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NSW Government Bulletin

26 May 2021

#Government, #Data & Privacy

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NSW Government Bulletin

NSW Government’s new cyber security strategy

Last week, the NSW Government announced its new 2021 NSW Cyber Security Strategy which replaces the NSW Cyber Security Industry Development Strategy 2018.

The 2021 strategy has a vision for NSW to become a world leader in cyber security. NSW aims to deploy cyber security to defend and protect the economy and underpin its growth. It is intended that NSW agencies lead by example in adopting and exceeding best practice in cyber security.

The vision is underpinned by a range of programs and initiative which aim to:

  • improve the NSW Government’s cyber resiliency
  • help NSW businesses grow
  • enhance cyber security skills and workforce
  • support cyber security research and innovation.

The above is consistent with the broad scope of the initiative announced in releases by both The Hon. Victor Dominello MP, Minister for Customer Service, and The Hon. Stuart Ayres MP, Minister for Jobs, Investment, Tourism and Western Sydney. 

More details about the strategy and initiatives can be found here.

Author: Lyn Nicholson

In the media

NSW to establish cyber hub under new strategy
New South Wales government agencies have been instructed to lead by example in best practice and cyber resilience under the state’s new sector-wide cyber security strategy. The strategy, launched on Thursday, noted that agencies have an opportunity to adopt and exceed best practice in cyber security. View the strategy here (20 May 2021).  More...

Camellia land deal: Auditor-general can’t rule out corruption
An audit into Transport for New South Wales’ purchase of contaminated land at Camellia has highlighted poor probity practices, corruption risks and questionable decision-making within the agency (19 May 2021).  More...

Four new magistrates join the Local Court
Four new magistrates will bring 80 years of legal experience to the Local Court of NSW. The Local Court is the engine room of the NSW justice system, dealing with 96 per cent of all criminal prosecutions and more than 90 per cent of civil cases (19 May 2021).  More...

HRLC: Dozens of submissions made public after AGs refuse to act on raising the age of criminal responsibility
In an unusual move, 48 organisations have publicly released their submissions to the Council of Attorneys-General working group on raising the minimum age of criminal responsibility in Australia from 10 years old (19 May 2021).  More...

Governments paying too much for infrastructure
Australian governments are paying too much for major infrastructure contracts because of a lack of competition and undue haste in pushing projects through, a report says. Transport projects are very politicised and goverments put a lot of emphasis on getting them started in their term of government so they can claim it as their own (17 May 2021).  More...

COVID-19 pandemic highlights urgent need for Australian human rights charter
The COVID-19 pandemic has highlighted the need for an Australian charter of human rights to protect all citizens from the impact of arbitrary and unfair government decisions, says the Australian Lawyers Alliance (17 May 2021).  More...

ACCC saves art gallery from tender scam
The Australian Competition and Consumer Commission has instituted civil proceedings in the Federal Court over an alleged attempted cartel for a National Gallery of Australia tender (17 May 2021).  More...

Call on Government to implement PJCIS recommendations
Implementing the 24 recommendations of the Parliamentary Joint Committee on Intelligence and Security advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, would be appropriate according to the Law Council of Australia (14 May 2021).  More...

The Courts to receive $100 million in government funding announced in the 2021–22 budget
The Family Court of Australia (FCoA) and Federal Circuit Court of Australia (FCC) welcome significant funding as part of the 2021–22 budget, together with other recent funding, which allows for the appointment of two additional FCoA judges, and eight additional FCC judges. It also provides for important judicial support and reform measures (12 May 2021).  More...

OAIC welcomes additional funding for data protection and FOI
The OAIC welcomes additional funding for privacy and access to information functions announced in the 2021–22 Federal Budget (12 May 2021).  More...

ICAC finds Service NSW officer corrupt over improper access of restricted database information and other conduct
The ICAC has found Service NSW customer service officer Diana Benyamin engaged in serious corrupt conduct by agreeing to alter records held by the agency in exchange for a benefit (11 May 2021).  More...

ICAC hears RMS kickbacks included Ferraris, school fees
Two RMS officers received substantial kickbacks in exchange for awarding contracts to mates, the ICAC has heard. The NSW ICAC has opened hearings into evidence of an extensive kickback scheme that allegedly netted two former RMS officers cash and benefits worth almost $7 million (10 May 2021).  More...

In practice and courts

Attorney General Appointments – 13 May 2021
Reappointment of Commonwealth Director of Public Prosecutions
The reappointment of Ms Sarah McNaughton SC as Commonwealth Director of Public Prosecutions for a period of two years.
Appointment to the Family Court of Australia
Judge Terrence McGuire has been appointed as a judge of the Family Court of Australia.
Reappointments to the Administrative Appeals Tribunal
Thirteen reappointments to the Administrative Appeals Tribunal.
Appointments to the Federal Circuit Court of Australia
Ms Sandra Taglieri SC and Mr Marcus Turnbull SC have been appointed as judges of the Federal Circuit Court of Australia.

Commonwealth Parliamentary Review now open for submissions and interviews: Sex discrimination
20 May 2021 – the AHRC will commence inviting contributions for its independent review into Commonwealth Parliamentary workplaces, accepting written contributions from groups covered by the Review’s Terms of Reference. The Review's aim is to ensure all Commonwealth Parliamentary workplaces are safe and respectful and that our national Parliament reflects best practice in the prevention and handling of bullying, sexual harassment and sexual assault. Make a written submission here.

Attorney General consultations

National Register of Enduring Powers of Attorney
Closing date 30 June 2021. Attorneys-General from each Australian jurisdiction have agreed to consult on possible arrangements for a National Register of Enduring Powers of Attorney. We have prepared a consultation paper to seek your views here.

Law Council of Australia submissions
19 May 2021 – Law Council. Changes to enforcement powers in the Electronic Conveyancing National Law.
10 May 2021 – Law Council. ParentsNext: Examination of Social Security (Parenting payment participation requirements – class of persons) instrument 2021.
10 May 2021 – Law Council. Establishment of an Accreditation Scheme for Children’s Contact Services.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Read Issue No. 10/2021, 17 May 2021 here.

AHRC: Independent review into Commonwealth Parliamentary workplaces
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.

OAIC Consultations

National Health (Privacy) Rules 2018 review
The closing date for submissions is 4 June 2021. Read more here.

Consultation on data-matching program guidelines
In May 2021, a public consultation process on the Data-Matching Program (Assistance and Tax) Guidelines 1994 (the Guidelines) to ensure they are fit for purpose. The current Guidelines sunset on 1 October 2021. The closing date for comments closed on 19 May 2021. Read more here.

ALRC judicial impartiality consultation paper 2021
The inquiry would look at judges in the High Court, Federal Court, Family Court and Federal Circuit Court. Submissions are open until 30 June. The ALRC was expected to deliver its report to the Attorney-General by 30 September. The paper can be accessed here.

Regulator performance guide for consultation
The guide will empower regulators to demonstrate and report on best practice performance that is in line with the Government’s expectations and supports investment and growth. Click here to read more.

ANAO Consultations

Due to table: May 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.

Finance and Public Administration Legislation Committee
Operation and management of the Department of Parliamentary Services
On 11 May 2021, the reporting date was extended to 30 June 2021.

Legal and Constitutional Affairs Legislation Committee
Judges’ Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020
On 18 March 2021, the Senate granted an extension of time for reporting until 20 May 2021.
New Family Law Amendment (Federal Family Violence Orders) Bill 2021 [Provisions]

NSW

IPC NSW: Recap: Privacy Awareness Week NSW 2021
This Privacy Awareness Week NSW 2021, the IPC released various new resources for citizens and public sector agencies. The resources can be downloaded from the Privacy Awareness Week NSW 2021 webpage. Read more here.

Have your say on NSW privacy laws
Attorney General Mark Speakman and Minister for Digital and Minister for Customer Service Victor Dominello have marked Privacy Awareness Week by releasing for public consultation a draft of the Privacy and Personal Information Protection Amendment Bill 2021 which creates the scheme. Public submissions can now be made until, 18 June here.

Consultation: Privacy and Personal Information Protection Amendment Bill 2021 [draft]
If passed, this Bill will introduce a scheme that will ensure greater openness and accountability in relation to the handling of personal information held by NSW public sector agencies. Public submissions can now be made until, 18 June on the Have Your Say website. Click here to learn more.

Latest edition of the Court of Appeal’s Decisions of Interest bulletin
The Decisions of Interest bulletin is a regular publication produced by the Court of Appeal, summarising appellate decisions from Australia and internationally. Read the latest bulletin here.

Artificial Intelligence (AI)
The NSW Government believes that the NSW Government can use AI to benefit the community and is taking actions to ensure that AI is used safely, ethically and effectively. We have an AI Strategy that outlines our vision for the use of AI, and ensures transparency, fairness and accountability. Have your say until 31 December 2021 by clicking here.

ICAC Investigation reports
11 May 2021 – investigation into the conduct of a Service NSW officer (Operation Mistal)

NCAT digitisation of warrants for possession
From Monday 24 May 2021, all warrants for possession issued by NCAT will be electronically transmitted to the Office of the Sheriff. The new process is part of NCAT's strategy to increase digitisation of its services. Read more here.

Published – articles, papers, reports

Advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020
Parliamentary Joint Committee on Intelligence and Security: May 2021. Among the committee’s key recommendations are the creation of a list of conditions to apply to any international agreement that Australia enters into to share intelligence data with overseas powers. View the report by the parliamentary joint committee on intelligence and security (PJCIS).

Defence’s implementation of cultural reform
ANAO Auditor-General Report No. 38 of 2020–21: 20 May 2021. The objective of the audit was to assess the effectiveness to date of the Department of Defence’s implementation of its Pathway to Change – Evolving Defence Culture 2017–2022 cultural reform strategy. Read more here.

The factsheet – how to deliver an effective apology
Ombudsman: May 2021. The Ombudsman’s Office advised entities to avoid apologies that were inaccurate; misguided; generalised; avoidant; conditional; or partial. Click here to learn more.

Helping telco consumers sign up to the right phone and internet products
TIO Systemic investigation report: May 2021. In each of the five investigations explored in the Report, the telcos improved their selling practices, which included updating advertising and increasing training for sales staff. The findings of this investigation show consumers do not always understand what they are buying and this leads to problems. The Ombudsman provided five tips for phone and internet consumers. The Ombudsman’s Report can be accessed here.

It’s time for the government to walk the talk on media freedom in Australia
Johan Lidberg, Associate Professor, School of Media, Monash University: The Conversation. 21 May 2021. When the Australian Federal Police raided journalists and media organisations two years ago, it showed the balance between national security and journalism is severely out of whack in Australia. To address this, a Senate inquiry into press freedom was launched. Its report, released this week, made 17 recommendations – many of which go much further than previous inquiries into media freedom. Click here to read more.

Assessing credibility in the virtual court room
Daniel Tynan; Bar News Autumn 2021. This growing body of research shows that while most people think they are good at detecting deceit they are not. It also raises a question about how well we perform the task of determining whether someone is lying in a profession that assumes that seeing and hearing a witness in person is crucial to fair judicial decision making. Read more here.

NSW Custody Statistics: Quarterly update March 2021
BOSCAR: 13 May 2021. Click here to read the update.

Cases

Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45
SENTENCING – s 64 Protection of the Environment Operations Act 1997 – objective seriousness – strict liability offence – offence caused by actions of contractor – adequate practical measures taken by defendant – limited subjective factors – additional penalties – publication order not appropriate.

Tisdale v Cumberland City Council [2021] NSWCATAD 132
ADMINISTRATIVE LAW – government information – access application – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure – whether risk of harm or serious harassment or serious intimidation if disclosed – whether reasonable searches undertaken – legal privilege – conclusive presumption against disclosure.

Cincotta v Council of the City of Ryde [2021] NSWCATAD 131
ADMINISTRATIVE LAW – public access to government information – request for information concerning complaints against the applicant – third party consultation concerning other personal information – balancing public interest considerations.

Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83
CIVIL LAW – judicial review – jurisdictional error – whether District Court erred in failing to state a case to the Court of Criminal Appeal – power of judge to decline to state a question of law – tension in authorities – unnecessary to resolve conflict in authorities – where nine of ten questions raised were not relevant questions of law – whether questions frivolous or baseless – where remaining question raised a material question of law concerning admissibility of probative evidence – jurisdictional error established.
CRIMINAL LAW – evidence – exculpatory statement by accused to community corrections officer immediately after alleged assault – where statement recorded in departmental record – whether hearsay – whether business record – where Magistrate excluded evidence as “self-serving” – where District Court refused leave to introduce evidence on appeal – whether admissibility of record raised a question of law alone.

R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan; R v Jacobs Group (Australia) Pty Ltd [2021] NSWSC 534
CRIMINAL PROCEDURE – application for suppression and non-publication orders – grounds – whether the order is necessary to prevent prejudice to the proper administration of justice – administration of justice includes the public interest in open justice and the right of an accused person to a fair trial by an impartial jury – whether accused person is prejudiced by being identified in publicity relating to the plea of the company or the statement of agreed facts signed by the company and the crown for the sentence proceedings of the company.
CRIMINAL LAW – attribution by company of its acts and intention to individuals who are co-accused – prejudicial effect on individuals if company’s plea is published – particular prejudice arising from statement of agreed facts between the company and the crown on co-accused referred to in statement.

Paulo v Commissioner of Police [2021] NSWSC 517
APPEALS – leave to appeal – from Local Court – from committal proceedings – where parties in agreement that magistrate erred in setting aside subpoena – where documents have been produced to applicant – where no practical utility in granting relief – whether need to correct manifest error – where not clear that subpoena had legitimate forensic purpose in context of committal proceedings – where not clear whether Supreme Court able to grant relief sought – leave refused.
STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(a) – whether setting aside subpoena within the meaning of “order” – meaning of “any person” – meaning of “against” – meaning of “in relation to the person” – use of extrinsic materials – explanatory note and second reading speech.
CRIMINAL PROCEDURE – committal proceedings – whether legitimate forensic purpose in issuing subpoena in committal proceedings under new legislative scheme where no facility for defendant to adduce evidence.
APPEALS – leave to appeal – remedies – Scope of Crimes (Appeal and Review) Act 2001 (NSW), s 55(3)(a) – whether orders for production to Supreme Court available.
APPEALS – leave to appeal – remedies – alternative relief sought – certiorari refused for discretionary reasons mirroring reasons for refusing leave to appeal – declaration refused on basis that such relief would be an advisory opinion.
APPEALS – procedure – time limits – extension of time – where not opposed – extension granted.

Gautam v Health Care Complaints Commission [2021] NSWCA 85
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner – adequacy of reasons.
EVIDENCE – standard of proof – civil cases – application of principles in Briginshaw v Briginshaw.
APPEALS – leave to appeal – on factual findings – whether appropriate to depart from a demeanour-based credit finding.

Legislation

Commonwealth

Biosecurity Amendment (No Crime to Return Home) Bill 2021
13/05/2021 – the Bill amends the Biosecurity Act 2015 to prohibit the Minister for Health from determining requirements under section 477, or giving directions under section 478 of the Act, during a human biosecurity emergency that prevent Australians from returning to Australia. A failure to comply with such a direction can also result in a fine or imprisonment for up to five years under section 479. 

Mutual Recognition Amendment Bill 2021
HR 12/05/2021. Message from Senate reported. To introduce a uniform scheme of automatic mutual recognition (AMR) by enabling an individual who is registered for an occupation in their home state to carry on those activities in other states and territories; enable a state minister to exempt a registration in their state from being subject to AMR for a renewable period of up to five years because of a significant risk to consumer protection, the environment, animal welfare or the health or safety of workers or the public; and enable a state minister to exempt a registration in their state for a temporary period.

Regulations

Inspector-General of the Australian Defence Force Amendment Regulations 2021
18/05/2021 – this instrument amends the Inspector-General of the Australian Defence Force Regulation 2016 to expressly allow the Inspector-General of the Australian Defence Force to disclose information relating to the conduct of an inquiry (including the report about an inquiry) to law enforcement agencies and other agencies such as regulatory bodies and State and Territory courts including coroners’ offices.

Marriage (Celebrant Fees) Determination 2021
14/05/2021 – this determination sets out the fees to be charged for applicants to be registered as a marriage celebrant and for exemptions from relevant requirements and repeals the Marriage (Celebrant Fees) Determination 2014.

Fair Work and Other Legislation Amendment Regulations 2021
14/05/2021 – this instrument amends the Fair Work Regulations 2009 and the Federal Court and Federal Circuit Court Regulation 2012 and specifies the ways in which the Casual Employment Information Statement may be delivered to employees and a manner in which applicants may indicate that they want the small claims dispute resolution process to apply to a casual conversion dispute, and sets the applicable filing fee in the Federal Circuit Court of Australia for such disputes.

Marriage (Celebrant Registration Charge) Determination 2021
14/05/2021 – this determination sets the amount of the annual celebrant registration charge payable by Commonwealth-registered marriage celebrants at $170 from 1 July 2021 and repeals the Marriage (Celebrant Registration Charge) Determination 2020.

NSW

Proclamations commencing Acts
Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 No 31 (2021–230) – published LW 21 May 2021 – the object of this Proclamation is to commence amendments to the Criminal Procedure Act 1986 that extend case management provisions under the Act so that they apply to District Court prosecutions under the Work Health and Safety Act 2011.

Regulations and other miscellaneous instruments
Criminal Procedure Amendment (Transitional) Regulation 2021 (2021–233) – published LW 21 May 2021.
Passenger Transport (Opal and Other Fares) Amendment (On-Demand Fares) Order 2021 (2021–229) – published LW 17 May 2021.
Rail Safety National Law National Regulations (Modification of FOI Act) Variation Regulations 2021 (2021–235) – published LW 21 May 2021.

Bills introduced – Government – 14 May 2021
Law Enforcement Conduct Commission Amendment (Commissioners) Bill 2021
An Act to amend the Law Enforcement Conduct Commission Act 2016 to remove the office of the Commissioner for Oversight and to rename the office of the Commissioner for Integrity as the Commissioner.

Non-Government – 14 May 2021
Greyhound Racing Amendment (Whole-of-life Tracking) Bill 2021

Bills revised following amendment in Committee – 14 May 2021
Statute Law (Miscellaneous Provisions) 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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