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NSW Government Bulletin

14 October 2020

#Government, #Data & Privacy

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NSW Government Bulletin

Survey results provide a strong endorsement for data-driven services being provided by NSW Government

On 29 September 2020, the NSW Information Commissioner released the results of the Information and Privacy Commission (IPC) Community Attitudes Survey 2020 on data sharing, information access and agency assistance. You can read the full results here.

The results provide a strong endorsement for data-driven services being provided by the government.

There was significant support for de-identified information being used to inform planning and delivery of services provided by government agencies.

Similarly, the results support accountability by government, with strong support for publicly reporting on the information they maintain.

The results also showed strong support for public reporting on the use of machine learning/artificial intelligence during decision-making.

The survey also showed strong support for the right to access government information and for there to be accountable and transparent decision making.

All of this leads to the implication that there is a need to safeguard the legislated commitment to open government and the fundamental right of access to information, and that in a machine learning world this is future-proofed.

Author: Lyn Nicholson

In the media

International Convention on the Rights of Older Persons
The Law Council has recently adopted an in-principle position in support of the development of an international Convention on the Rights of Older Persons (International Convention). It considers the International Convention to have the potential to play an important role in improving the lives of older people globally, and in turn to inform Australia’s own domestic legal and policy frameworks (09 October 2020).  More...

Supporting the justice system during the COVID-19 pandemic
As part of Australia’s Economic Recovery Plan, the Morrison Government is providing additional support for Australia’s legal system to help those affected by the COVID-19 pandemic and to support those using the courts to resolve their matters as quickly and efficiently as possible (06 October 2020).  More...

Law reforms will encourage more victims sexual or family violence seek help
President of the Law Society of NSW, Richard Harvey, said the Law Society welcomed proposed changes to the offence of concealing a serious indictable offence under section 316 of the Crimes Act 1900. The amendment to the Act, which has been introduced into NSW Parliament, provides an exemption in adult cases of sexual or family violence offences where the individual does not want the matter reported to police (08 October 2020).  More...

The effect of moving offences from the District Court to the Local Court on court delay and sentencing
A legislative change allowing a selection of break and enter offences to be heard in the Local Court has delivered a reduction in court delay, a reduction in District Court workload and a reduction in imprisonment according to a new evaluation released by the NSW Bureau of Crime Statistics and Research (BOCSAR) (01 October 2020).  More...

Evaluating the first tranche of the Table Offences Reform
Crime and Justice Bulletin No. 231, Clare Ringland: October 2020
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, and decreased the likelihood of a custodial penalty being imposed (01 October 2020).  More...

Information Commissioner releases Community Attitudes survey results - Right to Know Week NSW 2020
The results of the IPC Community Attitudes 2020 survey provide a strong endorsement for data driven services with 72 per cent of respondents agreeing that de-identified information should be used to inform planning and delivery of services provided by government agencies (29 September 2020).  More...

Information watchdogs mark Access Day
The Australian Information Commissioner joined Information Access Commissioners and Ombudsmen from across Australia and New Zealand to sign a public statement marking Monday of this week as International Access to Information Day (28 September). They said open, transparent and accountable Governments that proactively release information to the community remained fundamental to a democratic society (28 September 2020).  More...

In practice and courts

COVID-19: Information for attending court - 9 October 2020
The NSW Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments.

Commercial Law Section - Updated notes on COVID-19 related developments in commercial law and practice
The NSW Association's Commercial Law Section has provided an updated version of its notes on COVID-19 related developments in commercial law and practice. The updated notes are available here (09 October 2020).

NSW IPC: International Access to Information Day and Right to Know Week NSW 2020
The International Day for Universal Access to Information as recognised by the United Nations, also known as International Access to Information Day in Australia, is celebrated 28 September 2020.
The IPC will release the results of the IPC’s Community Attitudes Study 2020 on Data Sharing and Information Access together with guidance to preserve the right to know in the digital age, and a citizen and agency Fact Sheet on Automated decision-making, digital government and preserving information access rights to ensure the Right to Know is future proof.

NSW Land and Environment court: Notices of motion before the Registrar
6 October 2020 - The Court's use of of Online Court is expanding to include the adjudication of Notices of Motion that are listed for return before the Registrar. Parties can request to have a Notice of Motion listed for adjudication using Online Court or other means (by Teams or in person) if considered appropriate and in accordance with the Court's COVID-19 Pandemic Arrangements Policy.

Amendment to the Uniform Civil Procedure Rules - amendment to Rules 3.10, 36.12, 50.14, and 51.27
The Uniform Rules Committee has approved Amendment No 94 to the Uniform Civil Procedure Rules. Amendments were made to the following rules to make provision with respect to the certification of reasons for judgment and the use of certified reasons in proceedings:
3.10: Request for a certified copy of a judgment or order; 36.12: Registrar to furnish copies of judgments and other documents; 50.14: Reasons for decision, transcript and other parts of the record of the court below; and 51.27: Contents of Red Book.
The amendment was published on the NSW Legislation Website 0n 09 October 2020 and is available here.

Extension of charge certification period
06/10/2020 - Practice and procedure
In response to a request from the Office of the Director of Public Prosecutions, the chief magistrate, Judge Graeme Henson AM, has extended the charge certification period from six to eight weeks, commencing 16 November 2020 until the end of the 2020 Law Term.

Reminder: 2020 Professional Standards Scheme commences
The fourth New South Wales Bar Association Professional Standards Scheme will remain in effect until 30 June 2025. You can learn more about the scheme here.

JUDCOM: Decisions reserved
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. The list is updated weekly. View the latest publication here.

Resumption of defended hearings in the Local Court of NSW – information for solicitors
There are two cohorts of those matters: Matters that were listed for hearing from 23 March 2020 to 4 May 2020 and those listed for 4  May – 31 July 2020 (as per paragraph 12 of Memorandum 10). The Court is endeavouring to ensure that as far as possible these   defended hearings proceed as defended hearings and are not the subject of pleas of guilty on the day of hearing or of adjournments or delay.  More...

Published – articles, papers, reports

Democracy under lockdown: The impact of COVID-19 on the global struggle for freedom
Sarah Repucci, Amy Slipowitz Freedom House: 02 October 2020
The COVID-19 pandemic has fuelled a crisis for democracy around the world. Based on a survey of 398 journalists, civil society workers, activists, and other experts, as well as research on 192 countries by Freedom House’s global network of analysts, this report provides an in-depth analysis.  More...

Equality before the Law Bench Book
JUDCOM: 28 September 2020
Section 7 – Women – This chapter has been rewritten, with updated cases and legislation, new and updated statistics and new sections on socio-economic factors and gender disadvantage, sexual harassment, intersectional discrimination and violence against women.  More...

Sentencing Bench Book
JUDCOM: 30 September 2020
Sentencing guidelines has been updated to include reference to Moodie v R [2020] NSWCCA 160
Sentencing Commonwealth offenders has been revised and updated to reflect recent amendments.  More...


Chen v Commissioner NSW Police Force [2020] NSWCATAD 245
Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW)
HUMAN RIGHTS – equal opportunity – whether leave required for complaint to proceed – principles applying to grant of leave.

Lawrence v State of New South Wales [2020] NSWCA 248
CONSTITUTIONAL LAW – Commonwealth Constitution – Chapter III – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the Act is constitutionally invalid – involuntary detention of a citizen by the State – preventative detention orders – whether the Act directs the Supreme Court as to the manner of the exercise of its jurisdiction – judicial discretion – whether the Act creates procedural unfairness – whether the Act is inconsistent with the institutional integrity of the Supreme Court as a repository of federal jurisdiction STATUTORY INTERPRETATION – departure from literal meaning - Terrorism (High Risk Offenders) Act 2017 (NSW) s 39(4) – meaning when read in context – meaning having regard to the purpose of the Act STATUTORY INTERPRETATION – legislative purpose – Terrorism (High Risk Offenders) Act 2017 (NSW) s 10(1)(c)(ii) – necessary connection between the association or affiliation and the advocacy of terrorist acts or violent extremism.

Choi v Legal Aid Commission of NSW [2020] NSWCATAD 242
ADMINISTRATIVE LAW – Access to information – application for Tribunal to refuse to deal with review application – application for summary dismissal of review application – Tribunal refused to deal with and dismissed review application.

JE v Secretary, Department of Communities and Justice (No 2) [2020] NSWCA 243
ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – no error made out. PRACTICE – representation of children and young persons in judicial review proceedings – common interest with Secretary – nature of appropriate representation in such cases
LAW - State Constitution – extra-territorial operation of legislation – power to provide for - drafting techniques – desirability of providing explicit legislative guidance as to intended territorial reach of laws STATUTORY INTERPRETATION – legal presumptions – presumption of territoriality – Interpretation Act 1987 (NSW) s 12 – applicants were women of Yazidi ethnicity – plaintiffs claimed they were victims of acts of violence perpetrated upon them in Northern Iraq and Syria by a man who had previously lived in New South Wales – Commissioner and NCAT dismissed application for support because acts of violence did not occur in New South Wales – plaintiffs submitted sufficient connection with New South Wales – nature of territorial nexus of Victims Rights and Support Act 2013 (NSW) with New South Wales – consideration of history and construction of s 12 Interpretation Act, extraterritorial legislative capacity, counterparts and precursors to victims compensation schemes – displacement of legal presumptions - appeal dismissed.

Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200
ADMINISTRATIVE LAW – administrative review – hotel licence – refusal of application to vary an ongoing extended trading authorisation – whether decision administratively reviewable STATUTORY INTERPRETATION – meaning of cl 7(b) of the Gaming and Liquor Administration Regulation 2016 – whether application to vary an extended trading authorisation is an “application for an ongoing extended trading authorisation in relation to a licence … that would result in trading after midnight” PRECEDENT – Supreme Court obiter dicta – meaning of “seriously considered” dicta.

Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236
ADMINISTRATIVE LAW – judicial review of decisions of Industrial Relations Commission relating to removal of officer from NSW Police Force – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered – where decision was not affected by jurisdictional error. INDUSTRIAL RELATIONS – Industrial Relations Commission – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust” – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW). STATUTORY INTERPRETATION – construction of s 181F(2) of the Police Act 1990 (NSW) – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust”.

Purcell v The Health Secretary on behalf of NSW Ambulance [2020] NSWIRComm 1065
PUBLIC SECTOR DISCIPLINARY APPEAL – three allegations of misconduct against Duty Operations Manager – one allegation substantiated by employer – temporary reduction in classification for 12 months imposed – allegation not proven to requisite standard of proof on the evidence before the Commission – appeal allowed.


Regulations and other miscellaneous instruments
Government Sector Finance Amendment (Independent Planning Commission) Regulation 2020 (2020-600) — published LW 9 October 2020
Uniform Civil Procedure (Amendment No 94) Rule 2020 (2020-604) — published LW 9 October 2020

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.

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