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NSW Government Bulletin

04 August 2020

#Government, #COVID-19

Published by:

Krishneel Kumar

NSW Government Bulletin

NSW ICAC “Managing corrupt conduct during the COVID-19 outbreak” guidance note

In April 2020, the NSW Independent Commission Against Corruption (NSW ICAC) issued a “Managing corrupt conduct during the COVID-19 outbreak” guidance note (Guidance Note) to highlight:

  • the fraud and corruption risks that are relevant to government agencies in light of the COVID-19 pandemic
  • measures that may assist to protect against these risks.

While the Guidance Note is aimed at government agencies, its recommendations are also relevant to businesses and other organisations.

These risks and measures are set out below.

1. Risks associated with working from home

The Guidance Note highlights that agencies have been required to adopt more remote ways of working and a greater chance that supervisors with oversight responsibilities might need to be absent for family or health reasons.

To protect against these risks, the Guidance Note recommends:

  • ensuring that managers keep in regular contact with staff
  • asking staff not to use home printers to print confidential documents, nor allow family members to access the employer’s hardware and systems
  • reminding staff not to use social media to post photographs of their home work station
  • making a record of equipment (including IT equipment) that staff have borrowed to use at home
  • establishing protocols for using electronic signature, especially if staff are used to signing paper forms.

2. Risks associated with procurement and purchasing

NSW ICAC anticipates that the COVID-19 pandemic has placed increased pressure on agencies to, among other things, engage in emergency procurement, agree to contract variations and rely on staff to purchase items using agency-issued credit cards. NSW ICAC considers that this creates a risk that funds could be diverted to corrupt or otherwise improper purposes.

To protect against these risks, the Guidance Note recommends:

  • ensuring that at least two people are involved in any emergency procurement
  • consulting the NSW ICAC’s published guidance on managing direct negotiations
  • requiring staff to document all procurement decisions in writing
  • being prepared to agree to appropriate force majeure provisions in contracts where required (as not doing so might compel suppliers to engage in dishonest conduct to meet impossible deadlines).

3. Risks associated with cyber fraud and online hoaxes

The Guidance Note highlights that there has been an increase in COVID-19 related cyber fraud.  Many cyber frauds involve impersonating management or IT department staff.

To protect against these risks, the Guidance Note recommends:

  • adhering to the NSW Cyber Security Policy
  • verifying any requests to change a supplier’s or employee’s bank account number
  • being wary of adding new suppliers to the vendor master file, especially if they are not already on a NSW Procurement pre-qualified panel or scheme, or if they have sent an invoice without being issued a purchase order
  • alerting customers and members of the public to any attempts by third parties to impersonate the agency
  • encouraging staff to not open emails or attachments or click on links from untrustworthy sources
  • directing accounts payment staff to challenge any suspicious requests for payment.

4. Risks associated with stimulus funding and new programs

The Guidance Note warns that agencies that have been tasked with rolling out significant new programs aimed at COVID-19 (under strong time pressure) might be at risk of fraud and corruption.

To protect against these risks, the Guidance Note recommends:

  • ensuring that all staff and contractors are aware of, and conform to, public sector ethical obligations
  • articulating clear responsibilities and lines of communication
  • obtaining advice from subject matter experts where required
  • ensuring that all appropriate regulatory compliance, due diligence and audits are undertaken
  • ensuring that where new personnel are not screened prior to employment, that this is done as soon as possible after employment.

For the full Guidance Note, please click here.

Authors: Scott Alden & Krishneel Kumar

In the media

ALRC: Defamation – a nationwide conversation on law reform
An initial survey of the audience revealed that most participants felt that social media and other emerging ‘publication’ technologies were the main reason that defamation law requires further reform. Just over a quarter of participants suggested that defamation law is in need of a comprehensive overhaul (31 July 2020).  More...

'I was bankrupted even though I won': Moves to reform defamation law welcomed
The NSW Government is looking to amend defamation laws, with the Attorney-General telling State Parliament that "ordinary people can now become publishers with the tap of a button" (31 July 2020).  More...

Review of penalties for attacks on Police and emergency workers in NSW
My terms of reference to the Council today ask it to consider sentencing options to deter and reduce this type of offending. The review will take into account recent trends in assaults upon these workers, who keep our community safe, protecting our lives, property and health (28 July 2020).  More...

Nation agrees to NSW-led defamation revolution
The NSW Attorney General the Hon Mark Speakman SC MP has announced that the Council of Attorneys-General today agreed to NSW-led reforms to overhaul defamation laws across Australia. The proposed reforms from the Council of Attorneys General's Defamation Working Party have followed a wide-ranging consultation process  (27 July 2020).  More...

Public confidence in the New South Wales criminal justice system: 2019 update
A new study by the NSW BOCSAR has found that many NSW residents hold mistaken beliefs about crime and the criminal justice system.  62% of survey respondents believe that violent crime is on the rise (it is stable) and 44% believe that property crime is increasing (it is falling)(28 July 2020).  More...

Nationally consistent power of attorney laws key to mitigating elder abuse

Enhancing protections relating to the use of enduring power of attorney instruments (EPOAs) is a welcome priority for the Council of Attorneys-General and significant focus should be given to creating nationally consistent laws, according to the Law Council of Australia (24 July 2020).  More...

In practice and courts

NSW Land and Environment Court

New Subpoena Practices Practice Note
21 July 2020 - The Practice Note - Subpoena Practices dated 7 May 2015 has been replaced with a new Practice Note that explains the process for access and production of material through the eSubpoena portal. The new Practice Note commences on 22 July 2020

Land and Environment Court 2019 Annual Review
The Land and Environment Court of NSW 2019 Annual Review has been published on the Court's website today (31 July 2020).  More... 

COVID-19: Information for Attending Court - Friday 31 July 2020
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has today again been updated in terms of recent developments (31 July 2020)

Bureau of Crime Statistics and Research Bulletin - Public confidence in the New South Wales criminal justice system: 2019 update
A new study by the BOCSAR has found that many NSW residents hold mistaken beliefs about crime and the criminal justice system. 62% of survey respondents believe that violent crime is on the rise (it is stable) and 44% believe that property crime is increasing (it is falling). The BOCSAR study is available here (28 July 2020).  More...

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...

 NCAT Legal Bulletin
The NCAT Legal Bulletin provides case summaries of relevant and interesting case law of significance to the work of NCAT.  More...

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

ICAC Prosecution briefs with the DPP and outcomes
Prosecution briefs that are currently with the Director of Public Prosecutions (DPP), and the outcomes of DPP advice and prosecutions in relation to ICAC investigations over the past five years.  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...

Administrative review of the Bail Act 2013
The NSW Department of Communities and Justice is reviewing the Bail Act 2013 to determine whether the policy objectives remain valid and if the terms remain appropriate for securing those objectives. Submissions close on 6 August 2020.  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 the hearing or of adjournments or delay. More...

Published – articles, papers, reports

‘What's the difference?’: explaining parliamentary terms
Rob Lundie and Nicholas Horne; APH Research Paper Series, 2020-21: 22 July 2020
While the glossary focuses mainly on parliamentary terms, some relevant government and electoral terms are also included.  More...  

Australian Bureau of Statistics
20/07/2020 Trust in ABS and ABS Statistics - A survey of informed users and the general community, 2020 (cat no. 1014.0)

Public confidence in the New South Wales criminal justice system
BOSCAR: 28 July 2020
Survey respondents also frequently underestimate the proportion of offenders who are convicted and imprisoned. The study also found that the majority of those surveyed in 2019 are confident that the criminal justice system (CJS) respects the rights of the accused (74%), treats accused people fairly (74%) and brings people to justice (60%).  More...

QLS raises privacy concerns on access to vehicle-generated data
Proctor, 22 July 2020; Lexi Kehl             
In a submission to the National Transport Commission (NTC), Queensland Law Society President Luke Murphy has expressed concern over government access to vehicle-generated data, including location citing and tracking.  More...

Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet
29 July, 2020 - Michael Douglas explains how long-awaited changes to Australia's defamation laws will impact media companies in this crossposting from The Conversation.  More...

Cases

Mother’s Choice Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 194
ADMINISTRATIVE LAW - Children (Education and Care Services) National Law (NSW) – decision to cancel provider approval by the regulatory authority –stay sought – relevant principles - stay granted on conditions

DOI v NSW Trustee and Guardian [2020] NSWCATAD 192
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – financial management order

Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160
APPEAL – whether appeal lies to Supreme Court from order prohibiting proposed public assembly notwithstanding s 27(2) of the Summary Offences Act 1988 (NSW) – discussion of statutory limitation of appeals under the Summary Offences Act. COURTS – Jurisdiction – Whether Supreme Court had jurisdiction to entertain an application to prohibit a proposed public assembly in circumstances where Commissioner of Police was alleged not to have complied with the procedure provided for by s 25(2) of the Summary Offences Act 1988 (NSW)
PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether Supreme Court had jurisdiction to entertain an application to prohibit a proposed public assembly – whether Supreme Court’s jurisdiction depended on Commissioner first complying with procedure specified in s 25(2) of the Summary Offences Act

Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159
COURTS AND TRIBUNALS – whether Industrial Relations Commission has jurisdiction to review a decision to dismiss a policer officer pursuant to s 72A of the Police Act 1990 (NSW) – whether matter governed by decision in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2
POLICE – non-probationary officer “caused to be retired” pursuant to s 72A of the Police Act 1990 (NSW) – officer seeking review of decision pursuant to s 84(1) of the Industrial Relations Act 1996 (NSW) – whether Industrial Relations Commission has jurisdiction to hear matter
STATUTORY INTERPRETATION – construction of Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review of a decision made under s 72A of the Police Act 1990 (NSW) amenable to review by Industrial Relations Commission under s 84(1) of the Industrial Relations Act 1996 (NSW)

Skiba v Department of Communities and Justice [2020] NSWCATAD 191
ADMINISTRATIVE LAW - privacy and personal information - review of conduct - jurisdiction -whether conduct under review relates to the exercise of a judicial function

Klaric v Commissioner of Police [2020] NSWCATAP 153
APPEAL - request for access to information under Government Information (Public Access) Act 2009 - where Tribunal affirmed agency’s decision – whether the Tribunal made an error of law – whether Appeal Panel should give permission to appeal on ground other than a question of law

Webb v Port Stephens Council [2020] NSWCATAP 152
APPEAL – whether decision dismissing an application for contempt is an internally appealable decision under the Civil and Administrative Tribunal Act 2013 (NSW)
APPEAL – statutory interpretation – meaning of s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) – whether Tribunal has jurisdiction to entertain a new application for administrative review of the failure to make a decision following remittal under s 63(3)(d) – whether Tribunal has jurisdiction to entertain a new application for administrative review of a decision following remittal under s 63(3)(d)
APPEAL – apprehended bias – where Tribunal member advised respondent to institute proceedings against applicant – whether assurances as to impartiality overcame perception of bias
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009

Wade v Lord Howe Island Board Administration Office [2020] NSWCATAD 190
HUMAN RIGHTS - discrimination – grounds – age and disability CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings

Brazel v Sydney Water [2020] NSWCATAD 188
ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure - whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information - whether disclosure could reasonably be expected to reveal an individual's personal information or contravene an information protection principle

EHK v NSW Trustee and Guardian [2020] NSWCATAD 187
ADMINISTRATIVE REVIEW- Decision by NSW Trustee and Guardian as financial manager under Guardianship Tribunal order- application by NSW Trustee and Guardian for dismissal - application misconceived and lacking in substance, not a reviewable decision. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b. Dismissal order

Legislation

NSW

Proclamations commencing Acts
Justice Legislation Amendment Act (No 2) 2019 No 20 (2020-425) — published LW 24 July 2020
The  object of this Proclamation is to commence amendments to the Legal Aid Commission Act 1979 relating to the engagement of law practices for the provision of legal aid.

Environmental Planning Instruments
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment (Metropolitan Rural Areas Exemption) 2020 (2020-441) — published LW 29 July 2020
State Environmental Planning Policy Amendment (Byron Filming) 2020 (2020-432) — published LW 29 July 2020

Bills introduced- Government
Defamation Amendment Bill 2020

Bills passed by both Houses of Parliament
Digital Restart Fund 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.

Published by:

Krishneel Kumar

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