Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

NSW Government Bulletin

15 September 2020

#Government, #Data & Privacy

Published by:

NSW Government Bulletin

COVID Safe or COVID surveilled?

Who knows where you are? Service NSW and any NSW government agency that might need to know for contact tracing purposes.

In the ongoing balancing act between privacy and individual rights and public health, NSW appears to be leading the way.

As we reach the 26th week since lockdowns began in NSW, Service NSW is making it easier for small businesses to operate in a COVID-safe environment. Each NSW business that registers its COVID-19 Safety Plan with Service NSW will receive a unique QR code that can be used together with the Service NSW app to allow customers a contactless check-in. 

With the Service NSW app, NSW residents can hold their digital driver’s licence on their phone for use by licensed venues, such as pubs and clubs, to verify identity and manage underage admission. 

When the app launched in 2019, nearly 10 per cent of NSW drivers downloaded it in the first week and it has continued to have uptake.

With the advent of a COVID-safe environment and a need for small businesses to record visitors for contact tracing purposes, the app has recently been upgraded so that individuals can use their Service NSW app to check in to small businesses using their unique QR code, allowing accurate record-keeping and quick contact tracing (see here for more information). The enhancement also removes the privacy risk from small businesses to Service NSW.

For those with residual privacy concerns, the NSW government announced in June this year that it has centralised its digital spending, committing $1.6 billion to a cross government platform to link services and improve cyber resilience.

Update on NSW driver’s licences data breach

Following our last bulletin here where we reported 186,000 driver’s licences had been breached and that Transport for NSW indicated its database was not the source of the breach, we noted that businesses need to be careful with whom they contract and to whom they outsource their data handling processes. 

Transport for NSW is not subject to the Commonwealth Privacy Act, but the Commonwealth Privacy Commissioner has issued a statement here on the breach, reminding businesses that they need to act quickly to contain data breaches and notify anyone who is at risk of serious harm as quickly as possible. The statement noted that in 2019-20, the Office of the Australian Information Commissioner received 1,050 notifications under the mandatory notifiable data breaches scheme.

Author: Lyn Nicholson

In the media

Reviews of Judicial Impartiality and the Legislative Framework for corporations and financial services Regulation
The Morrison Government has referred two matters to the Australian Law Reform Commission (ALRC) for review. First, on the issue of judicial impartiality, and the second, a review of the legislative framework for corporations and financial services regulation (11 September 2020).  More...

Defence urges Internet of Things makers to prioritise security
Government releases 'encouraged but optional' IoT Code of Practice for manufacturers and buyers of Internet of Things (IoT) devices. The Department of Home Affairs’ newly released Voluntary Code of Practice is targeted at industry – but “everyone”, the department notes, “has a role to play in improving cyber security in the Internet of Things” (10 September 2020).  More...

Victorian government seeking legal advice overdraft foreign relations laws
The Andrews government is seeking legal advice on proposed new federal laws which could tear up its controversial Belt and Road agreement with China, potentially setting up another fight over foreign policy with the Commonwealth (10 September 2020).  More...

Why unis are worried about a federal power to cancel their foreign ‘arrangements’
A proposed law would give the federal government power to cancel arrangements between foreign governments and Australian states, territories, local councils and public universities. It’s fairly clear the Commonwealth has the constitutional power to do this. Universities Australia has expressed “grave concerns” about the potential impact on “tens of thousands of research projects” (10 September 2020).  More...

Treasury audit into staffing arrangements in Treasurer’s Office
The NSW Treasury completed its audit into the staffing arrangements of the NSW Treasurer’s Officeon25August 2020, and a further supplementary report on 7 September 2020. The Treasurer has now considered the audit, and made it publicly available, along with responding to recommendations.  More...

QR codes making life easier for cafe owners and customers, but what about privacy?
QR codes are not a new concept, but paired with your phone they could help venues comply with their COVID-safe industry plans by assisting in the collection of your personal information (10 September 2020).  More...

ASIO’s extraordinary detention powers extended until March 2021
The LCA says COVID-19 should not be used an excuse to curtail Australia’s personal freedoms that are unrelated to the pandemic. Law Council President, Pauline Wright, noted the highly extraordinary nature of these powers, which have no equivalent in the laws of Australia’s closest intelligence partners, including the United States, United Kingdom, Canada and New Zealand (04 September 2020).  More...

Statement on reported data breach involving NSW driver licences
The Office of the Australian Information Commissioner (OAIC) is making inquiries with relevant parties into reports of a data breach involving scanned NSW driver licences (03 September 2020).  More...

Statement by NSW Privacy Commissioner about reports of a data breach involving scanned copies of NSW drivers’ licences
The NSW Privacy Commissioner is aware of media reports about a data breach involving scanned copies of NSW drivers’ licences. Cyber Security NSW has investigated the breach and indicated that the data referred to in media coverage has been exposed via a commercial entity and was not provided by, nor sourced from, NSW Government agencies (03 September 2020).  More...

NSW Recorded Crime Statistics quarterly update June 2020
Crime across most of NSW has remained stable or fallen in the two years to June 2020. The only major exception to this is sexual assault which rose 9.4% year-on-year to June 2020. A similar upward trend was reported in the previous quarterly report (02 September 2020).  More...

New Audit Manual one for the books
The Australian National Audit Office (ANAO) has released its Audit Manual setting out policies and providing guidance on the application of audits and other assurance work performed by the Auditor-General (31 August 2020).  More...

Human Rights concern at non-human AI
The Australian Human Rights Commission (AHRC) has discovered that 46 six per cent of people in Australia were not aware that the Government makes important decisions about them using artificial intelligence (AI) (31 August 2020).  More...

In practice and courts

National Mediators Board – review of the NMAS
The Mediator Standards Board (MSB) has announced it will work with Melbourne-based Resolution Resources (RR) to review the National Mediator Accreditation System (NMAS) governing Australia’s professional mediators (04 September 2020).  More... 

High Court of Australia
High Court of Australia Bulletin [2020] HCAB 06 (14 August 2020).  More...

Consultation on interest payable on fidelity fund claims
The Legal Services Council has issued a consultation paper proposing a new formula to calculate the interest payable on fidelity fund claims made under the Legal Profession Uniform Law. The interest rate is fixed at 5 per cent by s 243(2) of the Uniform Law in the absence of specific provision in the Uniform General Rules.  More...

Legal Services Council: Regulation of litigation funding schemes
The Legal Services Council (LSC) has amended the Legal Profession Uniform General Rules 2015 with effect from 22 August 2020 so the prohibitions in s 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.  More...

An investigation into the effectiveness of ATO communications of taxpayers' rights to review, investigate and appeal
The Inspector-General of Taxation and Taxation Ombudsman (IGTO) is investigating how effectively the Australian Taxation Office communicates appropriate information on taxpayers’ rights to review, complain and appeal decisions made and actions taken by the ATO. The closing date for submissions is 30 September 2020.  More...

New Law Council of Australia Guidelines – Equitable Briefing Policy
The Law Council’s portal for the annual reporting by Equitable Briefing Policy adoptees (Policy adoptees) will soon open on 1 July 2020. To assist in this process, the Law Council has updated its Equitable Briefing Policy Reporting Template and Guidelines in response to feedback from previous reporting periods. Policy adoptees have until 30 September 2020 to provide their annual report and will be updated once the portal is opened on 1 July 2020.

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. 23/2020, 7 September 2020.  More...

Family Court and Federal Circuit Court of Australia – current ongoing projects – September 2020

Priority Property Pool 500
The Federal Circuit Court of Australia has introduced a new process to manage family law property disputes for cases where the value of the net property pool is under $500,000. The new process, known as the Priority Property Pool 500 (PPP500), started on 1 March 2020 and will operate for two years as a pilot program in Adelaide, Brisbane, Melbourne and Parramatta.   More...

The Lighthouse Project
The Lighthouse Project is a ground-breaking and innovative initiative in the way in which the Courts will screen for risk and focus on public health and improved outcomes for families involved in the family law system. A pilot for this project will commence in Adelaide, Brisbane and Parramatta and the Courts are looking to secure additional government funding to expand nationally.

Family Court and FCC welcome risk-screening Bill
The Family Court of Australia and Federal Circuit Court of Australia have declared their support for this week’s introduction of the Family Law Amendment (Risk Screening Protections) Bill 2020. While it is very uncommon for the courts to take a public stance on proposed legislation, it is understandable as the Bill establishes a framework to facilitate the courts’ new Lighthouse Project family violence and risk-screening initiative. It will operate as a pilot program in Adelaide, Brisbane and Parramatta Family Court and FCC welcome risk-screening Bill.  More...

LCA Submissions

Extension to temporary insolvency emergency measures
11 September 2020— Business Law Section.  More...

2020 Inquiry into Legal Practitioners’ Scales of Costs
03 September 2020— Law Council.  More...

Response to IP Australia public consultation: ACIP Designs Bill
03 September 2020— Business Law Section.  More...

Input to ASBFEO Insurance Inquiry launched in July 2020
03 September 2020— Business Law Section.  More...

The repeal of section 144 of the Patents Act 1990 (Cth)
31 August 2020— Business Law Section.  More...

Draft news media bargaining code
28 August 2020— Law Council.  More...

Current APH Inquiries and Consultations

Legal and Constitutional Affairs Legislation Committee
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] 
Report by 20 November 2020.

Legal and Constitutional Affairs References Committee
On 23 March 2020 the committee's reporting date was extended to 9 September 2020.  More...

LCA Current Inquiries and Consultations as of 09 September

Exemption of delegated legislation from parliamentary oversight
The Senate Standing Committee for the Scrutiny of Delegated Legislation (the committee) is responsible for the non-partisan, technical scrutiny of delegated legislation in accordance with Senate standing order 23.  More...

Draft Propositions by Counsel Assisting
The Royal Commission into National Natural Disaster Arrangements has commenced the final stages of its inquiry. Following publication of Interim Observations on Monday 31 August 2020, a series of draft propositions is now available for public comment. More...

Insurance Inquiry
On 28 July 2020, the Australian Small Business and Family Enterprise Ombudsman launched an inquiry to investigate the practices of the insurance industry that impact small businesses and consider whether small business insurance products are fit for purpose..  More...

Inquiry into the human rights of women and girls in the Pacific
On Tuesday, 3 December 2019, the Minister for Foreign Affairs and Minister for Women, Senator the Hon Marise Payne, asked the Joint Standing Committee on Foreign Affairs, Defence and Trade - Human Rights Sub-Committee to inquire into the human rights of women and girls in the Pacific.  More...

Litigation funding and the regulation of the class action industry
On 13 May 2020, the House referred to the Parliamentary Joint Committee on Corporations and Financial Services an inquiry into Litigation funding and the regulation of the class action industry for report by 7 December 2020.  More...

News media bargaining code
Australian Competition & Consumer Commission released a draft version of the news media bargaining code.  More...

Review of AFP Powers
On 18 June 2020, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced an inquiry into AFP Powers.  More...

Review of ‘Declared Areas’ Provisions
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has commenced a statutory review into the ‘declared area’ provisions, listed in sections 119.2 and 119.3 of the Criminal Code Act 1995.  More...

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.  More...

An Investigation into the effectiveness of ATO communications of taxpayers' rights to complain, review and appeal
Death and Taxes – An Investigation into ATO Systems and Processes for dealing with Deceased Estates.  More...

Review into the Framework of Religious Exemptions in Anti-discrimination Legislation
There are a number of anti-discrimination laws in Australia at the federal, state and territory level. Many of these laws include some kind of exemption for religious institutions, to enable those institutions to give effect to beliefs and practices of the particular religion.  More...

Guidance for digital check-in providers collecting personal information for contact tracing
As a result of the COVID-19 pandemic, state and territory health authorities have required some businesses to collect personal information from their patrons as a condition of re-opening. Developers have moved quickly to help Australian businesses comply with these requirements and fill an urgent business need.  More...

Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Bill 2020
The Parliamentary Joint Committee on Intelligence and Security is calling for submissions on the Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Bill 2020. On 23 March 2020 the Senate extended the committee’s reporting date to 14 October 2020.  More...

NSW

COVID-19: Information for Attending Court – 11 September 2020
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments.

Protocol for the Bar Associations of Australia to raise any concern about Judicial conduct in Commonwealth courts
The President of the ABA has written to remind ABA members of the Protocols which the ABA entered into with the Heads of federal jurisdictions in August 2019 regarding raising of concerns about Judicial conduct in Commonwealth courts, and which were recently refreshed (07 September 2020).  More...

IPC NSW: Privacy Commissioner Statement on the Service NSW cyber incident
The Privacy Commissioner approved a Public Interest Direction on 5 August 2020 to enable a time limited data exchange process between Service NSW, Transport for NSW (TfNSW) and the NSW Registrar of Births, Deaths and Marriages (BDM). The Direction will expire on 31 January 2021 and requires Service NSW to appoint an independent auditor to assess compliance with the Direction, and report to the Privacy Commissioner on compliance with the Direction (07 September 2020).  More...

ICAC: Dealing with Corruption, Fraud and the ICAC: the role of public sector Audit and Risk
The NSW ICAC has produced a paper to help guide audit and risk committees on their role in dealing with corruption, fraud and the ICAC (10 September 2020).  More...

ICAC: Public inquiry into allegations concerning former MP Daryl Maguire
The NSW ICAC will hold a public inquiry starting Monday 21 September 2020 as part of an investigation it is conducting into allegations concerning the former NSW Member of Parliament for Wagga Wagga (01 September 2020).  More...

NCAT: Change to Appeal Panel callover days
From Monday 14 September 2020, the Appeal callover days will change from Tuesday and Thursday to Wednesday and Friday. NCAT will continue to notify parties in writing of the date and time of the callover. The appeal itself is not heard at the callover (11 September 2020).  More...

Reminder: 2020 Professional Standards Scheme commences
The fourth New South Wales Bar Association Professional Standards Scheme will remain in effect until 30 June 2025.  More...

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.  More...

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 the hearing or of adjournments or delay.  More...

Published – articles, papers, reports

Social media: Guidance for Australian Public Service Employees and Agencies
This guidance was aimed at helping APS employees, managers, and Agencies understand and assess the risks that employees’ online behaviour could pose to public confidence in Agencies and the APS, and strike a reasonable balance between employees’ rights as individuals and their obligations as Public Servants (10 September 2020).  More...

Corporate Criminal Responsibility
The Australian Law Reform Commission report, Corporate Criminal Responsibility, was tabled in Parliament on 31 August 2020. The ALRC has made 20 recommendations for reform. Download the Summary Report. Download the Final Report (31 September 2020). More...

Corporate Plan 2020-21 sets out OAIC strategic priorities
Ther Corporate Plan 2020-21 sets out strategic priorities and key activities (31 August 2020).  More...

Establishment and Use of ICT Related Procurement Panels and Arrangements
The objective of this audit was to assess the extent to which entities’ establishment and use of ICT related procurement panels and arrangements supported the achievement of value for money outcomes (31 August 2020).  More...

Bail and Commonwealth Child Sex Offences Guide
The bail amendments are effective on or after 23 June 2020. The legislation affects all Commonwealth child sex offences with the exclusion of s474.25C, with the provisions impacting on any person charged with the more serious (First Strike) offences, and impacting on persons with prior child sex convictions who are charged with the less serious (Second Strike) offences (10 September 2020).  More...

NSW Recorded Crime Statistics quarterly update June 2020
NSW Bureau of Crime Statistics and Research: Crime statistics (01 September 2020).  More...

Cases

DQU v University of New England [2020] NSWCATAD 226
ADMINISTRATIVE LAW – privacy – review of conduct of a public sector agency in collecting personal information from the applicants for the purpose of assessing whether a prospective overseas student will meet the Genuine Temporary Entrant (GTE) and financial requirements specified by the Australian Government for the issue of a student visa – whether the collection of this information for this purpose is a lawful purpose that is directly related to a function or activity of the University and the collection of that information is reasonably necessary for that purpose (s 8 of the Privacy and Personal Information Protection Act 1998) – whether the conduct of the public sector agency contravened the information protection principles in s 9, 10 and 11 of Privacy and Personal Information Protection Act 1998

Ruyters v Commissioner of Police [2020] NSWCATAD 223
ADMINISTRATIVE LAW – administrative review – Government Information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of s 60(3A) and (3B) factors – meaning of “general public interest” in s 60(3B) – nature of balancing task to be undertaken by decision-maker in determining whether dealing with an application would require an unreasonable and substantial diversion of the agency’s resources 

Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182
APPEALS – government information – access application – appeals from decision that government information be disclosed – public interest considerations – whether public interest considerations applied inconsistently – whether Tribunal misapplied s 13 of the Government Information (Public Access) Act 2009
PROCEDURE – standing of third party to bring an appeal – whether “party” in proceedings below –whether “intervenor” in proceedings below – meaning of “party” in s 80(1) of Civil and Administrative Tribunal Act 2013
PROCEDURE – parties on appeal – joinder – principles as to joinder of parties – application of s 44(1) of Civil and Administrative Tribunal Act 2013 – whether joinder necessary or proper – whether interests of applicant affected by orders made below – other factors considered – application for joinder granted
PROCEDURE – right to appear and be heard – whether third party has statutory entitlement to appear and be heard under s 104(3) of the Government Information (Public Access) Act 2009
STATUTORY CONSTRUCTION – whether s 104(3) applies to internal appeals
PROCEDURE – role of Information Commissioner under s 104(1) of Government Information (Public Access) Act 2009 – whether limited to principles of statutory construction, applicable law, policies and guidelines

Kastanias v Georges River Council [2020] NSWCATAD 213
ADMINISTRATIVE LAW – access to government information – confidential information – whether prejudice to the effective exercise of that agency's functions – whether prejudice to a deliberative process – whether prejudice to exercise of the agency's functions – breach of confidence – whether prejudice to conduct, effectiveness or integrity of any audit, test, investigation or review conducted – whether disclosure reveals personal information – whether disclosure contravenes an information protection principle – whether disclosure reveals false or unsubstantiated allegations – whether disclosure prejudices legitimate business, commercial, professional or financial interests – whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure 

Jamal v Commissioner for Fair Trading [2020] NSWCATOD 99
ADMINISTRATIVE LAW – Real Estate Licence – Property Stock and Business Agents Act – Fit and proper person – Applicant subject to good behaviour bond – Period of supervision suspended – Criminal convictions – Serious Criminal past – Nature of offences – whether full disclosure made

Legislation

NSW

Regulations and other miscellaneous instruments

Annual Holidays Amendment (COVID-19 Prescribed Period) Regulation 2020
(2020-534) — published LW 11 September 2020

Criminal Procedure Amendment (Legally Assisted Persons) Regulation 2020
(2020-535) — published LW 11 September 2020

Public Holidays Amendment (Lismore City Council and Grafton City) Order 2020
(2020-533) — published LW 9 September 2020

Road Transport Legislation Amendment (Registration Information Disclosure Agreement) Regulation 2020
(2020-541) — published LW 11 September 2020 - to clarify that Transport for NSW may enter into an agreement, with 1 or more toll operators, that provides for the release to the toll operator or toll operators of particular information with respect to a registrable vehicle and to make consequential amendments.

Bills assented to

Casino Control Amendment (Inquiries) Act 2020 No 20 — Assented to 07 September 2020

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:

Share this