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NSW Government Bulletin

17 March 2021

#Government

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NSW Government Bulletin

Holding Redlich Government lawyers CLE intensive 2021: Last minute CPD for government lawyers, now on demand

Holding Redlich hosted its annual Government lawyers CLE intensive program earlier this month.

The two-week program covered 17 topics relevant to government lawyers, with the overarching theme “Times of crisis, times of change”.

Our experts across key practice areas helped our government clients to understand:

  • the significant changes in NSW building industry regulation and their implications for government agencies
  • the impact of 2020 on NSW property transactions, including the adoption of electronic transactions and the use of digital signatures
  • planning reforms arising out of COVID-19 and initiatives aimed at cushioning the impact on developments in NSW
  • key elements of the new Commonwealth Data Availability and Transparency Bill 2020
  • how to handle privacy incidents
  • COVID-19’s impact on workplaces and the risks and opportunities presented by work from home arrangements
  • the legal risks arising from workplace investigations 
  • Chain of Responsibility for government agencies and businesses
  • model litigant obligations for government lawyers
  • how royal commissions, inquiries and regulatory investigations can be managed
  • insolvency and debtor issues in a post-COVID-19 environment
  • the latest on the 'peculiar tort' of misfeasance in public office
  • ACCC's enforcement priorities for 2021
  • recent IBAC and Ombudsman investigation reports involving local councils 
  • how an energy from waste (EfW) project works, including the key contract documents and commercial arrangements
  • key trends in IT contracts and being aware of issues such as liability models for software as a service, cyber insurance requirements and service levels
  • how best to conduct legal research as a government lawyer. 

Each session contains one CPD unit in substantive law, ethics and professional responsibility, practice management and business skills or professional skills.

If you would like to revisit any of the sessions and/or download a copy of the presentation slides, please click into our on-demand webinar library here. A one-time registration is required on your first visit.

In the media

DTA hosts framework to protect data
The Digital Transformation Agency (DTA) has announced the release of a Hosting Certification Framework, offering departments and agencies the assurance that the whole-of-government hosting strategy principles are in place and government systems and data are secure (11 March 2021).  More...

HRLC: Online surveillance bill a dangerous overreach
New online surveillance laws proposed by Home Affairs Minister Peter Dutton are dangerous, undemocratic and go far beyond what could be considered necessary and proportionate. The Government is yet to provide anything close to sufficient evidence to justify the need for the expansive new powers it is proposing (10 March 2021).  More...

Telco First pays $79,800 penalty for spam text messages
Marketing company Telco First (trading as Compare With Us) has paid a $79,800 infringement notice after an Australian Communications and Media Authority (ACMA) investigation found it sent more than 65,000 illegal spam text messages (10 March 2021).  More...

Law Council supporting RRR communities
The launch of the Law Council of Australia’s Rural, Regional and Remote (RRR) National Strategic Plan 2021-2023, heralds the profession’s reinvigorated commitment to RRR lawyers. Access to justice is undermined when there is a critical shortage of suitable legal representation in particular regions (09 March 2021).  More...

CSIRO to share all with Open Access
The Commonwealth Scientific and Industrial Research Organisation (CSIRO) has announced that the details of its research are to be made accessible to the public as it moves towards a policy of Open Access. The global shift towards Open Access aims to democratise science by ensuring research is available to everyone (08 March 2021).  More...

Critical technologies cut into policies
The Department of the Prime Minister and Cabinet’s Critical Technologies Policy Coordination Office has launched a program of stakeholder engagement activities for 2021, exploring current and emerging critical technologies to recognise those which will be key to Australia’s future prosperity. Read the Protecting and Promoting Critical Technologies paper here (08 March 2021).  More...

Independent review into parliamentary workplace culture a positive says Law Council
The appointment of Sex Discrimination Commissioner Ms Kate Jenkins to oversee the inquiry is to be applauded. All employers have a duty to eliminate sex discrimination, sexual harassment and victimisation. Sexual harassment is entirely unacceptable wherever it occurs (05 March 2021).  More...

Market and social research privacy code updated
The OAIC has approved amendments to the Privacy (Market and Social Research) Code 2014, which code sets out how AMSRO members must comply with the Australian Privacy Principles in the Privacy Act 1988 in the conduct of market and social research (04 March 2021).  More...

Public inquiry into allegations concerning the Hon John Sidoti MP
The NSW ICAC will hold a public inquiry starting Monday 29 March 2021 as part of an investigation it is conducting into allegations concerning the State Member for Drummoyne, the Hon John Sidoti MP (Operation Whitney) (03 March 2021).  More...

Resumption of INSLM inquiry a positive move
The announcement that an inquiry into certain facets of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) will continue, is welcomed by the LCA. The Law Council believes that the principle of open justice is particularly important in criminal proceedings, especially in the prosecution of official secrecy offences by current or former Commonwealth officials and others such as their legal advisors (02 March 2021).  More...

LCA: Government must act on Royal Commission recommendations
The findings and recommendations outlined in the final report of the Royal Commission into Aged Care Quality and Safety, indicate there is much to be done to address systemic issues within the aged care sector says the LCA. The rights of older people need to be embedded in the planning, provision and monitoring of aged care services (01 March 2021).  More...

In practice and courts

AAT updates special measures practice directions
The AAT has updated the special measures practice directions put in place last year to facilitate operations during COVID-19. Following changed circumstances and government advice, the AAT will now provide some in-person services, and the practice directions have been updated to reflect this. The practice directions are available from the AAT website and come into effect on Monday 8 March 2021.

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. View Issue No. 5/2021, 8 March 2021.

New hacker threat to email servers
Microsoft has announced that it has detected an overseas hacking group exploiting vulnerabilities in its Exchange Server email product. The issue is a new form of attack which allows criminals to access the server and data on the network. Since then, evidence has emerged that tens of thousands of businesses worldwide have been affected (02 March 2021).  More...

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 is to be launched on 25 March and will be freely available. Read more here.

DTA: Hosting Certification Framework
Will assist government agencies to mitigate against supply chain and ownership risks and enable them to identify and source appropriate hosting and related services. The framework worked in conjunction with a suite of other policies and frameworks, such as the Foreign Investment Policy and the Protective Security Policy Framework (11 March 2021).  More...

AHRC: Independent Review into Commonwealth Parliamentary Workplaces
The Australian Human Rights Commission is conducting an Independent Review into the workplaces of Commonwealth Parliamentarians and their staff. 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. Download the PDF here (05 March 2021).

OAIC submissions
Commonwealth Integrity Commission – draft legislation 10 March 2021
Online Safety Bill 2021 – submission to the Environment and Communications Legislation Committee 10 March 2021
Exposure Draft – Online Safety Bill 2020 10 March 2021

ACMA consultations
Credit betting prohibitions in the Interactive Gambling Act – consultation 4/2021. We are looking into whether interactive gambling credit betting prohibitions are operating effectively. Closes 31 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. Read more here.

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 will start 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 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

JUDCOM: Sentencing Bench Book
1 March 2021 – Update 47, February 2021
Statement from the President of the New South Wales Bar Association regarding the Rule of Law. The President, Michael McHugh SC has issued a media statement stating about the meaning and operation of the Rule of Law. Click here to read a full copy of the media statement (12 March 2021).  More...

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.

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. Added new pets in strata survey. Submissions close 7 April 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.

ICAC: Current investigations March 2021
NSW State Member for Drummoyne – allegations concerning improper influence and breach of public trust (Operation Witney).
Status: Current 3 March 2021 – The ICAC is investigating allegations that, between 26 March 2011 and 6 February 2018, the State Member for Drummoyne, the Hon John Sidoti MP, improperly influenced another person, or persons, to dishonestly or partially exercise any of their official functions. Download the Operation Witney public inquiry COVID-19 protocol here.

Published – articles, papers, reports

A tax system that works for small business
Australian Small Business and Family Enterprise Ombudsman: 04 March 2021
Recommendations in the report includes waiving interest and penalties for a first offence, restricting ATO review and audit periods to one year when a small business is using an accredited tax or BAS agent, and immediately ceasing debt recovery action against a small business that is seeking a review of its tax position. Read more here.

2020 state of the health funds report
Commonwealth Ombudsman: 01 March 2021
The purpose of this report is to provide consumers with additional information to assist them to make decisions about private health insurance. For existing policyholders, the report details information that allows them to compare the performance of their fund with all other health funds. Click here to read the report.

Effectiveness of the planning and management of veteran centric reforms
ANAO Report No 30: 09 March 2021
The objective of the audit was to examine the effectiveness of the Department of Veterans’ Affairs' planning and management of the Veteran Centric Reform program. Read more here.

Experiences of coercive control among Australian women
Boxall H & Morgan A; AIC Statistical Bulletin No 30: 11 March 2021
Family and domestic violence, intimate partner, women, surveys. Awareness of coercive control within the context of abusive intimate relationships is greater than ever before in Australia. Click here to read more.

Cases

Dubow v Mid-Western Regional Council [2021] NSWSC 225
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – where triable factual and legal questions
CIVIL PROCEDURE – application for determination of separate question – where time for judicial review expired – whether an extension of time should be determined prior to final hearing
CIVIL PROCEDURE – claim seeking judicial review of decisions by local council to impound and sell stock – application to amend amended summons – application granted on condition of compliance with UCPR, r 59.4.

Else v Transport for NSW [2021] NSWCATAD 59
ADMINISTRATIVE REVIEW – government information (public access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – whether endanger or prejudice any system or procedure for protecting the safety of any person – whether facilitate the commission of a criminal offence – whether prejudice the effective exercise of an agency’s functions – clauses 1(f), 2(d) and 2(f) of the table in s14.

Malliate v Commissioner of Police, NSW Police Force [2021] NSWCATAD 56
ADMINISTRATIVE LAW – freedom of information – application for review out of time – whether reasonable explanation for the delay.

EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55
ADMINISTRATIVE LAW – jurisdiction of tribunal – matter between a state and resident of another state – whether tribunal exercising judicial power
HUMAN RIGHTS – legislation – Privacy and Personal Information Protection Act 1998.

Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20
STATUTORY CONSTRUCTION – whether objectors to designated development where consent was refused are entitled to be given notice of the appeal – proper interpretation of phrase “in respect of which the objector has a right of appeal under this Division”
JOINDER – whether objector should be joined as a party to the appeal – whether objector able to raise any issue that should be considered but will not likely be sufficiently addressed in the appeal absent joinder – whether joinder is in the interest of justice or is in the public interest – objector joined.

EHG v Commissioner of Police [2021] NSWCATAD 54
ADMINISTRATIVE LAW – administrative review of conduct under the Privacy and Personal Information Protection Act 1998 – whether personal information disclosed in breach of s 18 and 19 of the Privacy and Personal Information Protection Act 1998 – personal information sent by email to incorrect email address – non-application of Electronic Transactions Act 2000 – meaning of disclosure – sending email containing personal information to incorrect email address disclosed personal information to recipient of email.

Thomson v Commissioner of Police [2021] NSWCATAD 53
ADMINISTRATIVE LAW – public access to government information – request for information concerning a complaint alleging police misconduct – personal information – whether prejudice to the effective exercise of an agency’s functions – public interest in transparency and accountability – balancing public interest considerations.

McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46
ADMINISTRATIVE LAW – building and construction – home building – experience – instrument.

Wang v Chief Commissioner of State Revenue [2021] NSWCATAD 45
ADMINSTRATIVE LAW – First Home Owner Grant – reversal of decision to authorise payment of grant – decision to require repayment – penalty – whether residence requirement met.

Fisher v Commissioner of Police [2021] NSWCATAD 44
ADMINISTRATIVE LAW – access to government information – access application – refusal to deal with application – whether information available to applicant under subpoena or other order of a court – exercise of discretion to refuse to deal with application. ADMINISTRATIVE LAW – access to government information – refusal to deal with application – public interest against disclosure – whether overriding public interest against disclosure.

Tran v Commissioner of Victims Rights [2021] NSWCATAD 43
ADMINISTRATIVE LAW – merits review – victim's rights and support – restitution order against person convicted of relevant offence – dispute regarding reasonableness of victim's support.

Sumer Child Care Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 42
ADMINISTRATIVE LAW – education and care services – national law – review of decision to cancel provider approval – breach of condition of approval – history of non-compliance – decision stayed – remediation.

Legislation

Commonwealth

Bills

Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021
Assent Act No: 21. Year: 2021. 02 March 2021 – amends the Competition and Consumer Act 2010 to establish a mandatory code of conduct that applies to news media businesses and digital platform corporations when bargaining in relation to news content made available by digital platform services.

Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020
Assent Act No: 9. Year: 2021. 01 Mar 2021 – amends the Aged Care Act 1997 and Aged Care Quality and Safety Commission Act 2018 to: implement a Serious Incident Response Scheme for residential aged care and flexible care delivered in a residential aged care setting; and expand the Aged Care Quality and Safety Commissioner's powers to administer and enforce the requirements of the scheme and the responsibilities of approved providers and related offences; and Aged Care Quality and Safety Commission Act 2018 to make amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2020.

Acts

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021
04/03/2021 – Act No. 13 of 2021 as made.

Federal Circuit and Family Court of Australia Act 2021
04/03/2021 – Act No. 12 of 2021 as made.

Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021
04/03/2021 – Act No. 9 of 2021 as made.

Act compilation

Commonwealth Electoral Act 1918
10/03/2021 – Act No. 27 of 1918 as amended. 

Privacy Act 1988
10/03/2021 – Act No. 119 of 1988 as amended. 

Proceeds of Crime Act 2002
09/03/2021 – Act No. 85 of 2002 as amended.

Aged Care Act 1997
09/03/2021 – Act No. 112 of 1997 as amended. 

COAG Reform Fund Act 2008
05/03/2021 – Act No. 156 of 2008 as amended.

Regulations

Privacy (Market and Social Research) Code 2021
12/03/2021 – this instrument is an industry developed Australian Privacy Principle code that sets out how the Australian Privacy Principles are to be applied and complied with by members of the Association of Market and Social Research Organisations in the market and social research sector. 

Australian Federal Police (Approval of Screening Devices) Instrument 2021
10/03/2021 – this instrument provides for certain breath alcohol screening devices to be “approved screening devices” for the use of tests permitted under the Australian Federal Police Act 1979. 

Aged Care Legislation Amendment (Serious Incident Response Scheme) Instrument 2021
09/03/2021 – this instrument prescribes arrangements relating to the Serious Incident Response Scheme for residential aged care, including flexible care delivered in a residential care setting. 

Witness Protection (Complementary Witness Protection Laws) Declaration 2021
02/03/2021 – this instrument declares specified laws of states and territories as complementary witness protection laws and repeals the Witness Protection (Complementary witness protection laws) Declaration 2011.

Australian National Audit Office Auditing Standards 2021
02/03/2021 – this instrument repeals and replaces the previously published Australian National Audit Office (ANAO) Auditing Standards. 

Marriage (Celebrant Professional Development) Statement 2021
01/03/2021 – this instrument provides Commonwealth registered marriage celebrants with a list of activities to choose from to complete their ongoing professional development obligations for 2021, including one compulsory activity.

NSW

Regulations and other miscellaneous instruments
Crimes (Administration of Sentences) Amendment (Miscellaneous) Regulation 2021 (2021-101) – published LW 12 March 2021
Legal Profession Uniform Law Application Act 2014 – NSW Admission Board Amendment (Fees) Rule 2021 (2021-105) – published LW 12 March 2021
Public Health Amendment (COVID-19 Spitting and Coughing) Regulation 2021 (2021-106) – published LW 12 March 2021
State Debt Recovery Act 2018 – Referable Debt Order (2021-113) – published LW 12 March 2021

Proclamations commencing Acts
Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 No 36 (2021-93) – published LW 5 March 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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