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NSW Government Bulletin

28 October 2020

#Government

Published by:

Rebecca Weakley

NSW Government Bulletin

How should integrity agencies be funded?

On 20 October 2020, the Auditor-General for New South Wales released a report examining the effectiveness of the financial arrangements and management practices in four integrity agencies, namely the Independent Commission Against Corruption, the NSW Electoral Commission, the NSW Ombudsman and the Law Enforcement Conduct Commission. The NSW Treasury and Department of Premier and Cabinet (DPC) were also included in the audit as the departments are involved in processes which lead to funding decisions for the integrity agencies, with the NSW Treasury managing the budget process determining the annual funding for the agencies and the DPC managing the access to funding as the agencies are placed within the DPC ‘cluster’.

Purpose

The report comes in response to a special request made in November last year by the Special Minister for State, Don Harwin, under section 27(B)(3)(c) of the Public Finance and Audit Act 1983 (NSW). The Audit Office of New South Wales was asked to run performance audits on the integrity agencies, which examine whether a particular body is effectively, economically and efficiently carrying out its duties in compliance with relevant laws.

In assessing the effectiveness of the financial arrangements and management practices at the four integrity agencies, the following questions were considered during the audit:

  • do funding models effectively support integrity agencies to fulfil their legislative mandate?
  • have integrity agencies assessed the requirements for fulfilling their legislative mandate?
  • are the internal budgeting processes at integrity agencies effective?
  • do integrity agencies monitor how efficiently they use their funding?

Key findings

The audit found that, currently, the method for deciding and administering the annual funding for the four integrity agencies presented a threat to their independent status.

The audit found that while the DPC and NSW Treasury funding method aligned with the legislative and constitutional framework for financial management, the method did not sufficiently recognise that the roles and functions of the four agencies are different to other departments and agencies. Specifically, an absence of transparency in decisions about funding for the agencies, the means of applying efficiency dividends, budget savings and reforms measures, the process of providing additional funding from DPC and requests for the agencies to report to DPC on their activities and outcomes were found to present a threat to the independence of the integrity agencies.

Recommendations

The report made three recommendations to the NSW Treasury and DPC:

  • a funding model for the four integrity agencies should be implemented by the NSW Treasury and DPC to address potential threats to the integrity agencies’ independence while ensuring accountability. To strengthen the financial arrangements for the four integrity agencies, the Auditor-General listed a number of principles that informed the report’s recommendations:
    • the integrity agencies should be required to demonstrate their accountability as prudent managers of their financial resources
    • Parliament’s role in the budget process should be expanded to ensure Cabinet is provided with more independent advice on the funding requirements for the integrity agencies
    • there should be transparency to Parliament and the relevant agency for decisions made about funding for the integrity agencies
    • there should be structured oversight by Parliament of the performance and financial management of the integrity agencies.
  • NSW Treasury and DPC should re-consider whether the method used to apply efficiency dividends to the four integrity agencies aligns with appropriate legislation and the independence of the integrity agencies
  • NSW Treasury and DPC should ensure that the use of cluster-based financial management arrangements does not hamper the independence of the integrity agencies and aligns with the requirements of relevant legislation. This includes ensuring that:
    • the providing of additional funding outside of the budget process aligns with legislation and contains safeguards to ensure the agencies’ independence
    • requests for the agencies to report on activities and outcomes as part of budgeting reforms align with their independence.

The report suggests that the NSW Parliament be consulted when considering the recommendations made in the report.

Authors: Christine Jones & Rebecca Weakley

In the media

Consultation extended on draft gaming machine harm minimisation laws
Consultation on the NSW Government’s proposed gaming machine harm minimisation laws has been extended to 11 December 2020 to allow more time for submissions (23 October 2020).  More...

Alarm bells over proposed new ICAC funding model
The ICAC Commissioner has warned that a NSW Auditor-General’s recommendation for Treasury and DPC to implement a new funding model for the state’s key integrity bodies could fall foul of the law. Chief Commissioner Peter Hall QC says the report correctly identifies that the current funding model doesn’t recognise the independence of the ICAC (22 October 2020).  More...

Court reforms to protect and empower domestic violence victims
Attorney General and Minister for the Prevention of Domestic Violence Mark Speakman said the reforms would allow complainants in domestic violence criminal proceedings to give evidence in closed courts or remotely via audio-visual link, while jurors will be educated on the complexities of abuse (21 October 2020).  More...

New law to help protect pets from domestic violence perpetrators
Domestic violence victim-survivors and their companion animals will have greater protections under proposed Apprehended Domestic Violence Order reforms. The Government’s Bill, to be introduced in NSW Parliament this week, will amend the Crimes (Domestic and Personal Violence) Act 2007 (18 October 2020).  More...

Joint trial presumption to deliver justice
Another significant reform in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse will be introduced into the NSW Parliament which would facilitate more joint trials, allowing multiple victims of the same perpetrator to give evidence at the one trial (14 October 2020).  More...

More court protections for 'revenge porn' victims
Victims of intimate image abuse will have the same court protections as other sexual assault complainants while judicial officers will have greater powers to order images and recordings be destroyed, under legislation to be introduced in NSW Parliament (14 October 2020).  More...

Coercive control reform
Domestic violence victim-survivors, frontline services, legal experts, law enforcement, academics and the community will soon have the opportunity to share their views on whether to criminalise coercive control in NSW (13 October 2020).  More...

An evaluation of Suspect Target Management Plan (STMP)
A new study released by the Bureau of Crime Statistics and Research shows that the New South Wales (NSW) Police Force's Suspect Target Management Plan is an effective tool for reducing crime (13 October 2020).  More...

In practice and courts

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.

Law Council update
The Law Council produces a fortnightly newsletter which highlights the Law Council's important activities and advocacy, along with any relevant media and events stakeholders would be interested in.  More...

COVID-19: Information for attending court - Friday 23 October
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments.

icare and workers' compensation independent review
The NSW Government has opened consultation to inform the Independent Review of icare, the workers compensation scheme and the five-year statutory review of the State Insurance and Care Governance Act 2015.
Feedback is sought by 30 October 2020 based on the Terms of Reference. Further information is available here.

Extension of charge certification period - practice and procedure
In response to a request from the Office of the Director of Public Prosecutions, the chief magistrate, Judge Graeme Henson AM, has extended the charge certification period from six to eight weeks, commencing 16 November 2020 until the end of the 2020 Law Term.

Reminder: 2020 Professional Standards Scheme commences
The fourth New South Wales Bar Association Professional Standards Scheme will remain in effect until 30 June 2025. You can learn more about the scheme here.

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. View the latest publication here.

Notification of NSW District Court of attendance of Victorian residents
On 15 October, the Chief Judge of the District Court of NSW advised on attendance of Victorian residents at the Court. Although residents of Victoria are required to self-isolate for 14 days upon arrival in New South Wales, a border entry permit (NSW) may exempt them from self-isolation when they are required to attend court.

Published – articles, papers, reports

Australian Bureau of Statistics
23/10/2020 Assessing admin data quality to enhance the Census, 2020 (cat no. 2300.0)
19/10/2020 Australian Statistics Advisory Council - Annual Report, 2019-20 (cat no. 1002.0)
12/10/2020 Public Consultation Census Supporter Resources, Oct 2020 (cat no. 1650.0)
The report, released this week, focussed on funding for the ICAC, the NSW electoral Commission, the NSW Ombudsman and the Law Enforcement Conduct Commission, as well as the role played by NSW Treasury and the Department of Premier and Cabinet in making funding decisions.

Policy making in a digital world
Lewis Lloyd; Institute for Government: 23 October 2020
Drawing on interviews with policy experts and digital specialists inside and outside government, the report argues that better use of data and new technologies, such as artificial intelligence, would improve policy makers’ understanding of problems like coronavirus and climate change, and aid collaboration with colleagues.  More...

Energy Security Board data strategy: Consultation paper
Energy Security Board; COAG Energy Council: 20 October 2020
The Energy Security Board is attempting to drive reforms to increase transparency across the energy sector and even the playing field between energy companies and consumers. This consultation paper outlines ways to close energy sector data gaps through improved access, protection, sharing, integration.  More...

Tech-xit: Can Australia survive without Google and Facebook?
Jordan Guiao; Centre for Responsible Technology: 19 October 2020
In the wake of threats by Google and Facebook to scale back or close services in Australia should the federal government proceed with plans to charge them for news content, this report identifies serious risks to Australian businesses, government services and consumers if services are.  More...

Australian homelessness monitor 2020
Launch Housing: 19 October 2020
The Australian Homelessness Monitor examines the changes in the scale and nature of homelessness in Australia, as well as how social, economic and policy drivers influence these changes. Recent research shows that the national homelessness rate is set to surge, as short-term coronavirus and housing.  More...

Criminalising coercive control in the context of domestic and family violence: Key sources
Lenny Roth; Parliamentary Research Service (NSW): 16 October 2020
In recent years, several countries have introduced new offences to criminalise coercive control in the context of domestic and family violence. This paper provides a brief overview and a list of key sources that discuss the issue of criminalising coercive control.  More...

Young people under youth justice supervision and in child protection 2018–19
Australian Institute of Health and Welfare: 15 October 2020
This report presents information on young people under youth justice supervision during 2018–19 who had received child protection services in the 5 years from 1 July 2014 and 30 June 2019.  More...

Coercive control: Discussion paper
Department of Communities and Justice (NSW); Government of New South Wales: 13 October 2020
The Department of Communities and Justice (NSW) has released this discussion paper on coercive and controlling behaviour in the context of domestic and family violence in NSW.  More...

Select Committee on the Aboriginal Flag: Report
Senate Select Committee on the Aboriginal Flag; Parliament of Australia: 13 October 2020
The Senate Select Committee on the Aboriginal Flag was established in September 2020 to inquire into and report on current and former copyright and licensing arrangements for the Aboriginal flag design. This report outlines the Committee's recommendations.  More...

An evaluation of the Suspect Target Management Plan
Steve Yeong; BOSCAR: 13 October 2020
Crime and Justice Bulletin No. 233
Subject Evaluation reports; Policing; Recidivism / Re-offending; Domestic violence
Both STMP-II and DV-STMP are effective in reducing crime.  More...

Cases

Fraser v Commissioner of Fire and Rescue NSW [2020] NSWIRComm 1072
PUBLIC SECTOR DISCIPLINARY APPEAL – demotion from Deputy Manager, ComSafe Training Services, Operational Support Level 3 to Senior Firefighter – settlement reached – Deed of Release – demotion altered to Assistant Equipment Management Officer role, Operational Support Level 2 – appellant initially placed in Technical Officer role, Operational Support Level 2 – whether respondent had repudiated the Deed – whether the Deed constitutes a bar to the appellant pursuing his disciplinary appeal.

Forbidden Foods Pty Ltd v Rice Marketing Board for the State of New South Wales (No 3) [2020] NSWCATAD 257
GOVERNMENT INFORMATION – access application – public interest considerations in favour of disclosure – public interest considerations against disclosure – personal factors of the application – whether overriding public interest against disclosure.

Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429
ADMINISTRATIVE LAW – judicial review of administrative decisions – review of decision of Commissioner of Police – removal order under s 181D of the Police Act 1900 (NSW) – whether s 213 of the Police Act 1900 (NSW) precluded making of removal order – whether error of law on the face of the record or jurisdictional error– no error established ADMINISTRATIVE LAW – judicial review of administrative decisions – review of decision of Industrial Relations Commission – rejection by IRC of review application in relation to removal order under s 181D of the Police Act 1900 (NSW) – review of refusal of leave to appeal from IRC decision by Full Bench – whether police officer acting in the course of his duties when engaging in the conduct that led to his removal – whether jurisdictional error by IRC or Full Bench – no jurisdictional error established.

Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112
PROSECUTION – prosecutions commenced by three Summonses against each of a corporate and an individual defendant – individual Defendant prosecuted under special executive liability provision of the Protection of the Environment Operations Act 1997 for the offending conduct of the corporate Defendant – “not guilty” pleas entered by each Defendant to each charge – Prosecutor agrees not to pursue Summons alleging Tier 1 offence by each Defendant – each Defendant then pleads guilty to the two remaining Tier 2 charges laid against that Defendant – sentencing hearing held PENALTIES – corporate Defendant to be convicted – guilty plea entered to two remaining charges – need to provide for both specific and general deterrence – indicative starting sentences of $40,000 and $90,000 – plea of guilty not entered at earliest opportunity but of more than minor utilitarian value – discount of 10 per cent on starting penalties – impact of imposition of order for payment of Prosecutor’s costs – consideration of totality and accumulation of penalties – total fine of $105,000 imposed PENALTIES – individual Defendant to be convicted – guilty plea entered to two remaining charges – need to provide for both specific and general deterrence – indicative starting sentence of $12,000 and $27,000 – discount of 10 per cent for the guilty pleas – impact of imposition of order for payment of Prosecutor’s costs – consideration of totality and accumulation of penalties – total fines of $28,000 imposed PUBLICATION ORDER – Prosecutor seeks publication order – Prosecutor proposes publication in Afloat Magazine, Daily Telegraph and the Manly Daily publications – Defendants resist the making of any publication order – appropriate to make a publication order – notice to be published ordered in Plain English terms, terms differing from those sought by the Prosecutor – appropriate to order publication of notice in Afloat Magazine, and the Manly Daily but not in the Daily Telegraph – method of specification of effecting publication in newspaper now only published online – publication order expressly created by the Protection of the Environment Operations Act 1997 as being in addition to, and not in substitution for, any element of the appropriate penalty to be imposed on each Defendant – not appropriate to reduce the penalty imposed on each Defendant as a consequence of making a publication order.

Commissioner of Police v Thomson [2020] NSWSC 1424
PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether order pursuant to s 25(1) should be made prohibiting the holding of a public assembly – balancing exercise between competing public interests CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) – notice of constitutional matter – severance of matters.

Bolstad v Psychology Council of New South Wales (No 2) [2020] NSWSC 1417
ADMINISTRATIVE LAW – natural justice – urgent need for orders to protect public – permanent orders affect burden of proof – need to preserve right of plaintiff to prepare and present material while still protecting the public.

Bolstad v Psychology Council of New South Wales [2020] NSWSC 1416
ADMINISTRATIVE LAW – natural justice – urgent need for orders to protect public – permanent orders affect burden of proof – need to preserve right of plaintiff to prepare and present material while still protecting the public.

Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211
APPEAL – administrative law – freedom of information STATUTORY INTERPRETATION – Government Information (Public Access) Act 2009 (NSW) meaning of s 4 (definition of ‘government information’) – meaning of 75(1), meaning of s 112, meaning of s 53(1)

Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education (No 2) [2020] NSWCATAD 249
ADMINISTRATIVE LAW- Education and Care Services National Law – review of decision to cancel provider approval - Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold the decision or substitute decision. 

Public Service Association of NSW v Insurance and Care NSW [2020] NSWCATAD 228
ADMINISTRATIVE LAW – public access to government information – whether prejudice to the supply of confidential information – Whether prejudice to the effective exercise of an agency’s functions – whether disclosure would reveal a deliberation, consultation, opinion or advice – whether prejudice an investigation – Personal information – balancing public interest considerations

Legislation

Proclamations commencing Acts
Police Amendment (Promotions) Act 2020 No 23 (2020-609) — published LW 14 October 2020

Regulations and other miscellaneous instruments
Electronic Transactions (ECM Courts) Amendment (NCAT) Order 2020 (2020-622) — published LW 22 October 2020
Local Government (General) Amendment (Minimum Rates) Regulation 2020 (2020-624) — published LW 23 October 2020
Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 (2020-633) — published LW 23 October 2020
Administrative Arrangements (Administration of Acts—Amendment No 6) Order 2020 (2020-614) — published LW 16 October 2020
Administrative Arrangements (Administrative Changes—Transfer of Staff to Western City and Aerotropolis Authority Staff Agency) Order 2020 (2020-613) — published LW 16 October 2020
Liquor Amendment (COVID-19 and Managed Alcohol Program) Regulation 2020 (2020-610) — published LW 14 October 2020

Non-Government – 16 October
Local Government Amendment (Pecuniary Interests Disclosures) Bill 2020

Bills revised following amendment in Committee – 16 October
Statute Law (Miscellaneous Provisions) Bill 2020

Bills introduced – 23 October

Government
Drug Supply Prohibition Order Pilot Scheme Bill 2020
Retirement Villages Amendment Bill 2020

Non-Government
NSW Jobs First Bill 2020

Bills passed by both Houses of Parliament – 23 October
Statute Law (Miscellaneous Provisions) Bill 2020
Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020
Amendments relating to criminal and sentencing procedures
Work Health and Safety Amendment (Information Exchange) Bill 2020

For the full text of Bills, and details on the passage of Bills, see Bills.

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.

Published by:

Rebecca Weakley

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