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NSW Government Bulletin

17 August 2022

14 min read

#Government, #Data & Privacy

Published by:

Clare Giugni

NSW Government Bulletin

Transparency about automated decision-making: A reminder for government agencies

Guidance issued by the NSW Information Commissioner in September 2020 reminds government agencies of the need to ensure they can meet their freedom of information obligations under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), even where a process is digitised and outsourced to a third party contractor.

The Information Commissioner recognises that individuals are increasingly subject to automated decision-making and that “to fully exercise their rights, it is important that individuals are able to access information on how a decision is made and what information was used to reach that decision.”

As agencies digitise more and more of their processes, a greater volume of information is held by third party technology or software providers. To ensure such information remains publicly accessible, it is critical that entities ensure all government contracts provide the relevant government customer with an immediate right of access to information held by the contractor, as required by section 121 of the GIPA Act.

The outsourcing and automation of government processes can, however, put into conflict an agency’s freedom of information obligations and the commercial interests of the third party contractor. An NCAT decision published earlier this year highlights this conflict.

2022 case finalises a 2019 disputed decision

That case involved an application for access to information relating to the calculation of social housing rental subsidies by the Department of Communities and Justice (Department). The Department refused the application on the basis that the information was held by a third party software provider, Northgate Public Services (Northgate), which used a proprietary algorithm to determine the subsidy.

The NCAT ultimately upheld the refusal to grant access to this information because it would put the contractor at a “substantial commercial disadvantage in relation to the agency”. Section 121(2) of the GIPA Act states that the right to access information from a contractor does not extend to information that, if disclosed, would have this effect. The NCAT determined Northgate would be at risk of such a disadvantage because if the Department had access to Northgate’s proprietary algorithm, it may no longer require Northgate’s services.

While this case highlights a tension between freedom of information obligations and contractors’ intellectual property, it does not preclude government agencies from securing the contractual right to immediate access to contractor’s records that is contemplated in section 121. Whether certain information sought would put the contractor at a “substantial commercial disadvantage” would require consideration on a case-by-case basis.

Changing community attitudes

While transparency in this case was not granted, there are increasing calls for transparency in decision-making, explainability of decision processes and ethical use of AI.

It is expected these pressures will force agencies to contract with providers of AI who can assist the agency to meet its transparency obligations.

Authors: Lyn Nicholson & Clare Giugni

In the media

NSW Government backs Broderick Review for a safer NSW Parliament
Premier Dominic Perrottet has announced that the NSW Government will support the recommendations of the damaging Broderick review that has shed light on a culture of bullying, harassment and sexual assault in NSW Parliament (12 August 2022).  More…

Parliamentary flood report finds SES and Resilience NSW failed Lismore, northern NSW communities
A parliamentary inquiry has found the government agencies in charge of preparing for and responding to major flooding in New South Wales this year failed affected communities. (9 August 2022).  More…

Native forest logging sent to parliamentary debate after more than 20,000 people sign petition
New South Wales state parliament has been compelled to debate whether to end native forest logging after more than the required number of residents signed an online petition to force the issue onto the parliamentary agenda. (3 August 2022).  More…

Calls to upgrade suburban stadiums after collapse
The NSW government is under pressure to upgrade suburban stadiums after a railing collapsed during a schoolboys rugby match. (7 August 2022).  More…

Practice and Courts

AAT Bulletin Issue No.16/2022
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions (8 August 2022). Read more here.

Supreme Court of NSW Court of Appeal – Decisions Reversed as at 12 August 2022. Read more here.

Published – articles, papers and reports

Independent Review of Bullying, Sexual Harassment and Sexual Misconduct in NSW Parliamentary Workplaces 2022
In July 2021, the NSW Parliamentary Executive Group announced the engagement of former Sex Discrimination Commissioner Elizabeth Broderick AO to lead an independent review into bullying, harassment, and sexual misconduct in NSW Parliament workplaces. The review findings have now been published. Read the report here.

Response to major flooding across New South Wales in 2022
Major flooding in NSW in February-March 2022 was a catastrophic disaster, causing widespread devastation and damage – particularly in the Northern Rivers and Hawkesbury regions. Tragically, lives were lost, thousands of homes were damaged or destroyed, and significant local infrastructure was damaged. This inquiry was set up to consider the NSW Government's preparedness, coordination, and response to the flooding events and has now published its findings. Read the report here.

Property Tax Reform and Home Ownership Report
The NSW Treasury has released a report that examines the potential increase in home ownership that could arise if the NSW Government replaced stamp duty and the existing land tax with a broad-based property tax levied on unimproved land values, as proposed in a Consultation Paper issued in November 2020 and updated in a Progress Paper issued in June 2021. Read the report here.

MERIT Model of Care
NSW Health has published a report outlining the MERIT program model of care (MOC), and outlines the health service delivery within a therapeutic jurisprudence response to crime and offending behaviour. The MOC describes the activities local health district and non-government organisation MERIT teams provide, to ensure clients receive person-centred, integrated, best practice AOD treatment. Read more here.

Cases

Council of the City of Ryde v Network Developments NSW Pty Ltd [2022] NSWLEC 101
JUDICIAL REVIEW: whether complying development certificate validly granted by certifier – whether at the time it was granted the development was prohibited or permissible with consent in the relevant zone – whether “development application” in a savings provision in a local environmental plan included complying development certificates – complying development invalid because development prohibited in the zone at the time of grant.

Environmental Planning and Assessment Act 1979, ss 1.4, 4.2(5), 4.12, 4.15 and 4.28, Interpretation Act 1987, ss 5(2), 11, 30(1) and 34(1), Ryde Local Environmental Plan 2014, cl 1.8A(3), Ryde Local Environmental Plan 2014 (Amendment No 28), State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 1.17(1), 1.18(1)(b), 3B.1 and 3B.1A and Pt 3B.

ZXO v Public Guardian [2022] NSWCATAP 260
GUARDIANSHIP – whether proposed guardian is “able to exercise the functions conferred … by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW)

GUARDIANSHIP – Guardianship Act – nature of obligation to “have regard to” matters in s 14(2) of the Guardianship Act 1987 (NSW)

GUARDIANSHIP – functions of a guardian – whether function given to guardian to consent to medical treatment under Guardianship Act, Pt 5 authorises guardian to make “end-of-life decisions”

APPEALS – Civil and Administrative Tribunal Act 2013 (NSW) – nature of obligation to give adequate reasons

Civil and Administrative Tribunal Act 2013 (NSW) , Guardianship Act 1987 (NSW)

Sillitoe v Commissioner for Fair Trading [2022] NSWCATAD 263
HOME Building Act – whether evidence establishes a wide range of building construction work experience – whether experience relevant industry experience – Individual contractor licence – General building work – whether evidence that work performed can be verified by witnesses who are not supervisors

Administrative Decisions Review Act 1997, Civil and Administrative Tribunal Act 2013, Home Building Act 1989, Licensing and Registration (Uniform Procedures) Act 2002

Pillay v Commissioner for Fair Trading [2022] NSWCATOD 90
ADMINISTRATIVE LAW – administrative review – decision to refuse to reissue/renew the applicant’s Class 1 – Real Estate – Sales or Leasing licence – whether to extend time to lodge application for external review – in the absence of having duly applied for an internal review, whether it is necessary to deal with the applicant’s application – s 41 Civil and Administrative Tribunal Act 2013 (NSW) and s 55(4)(b) of the Administrative Decisions Review Act 1997 (NSW)

Administrative Decisions Review Act 1997 (NSW), Civil and Administrative Tribunal Act 2013 (NSW) , Licensing and Registration (Uniform Procedures) Act 2002 (NSW), Property and Stock Agents Act 2002 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW)

SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – defendant conducted a business or undertaking involving the dismantling and wrecking of cars for recycling and the sale of used automobile parts – workers were loading a flatbed truck into a shipping container using a wheel loader – tray of the truck fell while suspended and struck worker – failure to undertake risk assessment – failure to establish and maintain exclusion zone – failure to develop and enforce safe work procedure or safe work method statement – failure to provide instruction, information and training

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 10A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E, Fines Act 1996 (NSW), ss 6, 122, Occupational Health and Safety Act 2000 (NSW), s 8(1), Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32

Gomez v Transport for NSW [2022] NSWCATOD 88
ADMINISTRATIVE LAW – bus driver authority – refusal of authority – negligent driving occasioning grievous bodily harm – repute – fit and proper person.

Civil and Administrative Tribunal Act 2013, Administrative Decisions Review Act 1997, Passenger Transport Act 1990, Passenger Transport (General) Regulation 2017

Bushell v Northern Beaches Council [2022] NSWLEC 1397
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, div 4.8, Environmental Planning and Assessment Regulation 2000, cl 77, Land and Environment Court Act 1979, s 34, Manly Local Environmental Plan 2012, cl 1.2

MacPherson v Northern Beaches Council [2022] NSWLEC 1424
APPEAL – development application – grant of consent subject to conditions requiring changes to the design – conciliation conference – agreement reached – orders made

Environmental Planning and Assessment Act 1979 , ss 4.15, 4.16, 8.7, 8.15, Environmental Planning and Assessment Regulation 2000, cl 55, Land and Environment Court Act 1979, s 34, Manly Local Environmental Plan 2013, cll 4.3, 4.6, 6.5, 6.9, State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

ERJ v South Eastern Sydney Local Health District [2022] NSWCATAD 260
PRIVACY – Health Privacy Principle 11 – was the Applicant’s health information disclosed for the primary purpose – would the Applicant reasonably expect his information to be disclosed for a secondary purpose

Administrative Decisions Review Act 1997 (NSW), Civil and Administrative Tribunal Act 2013 (NSW), Health Records and Information Privacy Act 2022 (NSW), Privacy and Personal Information Act 1998 (NSW)

Legislation

Act Compilation - Cth
Aged Care Act 1997 12/08/2022 – Act No. 112 of 1997 as amended
Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021 12/08/2022 - Act No. 115 of 2021 as amended
Business Names Registration (Fees) Amendment (Registries Modernisation) Act 2020 12/08/2022 - Act No. 66 of 2020 as amended
Treasury Laws Amendment (2021 Measures No. 1) Act 2021 –11/08/2022 - Act No. 82 of 2021 as amended
Corporations Act 2001 05/08/2022 - Act No. 50 of 2001 as amended

Bills Introduced – Government
Casino Legislation Amendment Bill 2022 9 August 2022
Crimes (Sentencing Procedure) Amendment Bill 2022 10 August 2022
Crimes Legislation Amendment (Assaults on Frontline Emergency and Health Workers) Bill 2022 10 August 2022
Health Legislation (Miscellaneous) Amendment Bill (No 2) 2022 10 August 2022
Industrial Relations Amendment (Dispute Orders) Bill 2022 9 August 2022
Scrap Metal Industry Amendment (Review) Bill 2022 10 August 2022
Workers’ Compensation (Dust Diseases) Amendment Bill 2022 10 August 2022

Bills Introduced – Non-Government
Prevention of Cruelty to Animals Amendment (Animal Sentience) Bill 2022 10 August 2022
Road Transport Amendment (Prohibition of U-turns and 3-point Turns in School Zones) Bill 2022 11 August 2022

Bills revised following amendment in Committee;
Casino Legislation Amendment Bill 2022 9 August 2022
Crimes Amendment (Prohibition on Display of Nazi Symbols) Bill 2022 9 August 2022
Electoral Legislation Amendment Bill 2022 11 August 2022
Transport Administration Amendment (Rail Trails) Bill 2022 11 August 2022

Bills passed by both Houses of Parliament;
Casino Legislation Amendment Bill 2022 11 August 2022
Crimes Amendment (Prohibition on Display of Nazi Symbols) Bill 2022 9 August 2022
National Parks and Wildlife Amendment (Reservations) Bill 2022 11 August 2022
Ombudsman Legislation Amendment Bill 2022 9 August 2022
Transport Administration Amendment (Rail Trails) Bill 2022 11 August 2022

Regulation and other miscellaneous instruments;
Administrative Arrangements (Administrative Changes–Miscellaneous) Order (No 8) 2022 (2022-444)  LW 8 August 2022
Charitable Trusts Regulation 2022 (2022-446)  LW 12 August 2022
Employment Protection Regulation 2022 (2022-447) LW 12 August 2022
Environmental Planning and Assessment Amendment (Housing Supply) Regulation 2022 (2022-448) – published LW 12 August 2022
Health Legislation Amendment (Fees) Regulation 2022 (2022-445)  LW 10 August 2022
Protection of the Environment Operations (General) Regulation 2022 (2022-449) LW 12 August 2022
Roman Catholic Church Communities’ Lands Regulation 2022 (2022-450)  LW 12 August 2022
Subordinate Legislation (Postponement of Repeal) Order 2022 (2022-452) LW 12 August 2022
Trustee Companies Regulation 2022 (2022-453) LW 12 August 2022
Water Management (General) Amendment Regulation 2022 (2022-454)  LW 12 August 2022
Workers’ Compensation (Dust Diseases) Amendment (Scheduled Diseases) Regulation 2022 (2022-455) LW 12 August 2022
Access Licence Dealing Principles (Interstate Assignments) Order 2022 (2022-433) LW 5 August 2022
Administrative Arrangements (Administrative Changes–Miscellaneous) Order (No 7) 2022 (2022-443)  LW 5 August 2022
Final Determination (2022-434) LW 5 August 2022
Property NSW Amendment (Transfer of Property) Order (No 3) 2022 (2022-435) LW 5 August 2022

Environmental Planning Instruments.
Forbes Local Environmental Plan 2013 (Amendment No 12) (2022-456)  LW 12 August 2022
Inner West Local Environmental Plan 2022 (2022-457) LW 12 August 2022
Lake Macquarie Local Environmental Plan 2014 (Map Amendment No 4) (2022-458) LW 12 August 2022
State Environmental Planning Policy Amendment (Housing Supply) 2022 (2022-451)  LW 12 August 2022
Wollongong Local Environmental Plan 2009 (Amendment No 51) (2022-459)  LW 12 August 2022
Campbelltown Local Environmental Plan 2015 (Amendment No 31) (2022-436)  LW 5 August 2022
Liverpool Local Environmental Plan 2008 (Amendment No 93) (2022-437)  LW 5 August 2022
Manly Local Environmental Plan 2013 (Map Amendment No 1) (2022-438)  LW 5 August 2022
Shoalhaven Local Environmental Plan Amendment (Complying Development) 2022 (2022-439)  LW 5 August 2022
State Environmental Planning Policy (Planning Systems) Amendment (Aboriginal Land) 2022 (2022-440) LW 5 August 2022
State Environmental Planning Policy (Transport and Infrastructure) Amendment (Miscellaneous) (No 2) 2022 (2022-441) LW 5 August 2022
Wagga Wagga Local Environmental Plan 2010 (Map Amendment No 8) (2022-442) LW 5 August 2022

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 article 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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