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NSW Government Bulletin

04 August 2021

#Government

NSW Government Bulletin

Reshaping the future: The NSW Government’s COVID Recovery Plan

Recognising that there are opportunities to reshape the future is a key feature of the NSW Government’s COVID Recovery Plan, but how will that impact the delivery of legal services by government lawyers?

The Recovery Plan features the following tenets of building a resilient and future-proof economy:

  1. Infrastructure pipeline – an area of demonstrated global leadership
  2. Planning and precincts – growing world-leading industries
  3. Education and skills – equipping our students for the jobs of the future
  4. Digitisation – accelerating recovery
  5. Advanced manufacturing and local supply chains – building a self-sufficient economy
  6. Federal-state relations – the time is now for national reform.

Many of the elements of the plan require agencies to harness the power of government delivering together, rather than ‘staying in their own lane’, and of doing things in an innovative way. Examples of this include the various ‘City Deals’ which seek to coordinate all three levels of government to deliver tangible outcomes.

In the context of an environment of change, a collaborative and nimble approach to service delivery must nonetheless not lose sight of the basics, from a legal services perspective, including:

  • tortious liability – is there potential tortious liability associated with the initiative and how should agencies seek to manage risk?
  • administrative law – continuing to make robust decisions within a dynamic context of project acceleration and coordination with the objectives of other levels of government
  • delegations – in particular in joint agency context
  • probity and procurement – again, in particular in a joint agency context and in the context of ‘accelerated’ project rollout and greater coordination with private investors in the establishment of new education, advanced manufacturing and research and development services and markets
  • personal information – is personal information involved and how will it be treated?
  • public accessibility and disclosure – will that information be accessible or can it be disclosed on application?
  • maintaining the record – what are the record-keeping obligations imposed?

The challenges of service delivery in a COVID-19 world bring with them opportunities for accelerated structural change. The specific challenge for legal teams is to support those initiatives within a robust risk management framework.

Authors: Christine Jones & Thomas Kwok

In the media

Forensic analysis now underway to "fully assess risk"
The NSW Department of Education has warned that contact information may have been compromised in the cyber attack against its network earlier this month. The department added that “all protocols required under legislation” would be followed once the extent of the compromise was known (30 July 2021).  More...

Role of ADF to enforce compliance with COVID rules must be well defined
Calling on the Australian Defence Force to enforce lock down rules in Sydney virus hot spots sets a dangerous precedent so the role of defence force personnel must be clearly defined, says the Australian Lawyers Alliance (29 July 2021).  More...

Gender studies to drive PS equality
The Commission for Gender Equality in the Public Sector has published a collection of case studies on gender impact assessments. In a statement, the Commission said “(The Act) requires defined entities to do gender impact assessments of all new policies, programs and services that directly and significantly impact the public, as well as those up for review” (29 July 2021).  More...

ACSC shares 30 cyber failings to avoid
The Australian Cyber Security Centre has issued a joint advisory with its counterparts in the United States and United Kingdom, setting out the top 30 cyber-security vulnerabilities exploited by malicious cyber actors since 2020 (29 July 2021).  More...

The Australian Bar Association calls on the Commonwealth to reconsider the prosecution of Bernard Collaery
The ABA shows concerns in relation to the prosecution of barrister and former Deputy Chief Minister of the ACT and ACT Attorney-General, Bernard Collaery. The prosecution has largely taken place in secret, with much of the evidence suppressed, which impedes the ability of the legal profession and the public to scrutinise the administration of justice in this important case (28 July 2021).  More...

Why Australia needs a federal independent commission against corruption – with teeth
Over the past 20 years, governments have eroded many of the conventions that were part of the fabric of Australian government. Those conventions generally existed for good reason, and so governance got worse. And poor governance is leading to the failure to adopt good policy (28 July 2021).  More...

Crackdown on illegal financial services marketing continues with formal warnings
The ACMA is continuing its clampdown on illegal marketing in the financial services sector with formal warnings issued to five companies for breaches of spam and telemarketing laws (28 July 2021).  More...

New Digital Identity Advisory Council established
The NSW Government has established a Digital Identity Ministerial Advisory Council, that will advise on a strategic direction and roadmap for digital identity in the State, to ensure personal privacy and security are enshrined in all policy making design (27 July 2021).  More...

Facial recognition and the NSW protest crowds
NSW Police have not ruled out its use of facial recognition technology to identify thousands of protestors from a Sydney anti-lockdown rally on Saturday, despite calls from experts to pause its use (27 July 2021).  More...

Audit of Publication of Returns of Interest demonstrates low level of compliance by councils
The IPC has completed a proactive audit into the compliance of councils with publishing returns of interest of councillors, designated staff and delegates in accordance with the Government Information (Public Access) Act 2009 and has published a compliance report on its website. Read the compliance report (27 July 2021).  More...

Information is a public asset: 10 years of reporting on the GIPA Act
The NSW Information Commissioner, Elizabeth Tydd, has released the tenth report on the Operation of the Government Information (Public Access) Act 2009 for 2019–2020, which has been tabled in Parliament – marking a decade of reporting. Read the report (26 July 2021).  More...

HRLC: Children continue to be jailed in year since Attorneys-General failed to raise the age
One year has passed since Australia’s top legal officers failed to raise the age of criminal responsibility from 10 to 14, despite being handed an expert report overwhelmingly recommending that all states and territories and the federal government change laws to keep children out of prison (27 July 2021).  More...

Protect children from data surveillance
Parents who use pregnancy apps or share ultrasounds on social media can expect information about their children to be collected and sold to advertisers for profit. This data powers digital advertising that capitalises on information about peoples’ lives, habits and interests (27 July 2021).  More...

Audits alone won't solve government cyber woes: ANAO
National auditor-general Grant Hehir has questioned a proposal that would see his office review the cyber security of federal government agencies on an annual basis while internal assurance mechanisms and incentives are missing (27 July 2021).  More...

Uber found to have interfered with privacy
Australian Information Commissioner and Privacy Commissioner Angelene Falk has determined that Uber Technologies, Inc. and Uber B.V. interfered with the privacy of an estimated 1.2 million Australians. Rather than disclosing the breach responsibly, Uber paid the attackers a reward through a bug bounty program for identifying a security vulnerability (23 July 2021).  More...

Announcement of new Judge Advocate General for the ADF
The Law Council of Australia congratulates Rear Admiral the Hon Jack Rush RFD QC RAN on his appointment to the position of Judge Advocate General of the Australian Defence Force (JAG) and Commodore James Renwick CSC SC RAN to the position of Deputy Judge Advocate General (Navy). “Military discipline in the armed services is vital both in Australia and on operational service overseas (23 July 2021).  More...

Evaluation of the youth Bail Assistance Line in NSW
A program designed to keep young people out of remand significantly reduces the likelihood of custody. Expanding the Bail Assistance Line has the potential to increase the number of young people placed on bail. However, the impact depends on police engaging the Bail Assistance Line earlier in the bail process (22 July 2021).  More...

Innovative solutions for fairer justice
Vulnerable groups seeking legal assistance will be better supported thanks to a NSW Government investment in artificial intelligence technology to help diagnose legal problems (19 July 2021).  More...

In practice and courts

Attorney-General appointments

Appointment to the Federal Court of Australia
Ms Kylie Elizabeth Downes QC has been appointed as a judge of the Federal Court of Australia and commenced on 2 August 2021.

Appointment to the Federal Circuit Court of Australia
Ms Patricia Cope, Ms Meredith Dickson QC, Ms Catherine Symons and Mr Jonathan Forbes have been appointed as judges of the Federal Circuit Court of Australia.

CDPP undertakings (indemnity from prosecution) and offers of assistance
The purpose of this National Legal Direction is to provide guidance to prosecutors when dealing with persons involved in criminal activity who indicate a willingness to co-operate with authorities and give evidence against others. Click here to read more (22 July 2021).

Strengthening Australia’s cyber security regulations and incentives: Discussion paper
Interested stakeholders are invited to provide a submission to the discussion paper, Strengthening Australia’s cyber security regulations and incentives. Submissions on the discussion paper can be made via our submission form before 27 August 2021. Read the summary and learn more here.

Proposed amendments to the Legal Profession Uniform Conduct (Barristers) Rules 2015
The Australian Bar Association invites comments and submissions on a proposal to amend Rules 123 and 125 of the Legal Profession Uniform Conduct (Barristers) Rules. Submissions should be sent to the Australian Bar Association on or before 2 August 2021. Click here to learn more.

ACMA consultation: Consumer vulnerability: Expectations for the telco industry – consultation 27/2021
We want to create a statement of expectations for the telco industry to improve outcomes for vulnerable consumers. Closing date 08 September 2021. Learn more here.

ACMA consultation: Proposal to amend Do Not Call Register (Access Fees) Determination 2017 – consultation 29/2021
We invite your comments on the Do Not Call Register cost-recovery arrangements. Closing date 20 August 2021. Learn more here.

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. Read the 23 July 2021 update.

Law Council of Australia Submissions

29 July 2021 – Law Council
Use of the term ‘good faith’ in civil penalty and criminal offence provisions in Commonwealth legislation

21 July 2021 – Law Council
Discussion papers – approach to liability and governance issues

21 July 2021 – Law Council
A new decision-making framework for property matters in family law

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. 15/2021, 26 July 2021

OAIC: Our FOI disclosure log
The information described in our disclosure log has been released by the OAIC under the Freedom of Information Act 1982 (FOI Act): Updated May 2021. Read more here.

Legal and Constitutional Affairs Legislation Committee

Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Status: Accepting submissions. Date referred: 17 June 2021. Submissions close: 20 August 2021. Reporting date: 31 December 2021.

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021
Reporting date: 13 August 2021.

Select Committee on Foreign Interference through Social Media
Select Committee on Foreign Interference through Social Media to inquire into and report on the risk posed to Australia’s democracy by foreign interference through social media. The committee is to present its final report on or before the second sitting day of May 2022. The closing date for submissions is 31 October 2021.

Strengthening Australia’s cyber security regulations and incentives
On 13 July 2021, the Australian Government opened consultation on options for regulatory reforms and voluntary incentives to strengthen the cyber security of Australia’s digital economy. Interested stakeholders are invited to provide a submission to the discussion paper, Strengthening Australia’s cyber security regulations and incentives. Submissions on the discussion paper can be made via our submission form before 27 August 2021. Click here for more information.

NSW

Court and tribunal information: Access, disclosure and publication
The NSW Law Reform Commission has released draft proposals ahead of its final report on Court and tribunal information access, disclosure and publication. The proposals focus on the operation of suppression and non-publication orders and access to information in NSW courts and tribunals. Submissions have been invited (closing date 2 August 2021).

Costs disputes – uniform law – indexed amounts
Sections 291, 292 and 293 of the Legal Profession Uniform Law (NSW) relate to costs disputes. The amounts have again been indexed for the financial year 1/7/2021 – 30/6/2022. The Legal Profession Uniform Law (Indexed Amounts) Notice 2021 has been published and is available here.

Personal Injury Commission – hearings during COVID-19
The President of the Personal Injury Commission has advised the NSW Bar Association that the PIC will continue to apply Procedural Direction 10 until further notice. Procedural Direction 10 provides that, during the currency of the COVID-19 pandemic and until further notice, the Commission will, list matters for hearing by audio link or audio-visual link. Procedural Direction 10 is available 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 to 31 December 2021.

Published – articles, papers, reports

Final report – evaluation of the operation and effectiveness of COVIDSafe and the national COVIDSafe datastore
Department of Health: 22 July 2021.
A heavily redacted version of a report evaluating the effectiveness of its COVIDSafe contact tracing app after failing to produce the report itself. View the independent report.

Review of the parliamentary workplace: Responding to serious incidents
Stephanie Foster, Department of the Prime Minister and Cabinet (Australia): 26 July 2021. This review found that current procedures and processes are not designed or able to respond appropriately to serious incidents in the Australian parliamentary workplace, particularly with regard to sexual assault. The most significant gap is the absence of readily accessible, timely, independent, trauma-informed services. Read more here.

Audiovisual link technologies in Australian criminal courts: Practical and legal considerations
Russell G. Smith, Rebecca Savage,Catherine Emami; Australian Institute of Criminology: 27 July 2021.
This report assesses the practical and legal considerations that need to be taken into account when adopting audio-visual link (AVL) technologies in the criminal courts, and concludes by identifying best practice initiatives for the adoption of AVL technologies in Australia. Read more here.

Gridlock: Removing barriers to policy reform
John Daley, Grattan Institute: 25 July 2021.
Australia’s governance is going backwards. Without change, there is little prospect for many substantial policy reforms that would increase Australian prosperity. Read more here.

An evaluation of the youth Bail Assistance Line
Ilya Klauzner; Crime and Justice Bulletin No. CJB237. 22 July 2021.
Bail/remand; children, juveniles and young people; evaluation reports; policing.
Read more here.

ABA National Brief – July 2021
In this month’s National Brief, President of the ABA, Matthew Howard SC, responds to the continued disruption of the pandemic on the administration of justice and updates members of the National Bar on the activities of the ABA, including preparations for the ABA 2021 National Conference. The National Brief is available here.

Independent review into Commonwealth Parliamentary workplaces: Progress update 2021
Australian Human Rights Commission: 19 July 2021.
The independent review into Commonwealth Parliamentary workplaces was established in March 2021. This progress update outlines the work of the review to date, including the methodology. Read more here.

Cases

Knight and Commonwealth Ombudsman (Freedom of information) [2021] AATA 2504
FREEDOM OF INFORMATION – review of decisions of Australian Information Commissioner that parts of documents are exempt – documents conditionally exempt under section 47F and section 47E(d) of the Freedom of Information Act 1982 – access would involve unreasonable disclosure of personal information – no obligation under section 27A to consult with persons concerned when access denied – public interest met by current extent of disclosure – decisions under review affirmed.

Commissioner Initiated Investigation into Uber Technologies, Inc. & Uber B.V. (Privacy) [2021] AICmr 34
Privacy – Privacy Act 1988 (Cth) – Australian Privacy Principles – APP 11.1 – APP 11.2 – APP 1.2 – extraterritorial jurisdiction – unauthorised access to personal information by third party – whether reasonable steps taken to protect personal information from unauthorised access – whether reasonable steps taken to delete or de-identify personal information – whether reasonable steps taken to implement practices, procedures and systems to ensure compliance with the APPs – breaches substantiated – requirement to prepare compliant policies and programs – independent review of policies and programs. Updated 23 July 2021.

Bonser v Commonwealth Superannuation Corporation [2021] FCA 847
ADMINISTRATIVE LAW – application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) – invalidity classification – where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect – where grant of relief requires the exercise of judicial discretion – where evidence supports the joint submissions – orders made in terms sought.
DEFENCE AND WAR – military superannuation and invalidity benefits – Military Superannuation and Benefits Act 1991 (Cth) – application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) – invalidity classification – where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect – where grant of relief requires the exercise of judicial discretion – where evidence supports the joint submissions – orders made in terms sought.
Military Superannuation and Benefits Act 1991 (Cth); Federal Court of Australia Act 1976 (Cth) ss 37N, 43.
Judiciary Act 1903 (Cth) s 39B.

Bowers v Judicial Commission of New South Wales (No 1) [2021] NSWSC 916
PRACTICE AND PROCEDURE – summons – summary dismissal – whether no reasonable cause of action disclosed – where plaintiff seeking judicial review of decision of Judicial Commission to summarily dismiss complaint made by him – where presiding judge asked plaintiff which suburb he was living in – where plaintiff alleged “serious defamation”, “gratuitous denigration”, and innuendo that he was of no fixed abode – complaint dismissed due to triviality and inability to disclose judicial misconduct – where plaintiff alleged that decision was “perverse” or unreasonable – held, no reasonable cause of action disclosed – summons dismissed.

EPO v NSW Trustee and Guardian [2021] NSWCATAD 220
ADMINISTRATIVE REVIEW – financial management – where private financial manager appointed to manage estate of protected persons – where respondent made decisions to approve proposed sale of protected person’s home and modification of home for sale – where protected person’s daughter and former carer living in home – whether correct and preferable decision.

EMF v Cessnock City Council [2021] NSWCATAD 219
ADMINISTRATIVE LAW – privacy – review of conduct of agency and if in contravention of IPP 3 and/or IPP 10 – reasonable steps to notify an IPP 3 compliant notice before or after collection – impact of contrary statement in Privacy Statement and collecting information in confidence on right given to Councils under clause 4.11(1) of the Privacy Code of Practice for Local Government to use information for other purposes – assessing causation and amount of damages for psychological harm under s 54 PPIP Act.

Commissioner of Police v Fakhouri [2021] NSWCATAP 226
ADMINISTRATIVE LAW – hearing rule – disclosure – matters of common knowledge.
ADMINISTRATIVE LAW – meaning of “condition” in Security Industry Act 1997 (NSW).
EVIDENCE – burden of proof – applications under Administrative Decisions Review Act 1997 (NSW).

DVH v South Eastern Sydney Local Health District [2021] NSWCATAD 212
ADMINISTRATIVE LAW – privacy and personal information – disclosure of personal information – use of personal information – accuracy of personal information – whether evidence establishes breach – whether exceptions apply.

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858
CRIME – conspiracy to commit the common law offence of wilful misconduct in public office – elements of the offence – whether the indictment disclosed an offence known to law – joint trial of three co-accused – accused Macdonald former Minister for Mineral Resources in the Executive Government of the State of New South Wales – scope and content of duties and obligations of confidentiality and impartiality owed by a Minister in the Executive Government of the State of New South Wales – eight acts of wilful misconduct particularised as acts by accused Macdonald in furtherance of the conspiracy – overt acts of accused Edward Obeid and Moses Obeid as acts in furtherance of the conspiracy – circumstantial evidence case – Shepherd direction – consciousness of guilt lies – application of co-conspirators rule in s 87(1)(c) of the Evidence Act 1995 (NSW).

Legislation

Commonwealth

Telecommunications Legislation Amendment (International Production Orders) Bill 2020
Assent Act no: 78. Year: 2021. 23 July 2021.
Amends the Telecommunications (Interception and Access) Act 1979 to: Provide a framework for Australian agencies to obtain independently-authorised international production orders for interception, stored communications and telecommunications data directly to designated communications providers in foreign countries with which Australia has a designated international agreement; make amendments contingent on the commencement of the proposed Federal Circuit and Family Court of Australia Act 2020; and remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants.

Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021
Assent Act no: 77. Year: 2021. 23 July 2021.
Introduced with the Online Safety Bill 2021, the bill: Repeals the Enhancing Online Safety Act 2015; makes consequential amendments to 10 Acts; amends the Crimes Act 1914, Export Market Development Grants Act 1997 and Online Safety Act 2021, when enacted, to make amendments contingent on the commencement of certain other Acts; and contains transitional and application provisions.

Online Safety (Transitional Provisions and Consequential Amendments) Act 2021
Act No. 77 of 2021 as made.

Online Safety Bill 2021
Assent Act no: 76. Year: 2021. 23 July 2021 – introduced with the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, the bill: Retains and replicates certain provisions in the Enhancing Online Safety Act 2015, including the non-consensual sharing of intimate images scheme; specifies basic online safety expectations; establishes an online content scheme for the removal of certain material; creates a complaints-based removal notice scheme for cyber-abuse being perpetrated against an Australian adult; broadens the cyber-bullying scheme to capture harms occurring on services other than social media; reduces the timeframe for service providers to respond to a removal notice from the eSafety Commissioner; brings providers of app distribution services and internet search engine services into the remit of the new online content scheme; and establishes a power for the eSafety Commissioner to request or require internet service providers to disable access to material depicting, promoting, inciting or instructing in abhorrent violent conduct for time-limited periods in crisis situations.

Online Safety Act 2021 
Act No. 76 of 2021 as made.

Act compilation

Age Discrimination Act 2004
27 July 2021 – Act No. 68 of 2004 as amended.

Regulations

Civil Dispute Resolution Regulations 2021
27/07/2021 – this instrument ensures that three types of proceedings in the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) remain excluded from the operation of the Civil Dispute Resolution Act 2011. 

Information Amendment (Vaccination Reporting) Principles 2021
26/07/2021 – this instrument amends the Information Principles 2014 to authorise the Secretary to publish vaccination information received from approved providers under section 30C and 30D of the Accountability Principles 2014. 

Australian Capital Territory (Self-Government) Regulations 2021
26/07/2021 – these Regulations prescribe Australian Capital Territory enactments that bind the Crown in right of the Commonwealth.

Academic Integrity Rule 2021
19/07/2021 – this rule defines the academic integrity principle, with the object of the instrument being to ensure that the principle is respected and observed at the Australian National University.

NSW

Regulations and other miscellaneous instruments
Child Protection (Working with Children) Amendment (Proof of Identity) Regulation 2021 (2021–416) – published LW 30 July 2021.
Legal Profession Uniform General Amendment (Interest Rate) Rule 2021 (2021–420) – published LW 30 July 2021.
Administrative Arrangements (Administration of Acts–Amendment No 2) Order 2021 (2021–403) – published LW 23 July 2021.
Public Health Amendment (COVID-19 Penalty Notice Offences) Regulation 2021
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.

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