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NSW Government Bulletin

11 December 2019

#Government

Published by:

Victoria Gordon

NSW Government Bulletin

New rights for tenderers to challenge NSW Government procurement processes

A new statutory regime is now available for tenderers to challenge certain NSW Government tender processes.

The new regime mirrors the Commonwealth regime under the Government Procurement (Judicial Review) Act 2018 (Cth) which has been in force since April this year, as reported here.

Overview

The Public Works and Procurement Amendment (Enforcement) Act 2018 (NSW) (Act), which commenced on 29 November 2019, allows “affected applicants” to make a written complaint about the conduct of a government agency for an alleged contravention or proposed contravention of an “enforceable procurement provision.”

Under the Procurement (Enforceable Procurement Provisions) Direction 2019 issued by the NSW Procurement Board, the “enforceable procurement provisions” include a broad range of provisions in relation to non-discrimination, exclusion of suppliers, requirements to use open approaches to market, circumstances where limited tendering is permitted, conditions for participation and awarding contracts based on evaluation criteria.

The relevant procurement thresholds for the “enforceable procurement provisions” are (subject to some exceptions):

  • $9.247 million for a procurement of construction services
  • $657,000 for a procurement of goods or any other services.

For a full wrap up of the process under the new regime, click here.

Authors: Scott Alden & Victoria Gordon

In the media

Free and equal: An Australian conversation on human rights inquiry
The Law Council has prepared a submission to the Australian Human Rights Commission’s (AHRC’s) Free and equal: An Australian conversation on human rights inquiry. In addition to a human rights act, the submission sets out a number of mechanisms to promote and uphold human rights in Australia (05 December 2019).  More...

LCA: Parliament should reject flawed family court merger Bill
Legislation merging the specialist Family Court into a single generalist court will not alleviate the fundamental problems plaguing the family law system, including the risk of victims of family violence falling through the cracks (05 December 2019).  More...

Court reforms to deliver better outcomes for families
Fixing the broken structure of the family court system and helping families achieve faster and lower cost resolutions are the key aims of legislation to be introduced into Federal Parliament (05 December 2019).  More...

Overhaul of APS sees cuts to Govt Departments
In a major overhaul of the Australian Public Service, the prime minister has announced that federal government departments will be reduced from 18 to 14 and five secretaries sacked. From February 1, four new departments will be created and Services Australia will become an executive agency (05 December 2019).  More...

Downgrading of Australia’s open democracy status a stark reminder of the need to create an Australian Charter of Human Rights and Freedoms
Australia’s status as an open democracy has been downgraded in a blunt assessment released this week by a global alliance of human rights organisations (05 December 2019).  More...

ACCC releases customer loyalty schemes final report
The ACCC has released its final report on Customer loyalty schemes. It calls for legislative reforms to protect consumers, including in relation to data practices and privacy. (03 December 2019).  More...

View Customer loyalty schemes final report

ALRC: Report Launch – the future of law reform
The Australian Law Reform Commission (ALRC) is releasing a report suggesting an ambitious agenda for law reform over the next five years (02 December 2019).  More...

New PS engagement tools put to work
The Department said the new APS Framework for Engagement and Participation would include guidance on engagement principles and standards for the APS and ways to open dialogue for “deliberative engagement” (02 December 2019).  More...

Tis the season to be wary online
The Office of the Australian Information Commissioner (OAIC) has reminded shoppers and retailers to be careful about the information they share online this festive season (02 December 2019).  More...

LCA: Act now to bolster government accountability and rule of law
A raft of legislation before parliament this week risks seriously undermining the administration of justice and the rights of all Australians, the Law Council of Australia has warned. The Law Council is concerned about legislation to validate unlawful decisions that have been taken by the Australian Criminal Intelligence Commission and broaden the authorisation process for operations or investigations (01 December 2019).  More...

Pilot program to save time and money for separating couples
A simpler and more cost-effective process to help separating couples divide their property assets will be trialled in four Federal Circuit Court Registries from January 2020. The Small Claims Property Pilot will run for two years in Brisbane, Parramatta, Adelaide and Melbourne to couples with property pools under $500,000. (29 November 2019).  More...

NSW leads work on child sexual assault reforms
A NSW Government-led process to significantly reform evidence law in Uniform Evidence jurisdictions across Australia will help achieve a more effective and consistent response in prosecutions involving child sexual abuse (29 November 2019).  More...

Nation unites on defamation reform
The NSW-led process to update national defamation laws reached a new milestone, with Australia’s Attorneys-General agreeing to release draft reforms for public consultation (29 November 2019).  More...

In practice and courts

ALRC Discussion Paper on corporate criminal responsibility
The Discussion Paper makes 23 proposals for reform and asks 11 questions on particular areas of reform.
A number of aspects of corporate criminal liability are discussed, including: the division between criminal offences and civil penalty provisions; the method for attributing liability to corporations; individual liability for corporate offences; sentencing; and, specific issues such as illegal phoenix activity.  More...

The ALRC is seeking submissions on the Discussion Paper until 31 January 2020.

Federal Court of Australia—new Defamation Practice Note
The Federal Court of Australia has issued a new Defamation Practice Note (DEF-1), taking effect from 12 November 2019.  More...
The Court welcomes views in respect of the Defamation Practice Note. Feedback should be provided by email addressed to Rupert Burns, the National Co-ordinating Registrar for the Defamation Sub area at practice.notes@fedcourt.gov.au. Feedback should include a short summary of the key issues to be brought to the Court’s attention and relevant contact details.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions, including immigration and citizenship. Issue No. 48/2019, (2 December 2019).  More...

Council of Attorneys-General (CAG) communiqué
29 November 2019 - A meeting of the Council of Attorneys-General (CAG) was held on 29 November 2019 in Adelaide, South Australia. All jurisdictions were represented by Ministers.  More...

Current Consultations – 06 December 2019

Finance and Public Administration Legislation Committee
New National Integrity (Parliamentary Standards) Bill 2019
Public Governance, Performance and Accountability Amendment (Tax Transparency in Procurement and Grants) Bill 2019
Foreign Affairs, Defence and Trade References Committee
Australia’s declarations made under certain international laws

Legal and Constitutional Affairs Legislation Committee
Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019 [Provisions]
Federal Circuit and Family Court of Australia Bill 2019 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions]
Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019
Transport Security Amendment (Testing and Training) Bill 2019
Transport Security Amendment (Serious Crime) Bill 2019 [Provisions]

Community Affairs Legislation Committee
Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019

ANAO Performance audit in-progress: Defence’s management of its public communications and media activities
Due to table: December 2019: The objective of this audit is to assess the effectiveness and appropriateness of the Department of Defence’s management of its public communications and media activities.  More...

LSC: New Australian Legal Register will Safeguard Consumers
The Legal Services Council (LSC) announces the launch of a new Register that consumers can use to easily check the details of legal practitioners in NSW and Victoria. The Australian Legal Profession Register is now available via the Legal Services Council website. To search the Australian Legal Profession Register (06 December 2019).  More... 

LSC: Public Submissions invited: Review of MIS Consultation Paper UGR 91A-91D
The LSC is inviting submissions on the Draft Consultation Paper for the Review of Managed Investment Schemes Uniform General Rules 91A-91D. Submissions are open until Friday 31 January 2020 (06 December 2019).  More...

NSW Department of Justice: Current Consultations
The NSW Department of Communities and Justice is conducting a review of the Inspector of Custodial Services Act 2012 to determine whether its policy objectives remain valid and its terms remain appropriate for securing those objectives. Submissions close on 20 December 2019. The Department of Communities and Justice is seeking feedback on the Graffiti Control Act 2008 to determine whether the policy objectives of the Act remain valid and if its terms remain appropriate for securing those objectives. Submissions close on 10 February 2020.  More...

JUDCOM: Civil Trials Bench Book — Update 40, December 2019
The following changes have been incorporated into this update: [1-0240] Broadcast of judgments; [1-0400] Proceedings in public suppression orders; [1-0930] Interpreters — implementation; [2-0010] Case management overview; [2-2680] Abuse of process; [4-1515] Privilege — observations on the operation of s 118; [5-4000] Defamation; [8-0000] Costs and [10-0300] Civil and criminal contempt.  More...

JUDCOM: The Bar Book Project​ is launched
The Public Defenders NSW launched the Bar Book Project on 8 November 2019. The Bar Book is hosted on the Public Defenders’ website. The Bar Book Project has developed chapters of research relating to experiences of disadvantage and deprivation. The purpose of this resource, for legal practitioners, is to assist in the preparation and presentation of evidence to establish the application of the Bugmy v The Queen (2013) 249 CLR 571 principles (19 November 2019).  More...

NSW IPC: Statement - Information Commissioner action to promote compliance with Information Access Guideline
Information Commissioner action to promote compliance with Information Access Guideline 1 - For Local Councils on the disclosure of information (returns disclosing the interest of councillors and designated persons) is outlined here (29 November 2019).  More...

NCAT: Recognising NCAT's contribution to best practice guidelines
Members of NCAT’s Guardianship Division led the completion of a national project that developed best practice guidelines to encourage people with a decision-making disability to meaningfully participate in Tribunal proceedings. The full report is available on the AGAC website. Many thanks to the NCAT Members who contributed their time and expertise developing these Guidelines (05 December 2019).  More...

DCJ NSW: Free diary gives seniors 2020 knowledge
NSW seniors are encouraged to pick up a copy of the free 2020 Legal Topics for Older Persons Diary to help them understand their legal rights and navigate the justice system (December 2019).  More...

NSW Justice: Review of the Graffiti Control Act 2008
The Department of Communities and Justice is seeking feedback on the Graffiti Control Act 2008 to determine whether the policy objectives of the Act remain valid and if its terms remain appropriate for securing those objectives. Submissions close on 15 December 2019.  More...
Decisions of interest: Practice support
The NSW Court of Appeal has published its latest Decisions of Interest Bulletin on the Court of Appeal website (November 2019).  More... 

Published – articles, papers, reports

Rethinking sentencing for young adult offenders
Anna Chalton, Anusha Kenny, Hoa Nguyen; Sentencing Advisory Council (Vic)
This report assesses the available sentencing options for offenders aged 18 to 25 in Victoria. The report reviews the literature on young adult offenders and their offending trajectories. It also analyses sentencing outcomes for young adult offenders in Victoria and explores approaches to sentencing this age group in other jurisdictions (03 December 2019).  More...

The future of law reform: a suggested program of work 2020-25
Australian Law Reform Commission
This report seeks to identify the most pressing areas for law reform in Australia that would be suitable for an inquiry by the Australian Law Reform Commission (ALRC). If accepted, the topics set out in this report could form a set program of work for the ALRC over the next five years. This is the first time the ALRC has undertaken this process (02 December 2019).  More...

Challenging power, fighting discrimination
Amnesty International
This publication summarises the key challenges affecting women human rights defenders (WHRDs), and includes input collected through interviews with WHRDs in all continents. They all insist that more action is urgently needed from state and non-state actors, so that they can continue their critical human rights work, free from violence, discrimination, harassment and other violations (29 November 2019).  More...

Delivering government priorities: corporate plan 2019–2023
Department of the Prime Minister and Cabinet (Australia); Government of Australia
This document sets out how the Department of the Prime Minister and Cabinet intends to deliver on their responsibilities, and addresses their operating environment, their people and capability, their risk management and oversight and their key activities and performance measures (29 November 2019).  More...

APSC: State of the Service Report 2018–19
The State of the Service Report 2018–19 was tabled in both Houses of Parliament on Tuesday 26 November 2019. The report is informed by data from the annual APS agency survey and APS employee census, as well as the APS Employment Database.  More...

Implementation of the My Health Record System
ANAO
The audit objective was to assess the effectiveness of the implementation of the My Health Record system under the opt-out model (25 November 2019).  More...

Cases

Cheung v Commissioner of Police [2019] NSWCATAD 249
ADMINISTRATIVE LAW – Freedom of Information – access to information – secrecy provision in other legislation – whether overriding public interest against disclosure – form of access – provision of alternative form of access

Robert Noble v Mosman Municipal Council [2019] NSWCATAD 247
Administrative Law – Civil and Administrative Tribunal – administrative review jurisdiction – enabling legislation - no jurisdiction to review a decision with respect to a planning approval made under Part 1 of Chapter 7 of the Local Government Act 1933 – no jurisdiction to review a decision made with respect to an Application for Heritage Exemption under the Mosman Local Environmental Plan 2012.

Choi v NSW Department of Justice [2019] NSWCATAD 248
ADMINISTRATIVE LAW – Freedom of information -application for review out of time - whether reasonable explanation for the delay 

Liang v University of Technology Sydney (No 3) [2019] NSWSC 1705
ADMINISTRATIVE LAW – administrative tribunals – statutory appeals from administrative authorities to courts – leave to appeal only available for error of law – no error of law identified – leave to appeal refused

DKV v Southern NSW Local Health District (No 2) [2019] NSWCATAD 243
PRIVACY- Healthcare Privacy Principles-breaches conceded- psychological harm-damages

Rapisarda v Commissioner of Police; Housego v Commissioner of Police; Sheehy v Commissioner of Police; McDonald v Commissioner of Police [2019] NSWCATAD 242
HUMAN RIGHTS – Discrimination - Grounds – Sexual-orientation discrimination – Whether complaint of suspected drug use was made against applicant police officers on the ground of their homosexuality – Identification of relevant comparator – Whether officers were subjected to a detriment – Anti-Discrimination Act 1977 s 49ZG, s 49ZH 
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Vicarious liability – Whether Police officers “employees” for the purposes of the Act – Whether Commissioner of Police liable for discriminatory acts of Police officer – Anti-Discrimination Act 1977 s 4B, s 53  
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Defences – Whether Police officer under statutory obligation to lodge discriminatory complaint – Anti-Discrimination Act 1977 s 54  
HUMAN RIGHTS – Discrimination – Victimisation – Whether making of complaint against Police officer and making adverse comments on application for promotion after Police officer had raised possibility that he had been the subject of discrimination constituted victimisation – Anti-Discrimination Act 1977 s 50

Tang v Northern Sydney Local Health District [2019] NSWCATAD 241
ANTI-DISCRIMINATION – application for leave to proceed with complaint - complaint of victimisation – whether fair or just to

El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289
JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application
PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available
PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7

Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683
PRACTICE AND PROCEDURE – adjournment of proceedings – application for judicial review of administrative decision of the Minister for Agriculture and Forestry (“the Minister”) to close a Crown road and sell the land comprising the road to adjoining owners – plaintiff is one of the adjoining owners – Minister is the first defendant and has filed a submitting appearance – the other adjoining owner is the second defendant – the Minister’s failure to appear at the hearing makes it more difficult for the Court to determine what material was before the Minister at the time the challenged decision was made – Minister’s assistance sought to accurately determine the scope of the material before the decision-maker – what procedural directions should be undertaken to give the Court clarity about what materials were before the Minister at the time the decision was made.

Rapisarda v Commissioner of Police; Housego v Commissioner of Police; Sheehy v Commissioner of Police; McDonald v Commissioner of Police [2019] NSWCATAD 242
HUMAN RIGHTS – Discrimination - Grounds – Sexual-orientation discrimination – Whether complaint of suspected drug use was made against applicant police officers on the ground of their homosexuality – Identification of relevant comparator – Whether officers were subjected to a detriment – Anti-Discrimination Act 1977 s 49ZG, s 49ZH  
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Vicarious liability – Whether Police officers “employees” for the purposes of the Act – Whether Commissioner of Police liable for discriminatory acts of Police officer – Anti-Discrimination Act 1977 s 4B, s 53  
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Defences – Whether Police officer under statutory obligation to lodge discriminatory complaint – Anti-Discrimination Act 1977 s 54  
HUMAN RIGHTS – Discrimination – Victimisation – Whether making of complaint against Police officer and making adverse comments on application for promotion after Police officer had raised possibility that he had been the subject of discrimination constituted victimisation – Anti-Discrimination Act 1977 s 50

El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289
JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application  
PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available  
PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7

Legislation

NSW

Proclamations commencing Acts
Electoral Funding Amendment (Cash Donations) Act 2019 No 22 (2019-584) — published LW 6 December 2019
Justice Legislation Amendment Act 2019 No 10 (2019-585) — published LW 6 December 2019
The object of this Proclamation is to commence provisions that amend the Law Enforcement (Powers and Responsibilities) Act 2002 and regulations made under that Act, enabling applications for notices to produce documents to be made by email and any other method authorised by the regulations, at all times
Justice Legislation Amendment Act 2019 No 10 (2019-586) — published LW 6 December 2019
The object of this Proclamation is to commence amendments to the Coroners Act 2009 that relate to the requirement to report deaths and the conduct of non-invasive preliminary examinations of a deceased person’s remains

Regulations and other miscellaneous instruments
Electoral Funding (Adjustable Amounts) (Administrative and New Party Policy Development Funding) Notice 2019 (2019-588) — published LW 6 December 2019
Liquor Amendment (Night Time Economy) Regulation 2019 (2019-589) — published LW 6 December 2019

Bills assented to
Children’s Guardian Act 2019 No 25 — Assented to 04 December 2019

Regulations and other miscellaneous instruments
Child Protection (Working with Children) Amendment (Proof of Identity Requirements) Regulation 2019 (2019-570) — published LW 29 November 2019

Bills assented to
Electoral Funding Amendment (Cash Donations) Act 2019 No 22 — Assented to 26 November 2019
Gambling Legislation Amendment (Online and Other Betting) Act 2019 No 24 — Assented to 26 November 2019
For the full text of Bills, and details on the passage of Bills, see Bills

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Victoria Gordon

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