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NSW Government Bulletin

02 September 2020

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NSW Government Bulletin

NSW driver's licenses data breach – do you know who has your data and how are you managing third party contractors?

As recently reported in the tech press, tens of thousands of scanned NSW driver's licenses and other documents with additional identifying information were found on an open Amazon Web Services storage server. The documents appeared to be from September and October 2018.

They were found by a security consultant investigating a different breach. The breach is being investigated and Transport for NSW has said it is not the source of the breach.

This raises the issue of using third party contractors and outsourcing arrangements to collect, process and store sensitive information such as that on driver’s licences, which can be used for identity theft. Unlike a credit card that can be cancelled, a NSW driver’s licence number stays with you for life.

For those that collect this kind of information it is a reminder to ensure that information is stored in a secure location, and if the collection is being outsourced to a third party provider, ensuring that third party is also using secure storage.

Further, it is a reminder to destroy data once no longer required.

Author: Lyn Nicholson

In the media

Legal stoush over South Korean company Kepco's Bylong Valley coal mine project not over yet
Hearings in the NSW Land and Environment Court has seen South Korean company Kepco attempt to have the decision to reject a multi-million-dollar mining project in the NSW Bylong Valley overturned. The IPC took a back seat in this week's proceedings because they needed to remain impartial in case the judge rules against the commission (29 August 2020).  More...

Over 54,000 scanned NSW driver's licences found in open cloud storage
Tens of thousands of scanned NSW driver's licenses and completed tolling notice statutory declarations were left exposed on an open Amazon Web Services storage instance, but Transport for NSW doesn't know how the sensitive personal data ended up in the cloud (28 August 2020).  More...

ICAC finds former FACS officer corruptly obtained over $1.67 million for own company
The NSW ICAC has found that a former headlease coordinator for the then Department of Family and Community Services (FACS) engaged in serious corrupt conduct by authorising, or arranging authorisation, for over $1.67 million in payments for work on properties leased for public housing to be made to his own company (27 August 2020).  More...

Strong early results for landmark justice reforms
The first evaluation of the NSW Government’s sentencing reforms shows they are working as intended by giving more offenders an opportunity to turn their lives around. Attorney General and Minister for the Prevention of Domestic Violence Mark Speakman said these reforms are a key component of the government’s strategy to drive down reoffending rates and ensuring community safety remains paramount (27 August 2020).  More...

Identity crime and misuse in Australia, 2019
The estimated cost of identity crime in Australia in 2018–19 (including direct and indirect costs) was $3.1b—17 percent more than in 2015–16. The Australian Institute of Criminology (AIC) has released three new statistical reports examining identity crime and misuse in Australia (27 August 2020).  More...

HRLC: Laws to protect public interest journalism must be strengthened
A long awaited report from a Parliamentary committee has recognised the need for significant legal changes to protect public interest journalism, however the recommendations don’t go far enough to ensure journalists are not sent to prison for doing their job ( 27 August 2020).  More...

Law Council welcomes recommendations for sweeping changes to media freedom laws
The Law Council of Australia has welcomed key recommendations of the Parliamentary Joint Committee on Intelligence and Security in its review of press freedom, including the requirement for search warrants to be issued by senior judges and contested by public interest advocates (27 August 2020).  More...

New data shows Australians want accountable AI
New research released by the Australian Human Rights Commission shows 46% of people in Australia are not aware that the government makes important decisions about them using artificial intelligence (AI) (25 August 2020).  More...

In practice and courts

Regulation of litigation funding schemes
Amendments to the Corporations Regulations 2001 (Cth) took effect on 22 August 2020, providing for the regulation of litigation funding schemes as managed investment 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.  More...

NSW Bar Association: Submission to the NSW Parliamentary Inquiry into the Reputational Impact on an Individual Being Adversely Named in the ICAC’s Investigations
The Association has made a submission to the Committee on the Independent Commission Against Corruption’s inquiry into the reputational impact on an individual being adversely named in the ICAC’s. The submission considered existing safeguards and remedies, and problematic aspects of an exoneration protocol.  More...

District Court Practice Notes Civil No 1; Civil No 7 and Criminal No 20 commencement dates
His Honour Justice Derek Price AO, the Chief Judge of the District Court of NSW, has issued an updated District Court Practice Notes Civil No 1, Civil No 7 and Criminal Practice Note No 20, which have been Gazetted and commence on Monday 31 August 2020.

BOSCAR: evaluation of NSW Government sentencing reforms
The Bureau of Crime Statistics and Research (BOCSAR) has released two reports in relation to the NSW Government’s sentencing reforms that commenced on 24 September 2018:
New South Wales sentencing reforms: results from a survey of judicial officers
The impact of the 2018 NSW sentencing reforms on supervised community orders and short-term prison sentences. (27 August 2020)

COVID-19: Information for Attending Court
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments.(14 August 2020).

Coronavirus (COVID-19): Current hearing arrangements to continue at NCAT
NCAT has been conducting all stages of its hearings by phone, audio visual link or on the papers since 30 March 2020. These current arrangements will continue until at least the end of August 2020.  More...

Reminder: 2020 Professional Standards Scheme commences
The fourth New South Wales Bar Association Professional Standards Scheme commenced on 1 July 2020 and will remain in effect until 30 June 2025.  More...

ICAC: Reports

Investigation into the over-payment of public funds by the University of Sydney for security services
(Operation Gerda)(27 August 2020).  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 hearing or of adjournments or delay.  More...

Published – articles, papers, reports

Identity crime and misuse in Australia 2019
Franks C & Smith R. Statistical Report no. 29. Canberra: Australian Institute of Criminology: 27 August 2020
The 2019 survey of identity crime and misuse found 25 percent of respondents had experienced misuse of their personal information at some time in their lives, nearly 12 percent within the previous year.  More...

Sexual assault in Australia - in focus
Australian Institute of Health and Welfare: 28 August 2020
Sexual assault is a major health and welfare issue in Australia. This report draws together a range of available data sources to provide a national summary of the extent, nature and impact of sexual assault. Data are presented separately for Australians aged 15 and over.  More...

Biodata and biotechnology: opportunity and challenges for Australia
John Mattick; Australian Strategic Policy Institute: 27 August 2020
This report canvasses the extraordinary recent developments in genome sequencing and genetic engineering. There are resourcing, privacy, vulnerabilities, sensitivities and national security issues to consider, protections to be put in place, and social licenses to be obtained. Big-data analysis skills need be taught in science and engineering, and built into research institutions as well as health, agricultural and environmental management enterprises and agencies. More...

Review of the national action plan to combat human trafficking and slavery 2015–19
Samantha Lyneham, Isabella Voce; Australian Institute of Criminology: 25 August 2020
The Department of Home Affairs commissioned the Australian Institute of Criminology to undertake this review of the National Action Plan to Combat Human Trafficking and Slavery 2015–19.  More...

NSW and Commonwealth Government funding responses to the COVID-19 pandemic
IB 03/2020 August 2020
Australian governments have announced extraordinary funding measures in response to the global COVID-19 pandemic. ​The measures have aimed to boost the health system, support the economy, and assist households and vulnerable groups in the community. This issues backgrounder outlines NSW Government funding measures.  More...

Cases

Palmer v State of Western Australia (No 3) [2020] FCA 1220
The Directions prohibit entry into Western Australia of persons other than those defined as “exempt travellers”.
On 25 May 2020, the applicants, Clive Frederick Palmer and Mineralogy Pty Ltd (the Palmer parties), commenced proceedings in the High Court of Australia seeking a declaration that the Emergency Management Act and/or the Directions are invalid, in whole or in part, on the basis that they contravene s 92 of the Constitution.
 Section 92 of the Constitution provides that, “trade, commerce, and intercourse among the States...shall be absolutely free”.
PRACTICE AND PROCEDURE – issue remitted from High Court of Australia – whether intervener requires leave to withdraw – leave to withdraw not required – whether respondents would be prejudiced by withdrawal – where respondents seek rehearing of evidence – rehearing refused
Constitution s 92; Judiciary Act 1903 (Cth) ss 44 and 78A

DQF v Information and Privacy Commission [2020] NSWCATAD 209
ADMINISTRATIVE REVIEW - privacy - complaint by person aggrieved - use of personal information by public sector agency - internal review of conduct by public sector agency - review of conduct by the Tribunal - jurisdiction of Tribunal on review - orders available on review - no order made

BWY v Secretary, Department of Education [2020] NSWCATAD 208
ADMINISTRATIVE LAW — Personal information — whether used or disclosed – whether held by an agency – whether used or disclosed otherwise than in good faith

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
GOVERNMENT INFORMATION — onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — whether applicant bears a “practical onus” to establish that requested information exists and is held by the agency ADMINISTRATIVE REVIEW — whether Tribunal has power to review a decision that is not the subject of an application for administrative review made under s 100 of the Government Information (Public Access) Act — whether parties can confer jurisdiction on the Tribunal by consent PROCEDURAL FAIRNESS — apprehended bias — bias by association — whether Member’s previous association with a party’s legal representative gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — apprehended bias — bias by conduct — whether Member’s conduct in hearing gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — hearing rule — whether by permitting party to amend documents the Tribunal failed to give a party a reasonable opportunity to be heard

Price v Commissioner for Fair Trading [2020] NSWCATOD 93
ADMINISTRATIVE LAW – administrative review – licensing – whether Applicant meets requirements for Issue of builders licence - application of Instrument as policy – experience requirements not met – not unfair or unjust to apply policy 

South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183
ADMINISTRATIVE LAW – Judicial review – jurisdictional error – whether primary judge erred in holding that District Court did not have jurisdiction to make directions for compensation pursuant to s 97(1) of the Victims Rights and Compensation Act 2013 (NSW) in circumstances where defendant originally convicted in Local Court – whether District Court had jurisdiction to make a compensation order when it was not the court which convicted the offender but which “confirmed” convictions on appeal.

GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179
ADMINISTRATIVE LAW — Jurisdictional error – Application for an inquiry into conviction – Whether primary judge who refused to consider or otherwise deal further the application in accordance with s 79(3)(a) of the Crimes (Appeal and Review) Act 2001 fell into jurisdictional error – Whether material presented on the application had been considered in previous applications for an inquiry – Nature of the discretion under s 79(3)

Doueihi v State of New South Wales [2020] NSWSC 1065
CIVIL PROCEDURE - pleadings – claim for tort of misfeasance in public office – claim in respect of actions of police officers – claim against State of New South Wales on the basis of vicarious liability - whether the further amended statement of claim adequately pleads the cause of action - where plaintiff fails to identify the officers involved, invalid acts they committed or damage suffered – whether the defendant is vicariously liable - Law Reform (Vicarious Liability) Act 1983 (NSW) – pleading struck out – whether plaintiff should be permitted to re-plead – third iteration of the statement of claim but first one where plaintiff legally represented - where associated claim in trespass is unchallenged - leave given to the plaintiff to re-plead

Legislation

NSW

Regulations and other miscellaneous instruments

Building and Construction Industry Security of Payment Regulation 2020
(2020-504) — published LW 28 August 2020

Industrial Relations (General) Regulation 2020
(2020-509) — published LW 28 August 2020

Public Holidays Amendment (COVID-19 Revocations) Order (No 3) 2020
(2020-503) — published LW 26 August 2020

Justices of the Peace Regulation 2020
(2020-489) — published LW 21 August 2020

Legal Profession Uniform General Amendment (Litigation Funding Schemes) Rule 2020
(2020-490) — published LW 21 August 2020

Relationships Register Regulation 2020
(2020-494) — published LW 21 August 2020

Subordinate Legislation (Postponement of Repeal) Order (No 2) 2020
(2020-496) — published LW 21 August 2020

Bills passed by both Houses of Parliament – 28 August 2020

Casino Control Amendment (Inquiries) Bill 2020

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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