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NSW Government Bulletin

14 April 2021

#Government, #Technology, Media & Telecommunications

Published by:

Clare Giugni

NSW Government Bulletin

New survey shows that the NSW Government is moving forward with its artificial intelligence strategy

NSW Government’s AI strategy

The NSW Government has made a commitment to the use of appropriate artificial intelligence (AI) technologies, as evidenced by the NSW Government’s Artificial Intelligence Strategy, Ethics Policy and User Guide released in September 2020.

The NSW Government is not the only government, either in Australia or globally, seeking to use AI to improve economic and social outcomes for the community. Governments hold vast stores of information that should be used, through AI, to achieve such outcomes. On the other hand, there are clear concerns as to how information collected by governments is used and whether outcomes achieved through the use of AI technologies, such as automated decision making processes, are appropriate and effective.

These and other concerns regarding the efficient and ethical use of AI are addressed in the September 2020 documents. The Government’s Strategy focuses on the need to ensure that AI is used for the public good. It also builds on the positive experiences and the lessons learned from the Government’s current use of AI, including in areas as diverse as to assist in the maintenance of trains to protecting against cyber attacks. The Government has recognised that AI creates significant ethical issues and that, if the community is to support the use of AI, those must be addressed “head on”.  For that reason, the Artificial Intelligence Ethics Policy which is based on a number of overarching principles, namely, trust, transparency, customer benefit, fairness, privacy and accountability, is of critical importance and its implementation and use will be closely scrutinised.

As part of the Artificial Intelligence Strategy, the Government is establishing the NSW Artificial Intelligence Advisory Committee, chaired by NSW Chief Data Scientist Dr Ian Oppermann, to review and provide ongoing advice on the use of artificial intelligence in government projects. This Committee will play an important role in developing community trust in the use of AI technologies.

NSW Government request for input

The NSW Government has now called on the community to provide input as to how AI should be used by the Government for the benefit of the community. The types of input the Government is seeking includes asking whether individuals are comfortable with the Government using AI to inform its decisions, such as to speed up the processing of decisions regarding whether to grant permits or licences, recruitment decisions and what services the Government will offer to particular individuals. The survey also asks for more general input as to how respondents believe the Government could ethically use AI.

Interestingly, the Government has included in its survey a “Quick Poll”, with the responses available in real time.  That poll asks respondents what they believe the top issue is that the NSW Government should address in considering AI.  At the time of writing, the key issue selected by respondents was how AI could be used for the more effective and efficient delivery of Government services.  There is no doubt that this is a key issue that should be the focus for the NSW Government.

The public consultation on artificial intelligence use is being undertaken by the NSW Government at an opportune time. Involvement in the early stages of AI use, policy and planning will allow the Government to bring the community on board with its AI proposals. Engagement with the public will ensure the Government can meet community expectations and build public trust as it increasingly expands its data use and capabilities within departments and agencies.

How did we get here: A quick look at the data policy landscape in Australia

As mentioned, governments at all levels in Australia have as a key area of focus the appropriate use of the data that is held.  Increased implementation of AI technologies which by their very nature, requires the use of significant amounts of data, is only one manifestation of government policy outcomes in this area.

Much of the public policy thinking in Australia around appropriate data use has been driven by the Commonwealth Productivity Commission’s seminal inquiry into Data Availability and Use in 2017 (Inquiry), which has sparked multiple legislative reforms regarding data sharing and use.

The Productivity Commission made a number of recommendations to remove barriers to Australian governments, businesses and not-for-profits taking advantage of the benefits that would arise from the greater exploitation of data. Australia.  The Productivity Commission’s view was that to enable better use of our data resources, transparent system of data sharing and use were required, to allow users to have greater confidence in data processes. It can be seen that the NSW Government approach to AI reflects these underlying themes of the Productivity Commission’s review.

The Commonwealth Government’s approach to AI

The Inquiry has also influenced the Commonwealth Government’s approach to AI.  It has released an Artificial Intelligence Ethics Framework of its own to assist both business and government entities to adopt AI in accordance with ethical principles. That Ethics Framework places emphasis on fairness in artificial intelligence – to ensure systems are widely accessible and do not unfairly discriminate against particular individuals, communities or groups of Australians – and on human-centred values to promote the diversity and autonomy of individuals.

The Artificial Intelligence Ethics Framework provides specific ethical criteria for artificial intelligence projects which are closely aligned to the principles adopted in the NSW Government’s Ethics Policy. For example, to ensure that a project will meet the Ethics Policy’s “transparency and explainability” principle, there should be transparency and responsible disclosure to ensure people know when they are being significantly impacted by an AI system, and can find out when an AI system is engaging with them.

A future without HAL

For readers old enough to remember the movie 2001: A Space Odyssey, our future does not include HAL. The guardrails that Australian governments are implementing for the use of AI will work to ensure that data is used responsibly and ethically in the development of AI technologies – including AI technologies that will improve government service delivery and the more efficient and effective use of public resources.

Authors: Angela Flannery & Clare Giugni

In the media

LCA: Government recognises need for cultural change to sexual harassment laws
The Law Council of Australia welcomes the Federal Government’s engagement with the important issue of sexual harassment as a matter for the national agenda. Recent events have emphasised that fresh and comprehensive responses are required to drive the necessary, and overdue, cultural change (08 April 2021).  More...

Australian Government's response to Respect@Work report
In ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’, the Government provides its response and sets out its long-term commitment to preventing and addressing sexual harassment (08 April 2021).  More...

Commission welcomes response to Respect@Work report
The AHRC welcomes the considered and constructive response to the 55 recommendations made in its 2020 Respect@Work report on the national inquiry into sexual harassment in Australian workplaces. The report and the Federal Government’s response, with whole of community buy in, paves the way for globally ground-breaking reform on workplace sexual harassment (08 April 2021).  More...

DTA renews MoU with AIIA
The Digital Transformation Agency (DTA) has signed an ongoing Memorandum of Understanding (MoU) with the Australian Information Industry Association (AIIA), aimed at maintaining collaboration between the public sector and the ICT industry to deliver world class citizen and government digital services that benefits Australia’s digital industry (08 April 2021).  More...

Police targeting of NSW solicitor completely unacceptable: President, Law Society of NSW
Michael Fuller APM, on behalf of the legal profession, is expressing concerns about the conduct uncovered by the LECC report relating to Operation Monza. The deliberate targeting of a solicitor, as uncovered by the Commission, so as to impede his or her ability to represent his or her client at court, is completely unacceptable and has raised significant concerns across the legal profession (07 April 2021).  More...

Stage 2 defamation reform process begins
Attorney General Mark Speakman said the second stage of the NSW-led review of national defamation laws opens in new window will examine the extent to which platforms such as search engines and social media sites should be liable for reputation-damaging material published online (07 April 2021).  More...

Own motion investigation into Services Australia’s Income Compliance Program: A report about Services Australia’s implementation of changes to the program in 2019 and 2020
The Ombudsman investigated Services Australia’s administration of the Income Compliance Program to seek assurance that Services Australia’s processes for identifying and refunding debts raised using income averaging was, and continues to be, fair and transparent (06 April 2021).  More...

LCA: A national response to family, domestic and sexual violence is needed
LCA says many of the report’s 88 recommendations aim to address the insidious and ubiquitous problem of family violence on a national level, but it is disappointing that the report did not consider or call for additional funding for the courts to adequately address family violence in the justice system (06 April 2021).  More...

New federation website goes national
A new source of information about the architecture of Australia’s federal relations has been launched by the Department of the Prime Minister and Cabinet. Opening the new website, PM&C said it provided the latest updates on the National Cabinet, the National Federation Reform Council and other intergovernmental bodies (05 April 2021).  More...

Agencies unveil staff census numbers
The APSC has released the 2020 APS Employee Census reports collected by most APS agencies as well as the combined APS-wide report. APS Commissioner congratulated the agencies that chose to reveal their data, to demonstrate its commitment to transparency and accountability. Access to all the reports can be found on the APSC website (05 April 2021).  More...

Law reformers cut to the chase
The ALRC has adopted a new approach to consultation as a way of encouraging greater engagement with a wider cross-section of academics, legal professionals and the community. The ALRC will be seeking formal submissions in response to the new law reform proposals and consultation questions set out in the consultation paper to be released at the end of April (05 April 2021).  More...

Defamation reforms
Attorneys-General have now agreed that New South Wales, South Australia, Victoria and all other jurisdictions that are able to do so will commence the Model Defamation Amendment Provisions 2020 on 1 July 2021, and remaining jurisdictions will commence those provisions as soon as possible thereafter (01 April 2021).  More...

Reappointment of Sex Discrimination Commissioner and Age Discrimination Commissioner
Attorney-General Michaelia Cash congratulates Ms Kate Jenkins and the Hon Dr Kay Patterson AO on their reappointment as Commissioners of the Australian Human Rights Commission (01 April 2021).  More...

Appointment to the Federal Circuit Court of Australia
Senior Registrar Colin Campbell, Ms Jennifer Howe and Mr Jonathan Davis QC have been appointed as judges of the Federal Circuit Court of Australia, commencing 6 April 2021 (01 April 2021).  More...

Newcastle lockout conditions to be lifted in trial
Patron lockout and trading hour restrictions are set to be lifted across Newcastle pubs as part of a trial aimed at boosting the city’s night-time economy (31 March 2021).  More...

Cutting Edge Cloud Solutions warned for failing to join the TIO scheme
The ACMA has issued a formal warning to Melbourne-based phone services company Cutting Edge Cloud Solutions Pty Ltd for failing to join the TIO scheme. By failing to sign up, Cutting Edge was denying its customers proper access to dispute resolution avenues (31 March 2021).  More...

New regulatory technology could apply to communications and media sectors
An ACMA research paper has found advances in regulatory technology, such as artificial intelligence (AI), have application in the Australian communications and media sectors in areas such as compliance, reporting and risk management outcomes (30 March 2021).  More...

ALRC: New judicial impartiality background papers released
Two new background papers for the review into judicial impartiality have now been released (30 March 2021).  More...

ICAC investigates alleged threats by state MP over family property
The corruption watchdog will investigate whether NSW MP John Sidoti made "threats" to councillors at Canada Bay Council to pursue his personal interests (29 March 2021).  More...

In practice and courts

Law Council of Australia submissions
31 March 2021 – Law Council
Supplementary submission: Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

Law Council update
The Law Council produces a fortnightly newsletter which highlights the Law Council's important activities and advocacy. View the latest edition here.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Click here to read Issue No. 7/2021, 6 April 2021.

AustLII cyber law on the map
AustLII has announced the upcoming launch of the Cyber Law Map, an annotated guide to Australian cyber-related legislation and case law which is intended to be an evolving wiki categorising cyber law and case information. The non-commercial venture was launched on 25 March and is freely available.

AHRC: Independent review into Commonwealth parliamentary workplaces
The Commission will not be investigating nor making findings about individual allegations of bullying, sexual harassment or sexual assault as part of the review. The Commission will report on its findings and recommendations in a report to be tabled in Parliament in November 2021. The terms of reference outline the scope of the review in more detail. Click here to download the PDF.

OAIC submissions and reports
1 April 2021 – Digital Advertising Services Inquiry – Interim Report

OAIC: Independent review of the Credit Reporting Code
In April 2021, the Australian Information Commissioner and Privacy Commissioner will tender for an independent review of the Privacy (Credit Reporting) Code 2014 (the CR Code). This review is an opportunity to explore how the CR Code is operating in practice. Read more here. Learn more about the Code.

OAIC: Our FOI disclosure log
The information described in our disclosure log has been released by the OAIC under the Freedom of Information Act 1982 (FOI Act). Updated 08 April 2021. Click here to read more.

ANAO consultations
Due to table: April 2021. Open for contribution: Administration of the National Bushfire Recovery Agency. The objective of this audit is to assess the effectiveness of the National Bushfire Recovery Agency and its administration of the National Bushfire Recovery Fund.
Due to table: May 2021. Open for contribution: Australian National University’s Governance and Control Frameworks. The objective of this audit is to examine the effectiveness of the Australian National University’s governance and control frameworks.

ACMA reminder, NBN consumer experience rules
ACMA has enhanced NBN consumer experience rules to protect Australians during the final phase of the NBN migration. The enhancements have been made to the following rules: Service Continuity Standard; Service Migration Determination; Consumer Information Standard; Complaints Handling Standard. The enhancements to the Service Continuity Standard and Service Migration Determination started on 14 December 2020, while most enhancements to the Complaints Handling Standard and Consumer Information Standard started on 1 April 2021. Read more here.

LSC: Regulation of litigation funding schemes
The Legal Services Council has amended the Legal Profession Uniform General Rules 2015 with effect from 22 August 2020 so the prohibitions in sections 258(1) and (3) of the Legal Profession Uniform Law do not apply in relation to litigation funding schemes now regulated as managed investment schemes. The new rule will operate for 12 months to allow for consultation. See the Legal Services Council website.

Finance and Public Administration Legislation Committee
Data Availability and Transparency Bill 2020 [Provisions] and Data Availability and Transparency (Consequential Amendments) Bill 2020 [Provisions]. Report by Thursday, 29 April 2021.
Operation and management of the Department of Parliamentary Services. On 22 February 2021, the reporting date was extended to 19 May 2021.

Legal and Constitutional Affairs Legislation Committee
Judges’ Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020. Report by 5 April 2021.


Courts – Local Court COVID-19 update
Given the significant reduction in restrictions by government, the Chief Magistrate of the Local Court has rescinded all previous COVID-19 memoranda and replaced them with an updated memorandum effective since Monday, 29 March 2021.

Release of the revised ODPP guidelines
The Director of Public Prosecutions, Lloyd Babb SC, has released revised prosecution guidelines. The prosecution guidelines were settled following extensive consultations with key stakeholders within the criminal justice system. The prosecution guidelines are available on the ODPP website here.

Open justice review update
The NSW Law Reform Commission open justice review is examining the laws relating to access to, and disclosure and publication of, court and tribunal information. An online survey concerning important issues around open justice has been published. For those interested, the survey can be found 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 until 31 December 2021.

Review of Model Defamation Provisions
Attorneys General is seeking feedback on a discussion paper for the Stage 2 Review of the Model Defamation Provisions. Have your say by 19 May 2021.

Local Court of NSW – Chief Magistrate's Memo No 17 – COVID-19
Given the significant reduction in restrictions by Government, the Chief Magistrate has rescinded all previous COVID-19 memoranda and replaced them with the attached memorandum effective since 29 March 2021. The Chief Magistrate's memorandum is available here.

JUDCOM: Sexual Assault Trials Handbook
7 April 2021 – the text of the Sexual Assault Trials Handbook reflects the law as it stands at any given time.
[6-000] recent sexual assault law; [7-000] relevant literature – legal articles.

Published – articles, papers, reports

New tech applications for regulatory outcomes: Occasional paper
ACMA: 30 March 2021. The paper highlights research showing Australia is third in the world for the number of Regulatory Technology providers based in the country, only behind the USA and UK. Click here to learn more.

Own motion investigation into Services Australia’s Income Compliance Program
Commonwealth Ombudsman: 06 April 2021. The report makes nine recommendations focusing on communication, remediation of debts, reviews of debts, and possible future activities. The report also makes seven additional comments where the issues raised no longer require action but provide lessons for the future. Read more here.

Administration of parliamentary expenses by the Independent Parliamentary Expenses Authority
ANAO No 33: 29 March 2021. The objective of this audit was to assess the efficiency and effectiveness of the Independent Parliamentary Expenses Authority’s administration of parliamentary expenses. Learn more here.

What’s really at stake with vaccine passports
Elizabeth Renieris, Centre for International Governance Innovation: 05 April 2021. In this article, the author suggests that rather than thinking about vaccine passports as temporary and isolated public health-related measures, we should view them as just one example of how the pandemic is accelerating the rollout of digital identity infrastructure across the world. Click here to read the article.

Criminal justice responses to child sexual abuse material offending: A systematic review and evidence and gap map
Australian Institute of Criminology: 08 April 2021. This report provides the world’s first systematic review of criminal justice responses to child sexual abuse material offending. Read the report here.


Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338
PRIVATE INTERNATIONAL LAW – application for permanent stay of proceedings alleging contraventions of Competition and Consumer Act 2010 (Cth) (‘CCA’) Pt IV, Australian Consumer Law (‘ACL’) s 21 – where exclusive jurisdiction clause requires litigation relating to app developer agreement to occur in Northern District of California – where First Applicant has commenced proceedings against First Respondent in Northern District of California alleging contraventions of United States and Californian competition law – whether Australian proceedings ‘relate to’ agreement.
PRIVATE INTERNATIONAL LAW – discretionary non-exercise of jurisdiction – whether ‘strong reasons’ adduced against grant of stay, considering Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418 – whether CCA Pt IV, ACL s 21 mandatory laws of the forum – where parties agree courts in Northern District of California have jurisdiction to hear claims under CCA and ACL – whether court in Northern District of California would decline to exercise jurisdiction on discretionary grounds – whether Akai places onus on party arguing for stay to prove case will be heard by foreign court.

Matson and Attorney-General's Department (Freedom of information) [2021] AATA 788
PRACTICE AND PROCEDURE – application for a confidentiality order – application for release of documents from implied undertaking – application for adjournment of interlocutory proceedings – where documents are exempt from production under s 33 of the Freedom of Information Act 1982 – where Tribunal cannot disclose material which may ultimately be found to be an exempt document – where refusal to make confidentiality order would obviate the purpose of substantive application – confidentiality order granted – where release from implied undertaking would have no utility – release from implied undertaking refused – application for adjournment refused.
Administrative Appeals Tribunal Act 1975; Freedom of Information Act 1982.

Duck v Airservices Australia (No 3) [2021] FCA 304
STATUTORY INTERPRETATION – application for costs against non-party funder in industrial class action – whether power to order costs against non-party – whether in the exercise of discretion costs orders should be made against funder – where the Court cannot make an ordinary costs order against a party under s 43 of the Federal Court Act 1976 (Cth) because of s 570 of the Fair Work Act 2009 (Cth) – held: s 570 does not prevent the Court from making a non-party costs order as provision only applies to a party to proceedings.

Shanton v Department of Planning, Industry and Environment [2021] NSWCATAD 89
ADMINISTRATIVE LAW – access to government information – decision that information not held – adequacy of searches conducted by agency.

Nicholson v Sydney Children’s Hospital Network [2021] NSWCATAD 87
GOVERNMENT INFORMATION – Government Information (Public Access) Act 2009 (NSW) – access – reasonable search – onus.
Administrative Decisions Review Act 1997; Government Information (Public Access) Act 2009.

Ford v Benness [2021] NSWSC 319
EVIDENCE – cross examination about evidence which accorded with statement previously made in Senate inquiry and sent to employer – whether evidence prohibited by s 16(3) Parliamentary Privileges Act 1987 (Cth) – purpose of questions asked – purpose not prohibited – s 128 Evidence Act 1995 (NSW) – whether evidence tended to prove an offence committed – certificate issued.

Secretary, Department of Communities and Justice v Workers Compensation Commission & Ors [2021] NSWSC 310
ADMINISTRATIVE LAW – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – medical assessment – medical dispute – degree of permanent impairment as a result of an injury – review of decision of Appeal Panel – whether Appeal Panel failed to respond to a substantial and clearly articulated argument.

Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306
ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where relief sought includes an order in the nature of certiorari – where appeal panel found demonstrable error in decision-maker’s approach – where demonstrable error included applying the wrong test – where appeal panel proceeded to its own assessment – whether appeal panel erred in identifying error in decision-maker’s application of the wrong test – whether appeal panel itself applied the wrong test.
STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where the primary legislation provides for a deduction for any proportion of an impairment that is due to a previous injury or pre-existing condition or abnormality – where the primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of the guidelines would require a nil deduction for a pre-existing but asymptomatic psychiatric injury or condition – whether the guidelines are inconsistent with the primary legislation – whether the guidelines are beyond power.
WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant has suffered previous psychiatric injury – where condition related to previous psychiatric injury was asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made.

EMF v Cessnock City Council [2021] NSWCATAD 83
ADMINISTRATIVE LAW – freedom of information – personal information.

Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79
ADMINISTRATIVE LAW – access to government information – secrecy provisions – whether disclosure could reasonably be expected to constitute a contravention any other Act – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure.
Government Information (Public Access) Act 2009; Administrative Decisions Review Act 1997.



Regulatory Powers (Standardisation Reform) Act 2021
31/03/2021 – Act No. 32 of 2021 as made. 

Public Governance, Performance and Accountability (Financial Reporting) Amendment (2021 Measures No. 1) Rules 2021
08/04/2021 – this instrument amends the Public Governance, Performance and Accountability (Financial Reporting) Rule 2015 to provide an inclusion of a reference to Division 4 of Part 2-3 of the PGPA Rule, which came into effect during May 2020 to address different scenarios that may arise following machinery of government changes, requirements to ensure consistency across Commonwealth.

Taxation Administration Amendment (Updating the List of Exchange of Information Countries) Regulations 2021
01/04/2021 – this instrument amends the subsection 34(2) of the Taxation Administration Regulations 2017 to add nine jurisdictions and remove one jurisdiction from the list of foreign countries and foreign territories which are information exchange countries. 

Telecommunications (Interception and Access) (Communications Access Co-ordinator) Amendment Instrument 2021 (No. 1)
31/03/2021 – this instrument amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2019 to reflect changes due to departmental restructuring and a concurrent structural change. 

High Court of Australia (Building and Precincts – Regulating the Conduct of Persons) Directions 2021
31/03/2021 – this instrument updates the directions made in 2010 by the Chief Executive and Principal Registrar pursuant to subsection 19(2) of the High Court of Australia Act 1979. Directions in addition to powers contained in Court Security Act 2013 (Cth) and Court Security Regulation 2013 (Cth).

Commonwealth Registers Rules 2021
30/03/2021 – these rules prescribe additional functions for the registrars to enable the registrars to carry out various preparatory activities necessary for the transfer of registry functions from the Australian Securities and Investments Commission to the Commonwealth Registrars.


Proclamations commencing Acts
Government Sector Finance Act 2018 No 55 (2021-151) – published LW 1 April 2021

Regulations and other miscellaneous instruments
Government Sector Finance Amendment (Delegations) Regulation 2021 (2021-159) – published LW 1 April 2021
Government Sector Finance Amendment (Prescribed Reporting Exemption Criteria) Regulation 2021 (2021-160) – published LW 1 April 2021
Local Government (General) Amendment (Exemption) Regulation 2021 (2021-150) – published LW 31 March 2021
Public Health Amendment (COVID-19 Mandatory Face Coverings) Regulation (No 2) 2021 (2021-164) – published LW 31 March 2021
Public Holidays Amendment (Kempsey Local Government Area) Order 2021 (2021-170) – published LW 6 April 2021
State Debt Recovery Act 2018 – Referable Debt Order (2021-172) – published LW 9 April 2021

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:

Clare Giugni

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