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NSW Government Bulletin

23 January 2019

#Government

NSW Government Bulletin

Our fortnightly NSW Government Bulletin will resume in full in February but until then, we invite you to enjoy our special summer edition of the bulletin. 

Our authors have wrapped up the latest issues and reforms in key areas affecting government, looking at the topics:

  • a monumental year in data and privacy
  • the online court
  • public sector data, the Data Sharing and Release Act and implications for governments
  • new national modern slavery laws and legal challenge for government tenders
  • planning and environment year in review.

Click here to read the summer edition of the Government Bulletin.

Our authors will also be presenting at our upcoming NSW Government Lawyers day on Friday 22 February 2019. You can view the program and find further information about the day by clicking here.

In the media

ICAC finds DFSI ICT project manager corrupt after “hijacking” business name to obtain half-million dollar benefit
The ICAC has found that former Department of Finance, Services and Innovation (DFSI) project manager Steven Prestage engaged in serious corrupt conduct through an elaborate scheme he concocted involving “hijacking” the name of his friend’s company to help deceive the department into making over $500,000 in payments that were ultimately used to dishonestly benefit himself (16 January 2019).  More...

Dutton's citizenship-stripping plan attacked by Australian Human Rights Commission
The Australian Human Rights Commission has warned Peter Dutton’s proposal to lower the bar for stripping people convicted of terrorism or related offences of Australian citizenship could render people stateless and would be retrospective in application – in possible violation of international law or the rule of law (15 January 2019).  More...

Australian democracy strengthened as foreign donations banned
The Morrison Government’s new political donation laws that ban foreign interference in Australian elections are now in place. The new laws mandate that political campaigning targeting Australians cannot be paid for by foreign donors, including election advertising, campaign phone calls and how-to-vote cards (14 January 2019).  More...

Government's $444m grant to reef body did not comply with transparency rules, Audit Office says
The auditor-general criticises the Environment Department's assessment of whether a funding allocation worth nearly half a billion dollars was good value for money (16 January 2019).  More... 

My Health Record system data breaches rise
The number of data breaches involving My Health Record has risen year-on-year, from 35 incidents in the last financial year to 42 incidents this year, a report by the Australian Digital Health Agency (ADHA) has shown (10 January 2019).  More...

Cautious approach for sex offender register required, says Law Council
While the Law Council of Australia does not object in principle to the establishment of a National Public Register of Child Sex Offenders, it believes only offenders who pose a demonstrated risk to children should be required to register.  He also stated inclusion on such a register should never be automatic (9 January 2019).  More...

Free online pathways to solve legal problems
The LawAccess NSW website now provides two interactive guided pathways to match people with the information they need to resolve their issues before they spiral out of control, with another four pathways on other topics to come in 2019 (9 January 2019).  More...

‘High risk’ persons may be left stateless with current laws, Law Council says
The nation’s top legal body wants Australia’s government to be more discerning about the stripping of citizenship as current laws creates a high risk that some people may be left stateless. Click here to read the Law Council of Australia’s statement regarding Neil Prakash’s citizenship status. (5 January 2019).  More...

New tenancy laws help domestic violence victims living in New South Wales rentals
Long-awaited, and some of the most significant changes to NSW tenancy laws are set to strengthen the protection for domestic violence victims living in rented properties around the state (7 January 2019).  More...

A clearer path for child abuse survivors to sue in New South Wales
A child abuse survivor will be able to sue an unincorporated organisation, which can nominate a proper defendant with sufficient assets to meet the claim. If it fails to do so, the court can appoint associated trustees to be sued who can access trust property to pay the compensation (1 January 2019).  More...

Police access to health records raises privacy concerns
Thousands of records containing sensitive information such as HIV-status, past abortions and mental health issues are being requested by the police every year – and doctors and privacy experts are deeply concerned about it (21 December 2018).  More...

Global hack of managed service providers
The Office of the Australian Information Commissioner (OAIC) advises managed service providers which may be affected by a global cyber security hack to take steps to ensure Australians’ personal information is being safeguarded (21 December 2018).  More...

In practice and courts

AEC: Funding, disclosure and political parties
Some changes have been made to election funding and disclosure laws in the Commonwealth Electoral Act 1918 (Electoral Act) as a result of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (the FAD Reform Act). From 1 January 2019 the Electoral Act restricts the receipt of donations from foreign donors (14 January 2019).  More...

Consultation opens on Public Interest Determination
An application from the Australian Federal Police (AFP) for a Public Interest Determination is now open for public comment. The application to the OAIC under s 72 of the Privacy Act would allow the AFP to disclose limited personal information about homicide offenders and suspects to the Australian Institute of Criminology without breaching Australian Privacy Principle 6. It is intended to replace a previous determination which expired on 1 October 2018. More information is available on the OAIC website, with submissions due by 1 February 2019.

High Court Rules: Amendments to Second Schedule
The Court has agreed to the recommendation of the Committee for an increase of 2.1% to the solicitors’ costs, which came into operation on 1 January 2019 and will apply in respect of all work done and services performed by solicitors after 31 December 2018.  More... 

AAT Bulletins 2019
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions.
Issue No. 2/2019 - 14 January 2019
Issue No. 1/2019 - 7 January 2019

Current consultations
Review of the Telecommunication and Other Legislation Amendment (Assistance and Access) Act 2018, the Parliamentary Joint Committee on Intelligence and Security.
This review is in addition to two separate statutory reviews, amendments to include a review due to  commence by April 2019.

Draft Privacy Impact Assessment – Consumer Data Right, The Treasury.
This consultation process has now been completed.
21 December 2018 - 18 January 2019

Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, Parliamentary Senate Standing Committees on Legal and Constitutional Affairs.
The deadline for submissions to the inquiry was 21 January 2019.

The Establishment of a Commonwealth Integrity Commission, Attorney-General’s Department.
Submissions close on 1 February 2019.

Uniform Civil Procedure Rules 2005 – Rule 7.4 Amendment
The Uniform Civil Procedure (Amendment No 88) Rule 2018 has inserted Rule 7.4 into the Uniform Civil Procedure Rules 2005. The rule makes provision for an unincorporated organisation to appoint an entity to act as the proper defendant in proceedings for a civil claim arising from abuse against a child. The rule commenced on 1 January 2019 when Division 4 of Part 1B of the Civil Liability Act 2002 commenced. UCPR form 162 – Consent to act as proper defendant is available here.

NCAT to redetermine 'consumer guarantee directions'
Changes to the Fair Trading Act 1987 give NCAT the power to redetermine 'consumer guarantee directions' issued by NSW Fair Trading. If the consumer or business is unhappy with the consumer guarantee direction, they can apply to NCAT for a redetermination. Visit the NSW Fair Trading website to learn more about consumer guarantee directions (10 January 2019).  More...

IPC: 2018-19 Report on the Operation of the GIPA Act
Under the Government Information (Public Access) Act 2009 (GIPA Act) and the GIPA Regulation, agencies are required to report annually on their obligations. The IPC has been receiving these reports and collating data in recent months. The 2018-19 annual report is currently being prepared and is due to be tabled in Parliament in February 2019.

Prosecution outcomes and briefs with the DPP
Tables showing information about ICAC-related prosecution outcomes, and briefs with the DPP (18 January 2019).  More...

ICAC: Operation Dasha public inquiry adjourned to 29 January 2019
The Operation Dasha public inquiry into allegations concerning the former Canterbury City Council is adjourned to Tuesday 29 January 2019.  More...

Identity crime and misuse in Australia: Results of the 2017 online survey
This report presents findings of the latest survey of identity crime and misuse undertaken by the Australian Institute of Criminology as part of the Australian Government’s National Identity Security Strategy (28 December 2018).  More...

Estimating the cost to Australian businesses of identity crime and misuse
This study examined the economic scale of the problem of identity crime and misuse targeting businesses in Australia and provides estimates of the direct and indirect costs borne by affected businesses.  More...

Award of a $443.3 million grant to the Great Barrier Reef Foundation
The objective of the audit was to assess whether the award of a $443.3 million grant to the Great Barrier Reef Foundation was informed by appropriate departmental advice and a thorough processes that complied with the grants administration framework.  More...

Cases

CME v University of Technology Sydney [2019] NSWCATAP 3
ADMINISTRATIVE REVIEW – Appeal from decision dismissing an application under the Privacy and Personal information Protection Act 1998 (NSW) for want of jurisdiction – where Tribunal dismissed application for review of conduct by University of Technology Sydney in publishing a decision of the Victorian Civil and Administrative Tribunal to which she was a party – whether the Tribunal erred in law by dismissing the application.
STATUTORY INTERPRETATION – Meaning of s 6 of the Privacy and Personal Information Protection Act 1998 (NSW). 

Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6
ADMINISTRATIVE LAW – Administrative review - government information – cabinet information – whether document would reveal or tend to reveal cabinet deliberations or decisions – some information in public domain – the document not the information must have been approved for release.
ADMINISTRATIVE LAW – Administrative review - government information – cabinet information – document that reveal or tends to reveal the position Minister is considering taking to Cabinet – no requirement that position actually taken to Cabinet - meaning of “the position” – not confined to “one” position.
ADMINISTRATIVE LAW – Administrative review - government information – legal professional privilege – privilege claimed by Department which was not Department to which legal advice or services provided – provision of advice etc is to the State not the individual administrative Department – sharing of legal advice between Department – question of waiver does not arise.
ADMINISTRATIVE LAW – Administrative review - government information – public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to found an action for breach of confidence – no requirement that entity likely to commence such an action – whether information has “competitive commercial value”.  

DRF v Commissioner of Police, NSW Police Force [2019] NSWCATAD 5
ADMINISTRATIVE LAW – Government information – public interest considerations against disclosure – prejudice to supply of confidential information – prejudice to effective exercise of policing functions – prejudice to detection, prevention or investigation of contraventions of the law – public interest in favour of disclosure where disclosure may show improper or illegal conduct - proactive policing - public interest in favour of disclosure of a person’s personal information – public interest in favour of informing the public about proactive policing.  

CEU v University of Technology Sydney; University of Technology Sydney v CEU [2019] NSWCATAD 11
PRACTICE AND PROCEDURE – Guardian ad litem appointed for applicant – withdrawal of applications – dismissal of proceedings – restraint order.
Anti-Discrimination Act 1977; Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998. 

Pollington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 1
ADMINISTRATIVE  LAW – Government information – access application – redaction of information concerning testing methodology – personal information - whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure. 

Scenic NSW Pty Ltd v Office of Environment & Heritage [2019] NSWCATAD 7
ADMINISTRATIVE LAW – Government information – decision to defer access after granting access – power to decide to defer access – rights of internal review – sections 80(h), 78,88, 54(6) and (7) Government Information (Public Access) Act 2009. 

Legislation

Commonwealth

Referendum (Machinery Provisions) Act 1984
16/01/2019 - Act No. 44 of 1984 

Copyright Act 1968
16/01/2019 - Act No 63 of 1968  

Australian Human Rights Commission Act 1986
14/01/2019 - Act No. 125 of 1986 

Independent National Security Legislation Monitor Act 2010
11/01/2019 - Act No. 32 of 2010 as amended 

Public Interest Disclosure Act 2013
11/01/2019 - Act No. 133 of 2013 as amended 

Privacy Act 1988
11/01/2019 - Act No. 119 of 1988 as amended 

Age Discrimination Act 2004
10/01/2019 - Act No. 68 of 2004 

Ombudsman Act 1976
08/01/2019 - Act No. 181 of 1976 

Freedom of Information Act 1982
07/01/2019 -Act No. 3 of 1982 as amended 

Copyright Act 1968
07/10/2019 -Act No. 63 of 1968 as amended  

Telecommunications (Interception and Access) Act 1979
07/01/2019 - Act No. 114 of 1979 as amended 

Regulation

Australian Citizenship (LIN 19/066: Persons Who May Receive a Pledge of Commitment) Instrument 2019
17/01/2019 - The instrument revokes the Citizenship (Authorisation) Revocation and Authorisation Instrument 2017 and operates to authorise persons and the different class of persons able to receive the pledge of commitment of Australian citizenship. 

Disability Services (Principles and Objectives) Instrument 2018
10/01/2019 - This instrument formulates principles and objectives to be furthered and guidelines to be complied with in the administration of the Disability Services Act 1986.  

New South Wales

Regulations and other miscellaneous instruments
Electoral Amendment Regulation 2019 (2019-4) — published LW 18 January 2019
Electoral Funding Amendment (Administration Fund Payments) Regulation 2019 (2019-5) — published LW 18 January 2019
Legal Profession Uniform Conduct (Barristers) Amendment (Refusal of Briefs) Rule 2018 (2019-6) — published LW 18 January 2019
Liquor Amendment (Special Events Extended Trading) Regulation 2019 (2019-7) — published LW 18 January 2019
For the full text of Bills, and details on the passage of Bills, see here.

NSW Government Bulletin editor:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Other contacts:
Dispute Resolution, Inquiries and Administrative Law
Greg Wrobel, Partner 
T: +61 2 8083 0411 
E: greg.wrobel@holdingredlich.com

Bede Haines, Partner 
T: +61 2 8083 0447 
E: bede.haines@holdingredlich.com

Workplace Relations & Safety
Michael Selinger, Partner 
T: +61 2 8083 0430 
E: michael.selinger@holdingredlich.com

Privacy & Data Protection
Lyn Nicholson, General Counsel 
T: +61 2 8083 0463 
E: lyn.nicholson@holdingredlich.com

Planning, Property & Environment
Robina Kidd, Partner 
T: +61 2 8083 0454 
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner 
T: +61 2 8083 0462 
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner 
T: +61 2 8083 0461 
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Lindsay McGregor, Partner
T: +61 2 8083 0459 
E: Lindsay.McGregor@holdingredlich.com

Alexander McNutt, Special Counsel 
T: +61 2 8083 0495 
E: Alexander.McNutt@holdingredlich.com

Peter Holt, Special Counsel 
T: +61 2 8083 0421 
E: peter.holt@holdingredlich.com

Construction and Infrastructure (Projects and Procurement)
Scott Alden, Partner 
T: +61 2 8083 0419 
E: scott.alden@holdingredlich.com

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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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