for relaxation of lockout laws
The business community in Sydney’s Kings Cross is pleading for a relaxation of the controversial lockout laws and the scrapping of an ID scanning system which it says are destroying their livelihood and their area (31 May 2019).  More...

NSW Information Commissioner issues information Access Guideline 7: Open Data
The NSW Information Commissioner, Information and Privacy Commission (IPC) CEO and Open Data Advocate, Ms Elizabeth Tydd, today issued the Information Access Guideline 7: Open Data. The guideline is issued by the Information Commissioner under section 12(3) of the GIPA Act (30 May 2019).  More...

First female Senior Public Defender for NSW
Attorney General Mark Speakman today announced the appointment of Belinda Rigg SC as Senior Public Defender for NSW, the first woman to be appointed as NSW’s Senior Public Defender (29 May 2019).  More...

Law changed to protect prison officers
The NSW Liberals & Nationals Government will today move to close a legal loophole and enhance prison officers’ safety by giving them greater certainty when managing inmates, with the amendments to the Crimes (Administration of Sentences) Act 1999 (28 May 2019).  More...

Fight against corruption requires spotlight on lobbying by vested interests
To strengthen democracy and trust in politics, the NSW public must know who is influencing political decisions, the Human Rights Law Centre stated in a submission to the NSW Independent Commission Against Corruption (27 June 2019).  More...

Auditor slaps down NSW agencies over probity policy
An audit has identified short fallings when it comes to the use of procurement probity safeguards. Three key NSW agencies have been slapped down by the state’s auditor-general for failing to comply with procurement probity policies and ensure they are getting value for money (27 May 2019).  More...

In practice and courts

High Court of Australia
High Court of Australia Bulletin [2019] HCAB 4 (30 May 2019)

Decisions of interest
June 03 2019 Practice support
The NSW Court of Appeal has just published its latest Decisions of Interest Bulletin on the Court of Appeal website.  More...

NSW Information Commissioner issues Information Access Guideline 7: Open Data
This guideline provides information and assistance to public sector agencies and citizens regarding open data including the definition of open data, and opening data or release of government data using the access to information pathways under the GIPA Act. The Information Access Guideline 7: Open Data is now available on the IPC website (30 May 2019).

Review of the Civil and Administrative Tribunal Act 2013
The Department of Justice is conducting a review of the Civil and Administrative Tribunal Act 2013 (NSW) to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. Submissions to the review close on 10 July 2019.  More...

NCAT Legal Bulletin
The NCAT Legal Bulletin provides case summaries of relevant and interesting case law of significance to the work of NCAT.  More...

Published – articles, papers, reports

Skewed priorities: comparing the growth of prison spending with police spending
Andrew Bushnell; Institute of Public Affairs: 07 June 2019
Australia has seen rapid, unsustainable growth in its incarceration rate. Over the past ten years, the proportion of Australian residents who are incarcerated has risen by 30 percent. The purpose of this paper is to show what this increase means in real terms.  More...

Quantifying the legal and broader life impacts of domestic and family violence
Christine Coumarelos; Law and Justice Foundation of New South Wales: 03 June 2019
Women experiencing domestic and family violence are ten times as vulnerable to legal problems as the rest of the population, according to this research.  More...

NSW Recorded Crime Statistics quarterly update March 2019
Boscar: 06 June 2019

Constitutional 'borrowing' and freedom of expression: can Australia learn from the US First Amendment?
Roberts, J;  (2019) 44(1) Alternative Law Journal 56-62
Conparative law - USA – Australia.  More...

The principle of legality: protecting statutory rights from statutory infringement?
Chen, B; (2019) 41(1) Sydney Law Review 73-104
R v Thoburn - R (Simms) v Secretary of State for the Home Department - Australian Constitution, s51 - Charter of Human Rights and Responsibilities Act 2006 (Cth) - UK – Australia.  More...

Cases

Elzahed v Kaban [2019] NSWSC 670
ADMINISTRATIVE LAW – judicial review – whether Solicitor-General validly authorised proceedings against plaintiff – whether mandatory considerations should be implied – no error in Solicitor-General’s decision.   
CRIME – appeals – appeal against conviction – where plaintiff convicted of an omission – whether plaintiff under a legal duty to perform the omitted act – whether statute creates the legal duty to perform the omitted act.   
CRIME – appeals – appeal against conviction – whether magistrate erred as to the elements of the offence.   
CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff intended to communicate disrespect – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law.   
CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff’s behaviour was disrespectful to the judge – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law.   
CRIME – appeals – appeal against conviction – whether magistrate erred in finding that there was no evidence that plaintiff held a relevant religious belief – whether magistrate’s finding is relevant to whether plaintiff’s conviction is unsafe.   
CRIME – appeals – appeal against conviction – whether magistrate erred in holding that plaintiff’s failure to stand was disrespectful to the court – whether magistrate erred with respect to meaning of “disrespectful”.   
CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff knew of the relevant court practice and convention – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law.   
CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff’s failure to stand communicated disrespect – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law.
CONSTITUTIONAL LAW – implied freedom of political communication – whether s 200A of the District Court Act infringes the implied freedom of political communication – where plaintiff not engaged in political communication – whether it would be appropriate to determine whether the impugned provision infringes the implied freedom of political communication.   
CONSTITUTIONAL LAW – Chapter III of the Constitution – whether s 200A of the District Court Act is invalid because it is a state law that affects the exercise of federal jurisdiction.   
CONSTITUTIONAL LAW – Chapter III of the Constitution – whether Chapter III contains the implication that a law may not unduly burden a person’s participation in the exercise of Commonwealth judicial power – whether s 200A of the District Court Act is inconsistent with alleged implication.   
CRIME – appeals – appeal against sentence – where plaintiff sentenced to 75 hours of community service – whether magistrate’s expression of views on irrelevant matters may have caused sentencing discretion to miscarry – whether plaintiff denied procedural fairness as a result of magistrate taking into account matters without alerting plaintiff to the possibility that she may do so.

Samimi v Department of Fair Trading [2019] NSWCATOD 86
ADMINISTRATIVE Law – administrative review – home building - fit and proper person - whether conduct constitutes failure to disclose – whether matters required disclosure – meaning of fit and proper having regard to legislative scheme – weight of evidence – unchallenged evidence of conduct.

McLachlan v Commissioner of Police, NSW Police Force [2019] NSWCATAD 109
ADMINISTRATIVE LAW – public access to government information –Request for information concerning a complaint alleging police misconduct – Personal information – whether prejudice to the effective exercise of an agency’s functions – public interest in transparency and accountability - balancing public interest considerations – personal information.

DTM v NSW Trustee and Guardian [2019] NSWCATAD 105
ADMINISTRATIVE REVIEW – dismissal application on grounds that the applicant has failed to identify a decision of the respondent that is an administratively reviewable decision.

McIntosh v Independent Liquor and Gaming Authority [2019] NSWCATAD 101
ADMINISTRATIVE REVIEW – Liquor regulation – Hotel licence – Three strike regime – Imposition of first strike upon former licensee – Where former licensee committed prescribed offence of permitting intoxication on the licensed premises – Meaning of serious harm - Whether patron vomiting constituted serious harm – Whether respondent was entitled to consider potential harm, or to speculate as to harm which might have occurred – Whether the circumstance that the applicant was no longer the licensee at the licensed premises was relevant to the decision to impose a first strike.

Webb v Port Stephens Council [2019] NSWCATAD 107
ADMINISTRATIVE LAW- freedom of information- government information public access-advance deposit requirement-refusal to progress application-open access information- ss6,18, 64,68 and 80 Government Information (Public Access) Act 2009 (NSW).

Amos v Department of Finance, Services & Innovation [2019] NSWCATAD 96
ADMINISTRATIVE LAW – Government Information – access application - building certifier’s response to complaint - confidential information - information provided in confidence – prejudice effective exercise by an agency of the agency's functions - personal information.

O’Brien v Wollongong City Council [2019] NSWCATAD 90
ADMINISTRATIVE REVIEW – Government Information (Public Access) – application for review by person aggrieved by decision to refuse to release information – public interest considerations.

Zidar v Office of the NSW Attorney General [2019] NSWCATAD 97
ADMINISTRATIVE LAW – application to use a recording device to record a case conference – decision to list summary dismissal application for hearing.

Legislation

Gazetted

Annual Federal Courts and Tribunals Fee Increases from 1 July 2019
04/06/2019 - Pursuant to section 16 of the High Court of Australia (Fees) Regulations 2012, from 1 July 2019 the fee prescribed for each item of Schedule 1 to those Regulations will be the amount listed here.

NSW

Bills introduced

Government – 07 June 2019
Local Government Amendment Bill 2019

Non-Government – 07 June 2019
Parliamentary Budget Officer Amendment Bill 2019

Government – 31 May 2019
Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019
Amendments to the Crimes (Administration of Sentences) Act 1999 will allow inmates who misbehave or assault staff to have prison privileges withdrawn without it affecting criminal or offence-in-custody proceedings.

Non-Government – 31 May 2019
Liquor Legislation Amendment (Repeal of Lock-out Laws) Bill 2019
Public Finance and Audit Amendment (Northern Beaches Hospital) Bill 2019

Bills passed by both Houses of Parliament – 07 June 2019
Statute Law (Miscellaneous Provisions) Bill 2019

Proclamations commencing Acts
Justice Legislation Amendment Act (No 3) 2018 No 87 (2019-211) — published LW 31 May 2019

Regulations and other miscellaneous instruments
Legal Profession Uniform Admission Amendment (Accreditation) Rule 2019 (2019-231) — published LW 7 June 2019
Victims Rights and Support (Victims Support Levy) Amendment Notice 2019 (2019-232) — published LW 7 June 2019
Electoral Funding (Adjustable Amounts) (Political Donation Caps) Notice 2019 (2019-213) — published LW 31 May 2019

Victorian legislation can be accessed here.

NSW Government Bulletin editor:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution)
T: +61 2 8083 0477
E: Christine.Jones@holdingredlich.com

Other contacts:
Dispute Resolution, Inquiries and Administrative Law
Greg Wrobel, Partner
T: +61 2 8083 0411
E: Greg.Wrobel@holdingredlich.com

Bede Haines, Partner
T: +61 2 8083 0447
E: Bede.Haines@holdingredlich.com

Workplace Relations & Safety
Michael Selinger, Partner
T: +61 2 8083 0430
E: Michael.Selinger@holdingredlich.com

Privacy & Data Protection
Lyn Nicholson, General Counsel
T: +61 2 8083 0463
E: Lyn.Nicholson@holdingredlich.com

Planning, Property & Environment
Robina Kidd, Partner
T: +61 2 8083 0454
E: Robina.Kidd@holdingredlich.com

Vanya Lozzi, Partner
T: +61 2 8083 0462
E: Vanya.Lozzi@holdingredlich.com

Cameron Sheather, Partner
T: +61 2 8083 0461
E: Cameron.Sheather@holdingredlich.com

Breellen Warry, Partner
T: +61 2 8083 0420
E: Breellen.Warry@holdingredlich.com

Lindsay McGregor, Partner
T: +61 2 8083 0459
E: Lindsay.McGregor@holdingredlich.com

Alexander McNutt, Special Counsel
T: +61 2 8083 0495
E: Alexander.McNutt@holdingredlich.com

Peter Holt, Special Counsel
T: +61 2 8083 0421
E: Peter.Holt@holdingredlich.com

Construction and Infrastructure (Projects and Procurement)
Scott Alden, Partner
T: +61 2 8083 0419
E: Scott.Alden@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Christine Jones

Published by Christine Jones

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