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NSW Government Bulletin

17 February 2021

#Government

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NSW Government Bulletin

Holding Redlich Government lawyers CLE intensive 2021 kicks off next week

Holding Redlich's annual Government lawyers CLE intensive program returns next week as a virtual event from 22 February to 5 March 2021. 

This year, our theme is "Times of crisis, times of change" to reflect on a tumultuous year for policymakers and on the delivery of government services and the changing times in which public policy operates.

The two-week program consists of 17 online sessions where our practice group experts will deep dive into the overall theme and touch on key topics relevant to government lawyers in NSW and other jurisdictions. In particular, our speakers will look at:

  • the significant changes in NSW building industry regulation and their implications for government agencies
  • key recommendations on handling privacy incidents 
  • recent trends and the impact of 2020 on property transactions in NSW
  • the new Commonwealth Data Availability and Transparency Bill 
  • the impact of COVID-19 on managing workplace complaints 
  • planning reforms arising out of COVID-19 and initiatives aimed at cushioning the impact on developments in NSW.

To see the full program and to register, please click here.

In the media

Australian Senate endorses News Media Bargaining Code
Latest approval takes bargaining code between news media companies and Google and Facebook a step closer to law. Australia’s controversial and internationally debated News Media Bargaining Code is a step closer to being enacted into legislation following the Senate’s decision to pass the Media and Digital Platforms Mandatory Bargaining Code Bill 2020. View the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 (12 February 2021).  More...

Government moving in the right direction on Federal Judicial Commission
The Law Council of Australia has long advocated for the establishment of a standalone Federal Judicial Commission and considers the government is moving in the right direction by seeking independent legal advice on its establishment, to ensure the independence of the judiciary and the separation of powers (12 February 2021).  More...

NSW Government starts process to remove high-risk cladding
The NSW Government has announced further details of the project to facilitate the removal of high-risk combustible cladding from residential apartment buildings across the state (10 February 2021).  More...

Ombudsman makes call on telecommunications
The Commonwealth Ombudsman has called for greater overall awareness from some public service agencies relating to their obligations when intercepting communications under the Telecommunications (Interception and Access) Act and other compliance controls (08 February 2021).  More...

Australia’s UPR (third cycle)
Australia’s human rights record was considered by members of the United Nations during its third Universal Periodic Review (UPR) on 20 January 2021. The Law Council is grateful for the advice of its expert advisory committees, sections and constituent bodies in informing this submission. At the recent review, 122 countries made close to 250 recommendations for Australia (05 February 2021).  More...

Terrorism-related charges are uncommon in NSW Criminal Courts
Terrorism-related charges are relatively uncommon in NSW Criminal Courts according to a report released by the NSW BOCSAR. The majority of these offences relate to legislation that has enabled proactive policing and prevention of terrorism-related activities, with most terrorism offences occuring after the Federal Government raised the National Terrorism Threat Advisory System threat level from “Possible” to “Probable” in 2014 (04 February 2021).  More...

Appointment of Inspector-General of Intelligence and Security
Attorney-General, Christian Porter announced the substantive appointment of the Hon Dr Christopher Jessup QC as the Inspector General of Intelligence and Security (04 February 2021).  More...

Scales on Local Court bench approach balance
The NSW Local Court is on the cusp of achieving gender balance following the appointment of five new magistrates (04 February 2021).  More...

Australian-first OMCG exit and prevention program launched
Minister for Police and Corrective Services and Minister for Fire and Emergency Services, the Honourable Mark Ryan MP, joined Commissioner Katarina Carroll to officially launch Australia’s first exit program for former outlaw motorcycle gang members wanting a lasting way out of gang life (04 February 2021).  More...

Digital photo card trial goes live in Penrith
Thousands of NSW photo card holders who live in the Penrith area can now download a digital version of their identification through the Service NSW app (02 February 2021).  More...

Consumers let down as Government fails to action Banking RC two years after findings released
Super fund members, bank customers and insurance policy holders have all been let down by the Federal Government’s failure to implement the recommendations of the Financial Services Royal Commission at the second anniversary of the release of Commissioner Hayne’s findings, says the Australian Lawyers Alliance (01 February 2021).  More...

In practice and courts

HCA Practice Directions
Opening of the Registry
High Court of Australia, 1 of 2021
This Practice Direction takes effect on 8 February 2021. Practice Direction No 2 of 2020 is revoked. The office hours of the Registry shall be from 9.00 am to 1.00 pm and from 2.00 pm to 5.00 pm.

Federal Court of Australia – updates
The February Full Court and Appellate sitting period commenced on Monday, 1 February 2021.
Streaming pilot
The Court is preparing to roll out a streaming platform, to be piloted in some upcoming Full Court matters. The platform will enable the members of the public to live stream a hearing via a fixed link accessible on the Court list and the Court's website, avoiding the need to obtain access to a specific Teams link and reducing the complexity of admitting and managing numerous parties in a Teams meeting.

CDPP publications
Timely prosecutions [NLD]
08 February 2021

ACMA consultations
Compliance priorities 2021-22 – consultation 02/2021
We’re developing our compliance priorities for our 2021-22 work program. Submissions close on 05 March 2021. Read more here.

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) and is available for public access.
08 February 2021 – FOI request – a copy of NobleOak’s Notifiable Data Breach Form. Read more here.

Current consultations

Environment and Communications References Committee
Press Freedom on 9 February 2021, the reporting date was extended from 17 February 2021 to 4 March 2021.

Finance and Public Administration Legislation Committee
Data Availability and Transparency Bill 2020 [Provisions] and Data Availability and Transparency (Consequential Amendments) Bill 2020 [Provisions]
Operation and management of the Department of Parliamentary Services
On 13 November 2020, the reporting date was extended to 11 March 2021.
Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2020
Senate referred the Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2020 for inquiry and report by 16 March 2021.

Legal and Constitutional Affairs Legislation Committee
Regulatory Powers (Standardisation Reform) Bill 2020 [Provisions]
Judges’ Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020

Legal and Constitutional Affairs References Committee
Nationhood, national identity and democracy

Select Committee on Foreign Interference through Social Media
Foreign Interference through Social Media

Standing Committee for the Scrutiny of Delegated Legislation
Exemption of delegated legislation from parliamentary oversight

Finance and Public Administration References Committee
The current capability of the Australian Public Service (APS)

LCA submissions
05 February 2021 – Law Council
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 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. 3/2021, 8 February 2021

Commonwealth Integrity Commission: Consultation draft
The Australian Government has released an exposure draft of legislation to establish the new Commonwealth Integrity Commission (CIC) and make other consequences legislative amendments. A fact sheet about the key features of the CIC has also been released. The consultation page includes links to the draft legislation and further information about other issues under consideration.

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 will start on 1 April 2021.  More...

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 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. See the Legal Services Council website.

NSW

COVID-19: Information for attending court – Friday 12 February 2021
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has been updated in terms of recent developments, and includes the Supreme Court of NSW.

The IPC is seeking feedback on its resources
The IPC of NSW is seeking feedback from people who have used the resources on its website. Please let us know about your experience here. Please note the survey is for feedback on publications only and any formal enquiry/complaint should be directed to the IPC using the contact details on their website. See the IPC Privacy Statement here.

NSW Law Society: Applications open for the Access to Justice Innovation Fund
The $1 million fund from the State Government supports innovative ideas to improve or enhance access to justice in NSW. Grants of between $50,000 and $250,000 are available for low cost, high impact projects that make a difference for those who need it most. Find out more here.

COVID NSW
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has been updated in terms of recent developments, and includes a new practice direction.

Strata statutory review: Consultation now open
The Government has commenced a wide-ranging review of the laws affecting strata schemes under the Strata Schemes Management Act 2015 and the Strata Schemes Development Act 2015. Public consultation is now open and will close on 7 March 2021. Please visit the Have your say – strata statutory review website to access the Strata Discussion Paper and for surveys on management and development issues.

Extension of strata and community lands COVID-19 regulations
Regulations were published on 12 November 2020 which extend the COVID-19 measures as previously provided for strata and community lands to 13 May 2021. The measures include alternative means of holding meetings and execution of documents by an owners corporation or community association. See Community Land Management Amendment (COVID-19) Regulation (No 2) 2020 and Strata Schemes Management Amendment (COVID-19) Regulation (No 2) 2020.

DCJ NSW: Review of the Advocate for Children and Young People Act
The review will determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing these objectives. The discussion paper is available here. Submissions close on 12 March 2021. Read more here.

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.

Published – articles, papers, reports

Commonwealth Ombudsman Reports
05/02/2021: A report on the Commonwealth Ombudsman’s monitoring of agency access to stored communications and telecommunications data under Chapters 3 and 4 of the Telecommunications (Interception and Access) Act 1979
For the period 1 July 2018 to 30 June 2019

The digital lives of Aussie teens
eSafety Commissioner: 11 February 2021
New research has found that three in 10 teenagers have been contacted online by strangers, and spending around two hours a day online and on average used four different social media services. There is also a good chance they have had a negative experience online. Read more here.

2020 sector snapshot: Health
Cyber Security Centre: February 2021
This report provides a high-level overview of the cyber security environment within the health sector over a twelve month period (1 January to 31 December 2020). Read more here.

Terrorism offending in New South Wales
BOSCAR: Bureau Brief No. BB150: February 2021
Keywords: terrorism, offenders, specialisation, criminogenic risk.
In 2002, Australia introduced new laws to directly criminalise terrorism offending. The aim of this brief is to describe terrorism offences finalised in NSW criminal courts since 2002, and to provide an overview of the characteristics and offending history of those convicted of terrorism offences. Read more here.

Cases

‘WP’ and Secretary to the Department of Home Affairs (Privacy) [2021] AICmr 2
Privacy – Privacy Act 1988 (Cth) – Information Privacy Principles – IPP 4 – data security failure – IPP 11 – unauthorised disclosure of personal information – breaches substantiated – compensation awarded – s 52(4)(a) – manner in which the amount of compensation payable to class members is to be calculated – s 52(5)(b) – process for determining any dispute regarding the entitlement of a class member to the payment.

Department of Home Affairs privacy determination
This matter is the first representative action where we have found compensation for non-economic loss payable to individuals affected by a data breach. It recognises that a loss of privacy or disclosure of personal information may impact individuals and depending on the circumstances, cause loss or damage.

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
 Appeal allowed. Administrative law – apprehended bias – relief – jurisdiction of inferior courts – where first respondent applied for additional mining leases and amendment to existing environmental authority ("applications") – where appellant and others lodged objections to applications – where first decision of Land Court of Queensland ("Land Court") recommended that both applications be rejected – where Supreme Court of Queensland rejected arguments by first respondent that recommendations made by Land Court affected by apprehended bias, but held recommendations involved errors of law and remitted certain matters to Land Court for reconsideration – where second decision of Land Court constituted by different Member recommended applications be approved subject to conditions – where amendment to environmental authority granted by delegate of second respondent – where Court of appeal allowed cross-appeal by first respondent and held that recommendations in Land Court's first decision affected by apprehended bias – whether open to Court of Appeal, after finding that recommendations in Land Court's first decision affected by apprehended bias, not to refer matters to which recommendations related back to Land Court for full reconsideration, and instead to make consequential orders limited to declaration that procedural fairness not observed – whether matters to which recommendations related should not be referred back to Land Court on basis of discretion to refuse relief.
Environmental Protection Act 1994 (Qld), Ch 5. Judicial Review Act 1991 (Qld), s 30. Land Court Act 2000 (Qld). Mineral Resources Act 1989 (Qld), Ch 6.

Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. [2021] FCAFC 3
ARBITRATION – international arbitration – applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) (‘Arbitration Act’).
PRIVATE INTERNATIONAL LAW – foreign state immunity – where foreign state respondent asserts sovereign immunity – interaction between s 9 of the Foreign States Immunities Act 1985 (Cth) (‘Immunities Act’) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) which is given the force of law by s 32 of the Arbitration Act – where s 9 of the Immunities Act provides that a foreign state is immune from the jurisdiction of the courts of Australia in a proceeding – where s 10 of the Immunities Act provides that a foreign state is not immune in a proceeding in which it has submitted to jurisdiction whether by agreement or otherwise – whether by Art 54(2) of the ICSID Convention the foreign state respondent has agreed to submit itself to the jurisdiction within the meaning of s 10 of the Immunities Act.
PUBLIC INTERNATIONAL LAW – foreign state immunity – interpretation of the ICSID Convention – whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award – meaning of recognition and enforcement in Art 54 and execution in Art 55 – where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in any Contracting State in relation to immunity from execution.
Foreign States Immunities Act 1985 (Cth) Pts II, IV; ss 3, 7, 9, 10 – International Arbitration Act 1974 (Cth) Pt IV; ss 32, 34, 35 – Judiciary Act 1903 (Cth) s 39B – Federal Court Rules 2011 (Cth) r 36.32 – Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Ashby v Commonwealth of Australia [2021] FCA 40
ADMINISTRATIVE LAW – application for review of decision to refuse application for an act of grace payment under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) – where act of grace payment sought for the purpose of satisfying legal fees incurred in litigation relating to alleged conduct by a member of the Parliament of Australia – where previous litigation discontinued before trial by the applicant due to purported financial pressure – where the Member of Parliament was granted an act of grace payment in relation to his legal fees – whether there was an error by the delegate of the Minister in failing to assess the claim in support of the act of grace application that the applicant was a whistle-blower, alternatively that this claim was not assessed to the requisite level of detail – whether the delegate’s finding that there was no basis for an argument that the previous act of grace payment to a litigant had an influence over the litigation was irrational – whether the delegate failed to have regard to relevant evidence that the proceeding was not highly politicised – whether there was any error in the delegation rendering the decision-making power of the delegate void – held: the delegate did not fail to assess the whistle-blower claims made by the applicant and was not required to give further or better consideration to these claims – the delegate’s finding that the act of grace payment made to the Member of Parliament did not influence the litigation was not irrational and was not outside of the exercise of their jurisdiction – there was no failure to deal with evidence relating to the claims that the proceeding was highly politicised – the applicant’s construction of the delegation power was not sensible or pragmatic and the conduct of the delegate in this case was clearly contemplated by the delegation’s authorising Act – application dismissed with costs.
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16)
Fair Work Act 2009 (Cth)
Financial Management and Accountability Act 1997 (Cth) s 33
Secretary of the Department of Finance (Cth), Public Governance, Performance and Accountability (Finance Secretary to Finance Officials) Delegation 2020 (No 1) (22 January 2020) sch 1A pt 11
Members of Parliament (Staff) Act 1984 (Cth)
Judiciary Act 1903 (Cth) s 39B
Public Governance, Performance and Accountability Act 2013 (Cth) ss 65(1), 107, 109
Public Governance, Performance and Accountability Rule 2014 (Cth) s 24
Safety, Rehabilitation and Compensation Act 1988 (Cth).

North Coast Environment Council v Environment Protection Authority [2021] NSWCATAD 29
ADMINISTRATIVE LAW – government information – access application – provided to an agency in confidence – diminish the competitive commercial value of information – prejudice legitimate business, commercial or financial interests – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure.

Norkin v University of New England [2021] NSWCATAD 28
FREEDOM OF INFORMATION – government information – refusal to deal with application – remittal.

Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6
NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW) STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act.

The Commissioner of the Australian Federal Police v Pratten [2021] NSWSC 69
PROCEEDS OF CRIME – pecuniary penalty under s 116 of Proceeds of Crime Act 2002 (Cth) – defendant convicted of obtaining financial advantage by deception by concealment of taxable income contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) – benefit derived from offending – whether penalty can be calculated by reference to tax payable on concealed income – determination of penalty does not depend on Court’s assessment of income tax payable by defendant – whether penalty can be imposed without evidence of Commissioner of Taxation’s assessment of income tax payable on assessable income – order made CONSTITUTIONAL LAW – Notices to Attorneys General pursuant to Judiciary Act 1903 (Cth) s 78B – where short notice given and some responses not received – whether court can proceed – where notices misconceived – no adjournment required CONSTITUTIONAL LAW – whether making of pecuniary money order breaches Ch III of the Constitution – whether penalty sought is justiciable – whether abuse of process – no issue of principle CIVIL PROCEDURE – application for referral to pro bono legal panel and stay of proceedings – no issue of principle CIVIL PROCEDURE – motion for leave to issue subpoena to parties’ solicitor – where written instructions given to expert in evidence – where evidence sought relates to legal advice privilege – motion dismissed.

Pillinger v Northern Sydney Local Health District [2021] NSWCATAD 14
ADMINISTRATIVE LAW – access to government information – investigation into complaints – whether overriding public interest against disclosure.

Dare v SafeWork NSW [2021] NSWCATAD 12
ADMINISTRATVE LAW – administrative review – review of decision to cancel and disqualify the accreditation of an assessor of high risk work licences under cl 134 of the Work Health and Safety Regulation 2017 – whether Conditions for conducting high risk work license assessments in NSW breached – decisions set aside and varied.

The Australian Press Council Inc v Southey [2021] NSWCATAP 9
HUMAN RIGHTS – anti-discrimination – transgender grounds – preliminary question – definition of ‘services’ – whether adjudication of complaint by private organisation, the Australian Press Council, is within the definition of ‘services’.

EJS v NSW Trustee and Guardian [2021] NSWCATAD 10
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian – interests and welfare of protected person – whether to pursue refund of legal costs – financial management order.

Legislation

Commonwealth

Act Compilation

Administrative Appeals Tribunal Act 1975
02/02/2021 – Act No. 91 of 1975 as amended

Regulation

Australian Security Intelligence Organisation Amendment (Permitted Disclosure) Regulations 2021 
05/02/2021 – This instrument amends the Australian Security Intelligence Organisation Regulation 2016 to make consequential and technical updates following the commencement of Schedule 1 to the Australian Security Intelligence Organisation Amendment Act 2020.

Bills

Regulatory Powers (Standardisation Reform) Bill 2020 [Provisions]
On 10 December 2020 the Senate referred the provisions of the Regulatory Powers (Standardisation Reform) Bill 2020 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 19 February 2021.

Regulations

NSW

Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts – Amendment) Order 2021 (2021-35) – published LW 12 February 2021
Administrative Arrangements (Administrative Changes – Ministers and Public Service Agencies) Order 2021 (2021-36) – published LW 12 February 2021

Bills introduced – Government
Prevention of Cruelty to Animals Amendment Bill 2021

Non-Government
Government Information (Public Access) Amendment (Recklessly Destroying Government Records) Bill 2021

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.

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