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NSW Government Bulletin

06 March 2019

#Government

Lyn Nicholson

Published by Lyn Nicholson, Jeffery Shi

NSW Government Bulletin

How well is GIPA working? Better, according to a recent report

The 2017-2018 Report on the Operation of the Government Information (Public Access) Act 2009 (the GIPA Act) (Report) prepared by the NSW Information and Privacy Commission was released on 28 February 2019. 

The Report confirms  government agencies have strengthened compliance with the GIPA Act in terms of:

  • increased proactive release of information through better systems, governance and resourcing
  • steady release of information by access application made by members of the public, members of parliament, not-for-profit and community groups and businesses, and media.

However, the Report also noted decreased timeliness of response times requiring a focused resourcing response. The Report contains a detailed analysis of the outcomes achieved for the actions identified in the previous report. 

The Report noted the NSW commitment to Open Government and identified the following future focus strategies:

  • systemic compliance through release of a self-audit tool to elevate compliance with core requirements for sound information governance
  • mandatory proactive release through investigation of low compliance of agencies
  • authorised proactive release through publishing of a guideline to promote release of Open Data by agencies
  • informal release through working with identified agencies, including the NSW Police Force
  • release of information with access applications through assisting the receipt of valid applications by engaging agencies who experienced increased or decreased receipt rate of valid applications 
  • external reviews through publically reporting on compliance with timeliness in finalising external reviews.

Further, the Report has signalled the NSW Information and Privacy Commissioner’s intention to enhance the timeliness and quality of the agencies’ responses by supporting electronic lodgement of access applications, which has the expected benefit of decreasing invalid applications which are a drain on agency resources.

Editorial: Lyn Nicholson & Jeffery Shi

In the media

Western Australia to adopt uniform law
Australia is a step closer to having a national legal market, with Western Australia signing a landmark agreement to join the Legal Profession Uniform Law Scheme, NSW, Victorian and Western Australian Attorneys General Mark Speakman, Jill Hennessy and John Quigley announced today (28 February 2019).  More...

Working together to improve access to justice for cross-border communities
The Cross-border justice report, released by Victoria Legal Aid and Legal Aid NSW, outlines how the commissions will improve access to legal assistance along the Victorian/NSW border (28 February 2019).  More...

Open justice under examination
The NSW LRC will begin an extensive review of laws that impact access to court information. The Open Justice Review will determine whether our laws strike the right balance between protecting the rights of victims and witnesses, privacy, confidentiality and the public interest in open justice (28 February 2019).  More...

Have your say on national defamation law
The NSW-led process of reforming national defamation laws has reached another significant milestone with the release of the Council of Attorneys-General's (CAG) discussion paper, Attorney General Mark Speakman announced today (26 February 2019).  More...

Attack on State's Judiciary concerning
The Law Society of NSW, which represents the interests of the state’s 34,000 solicitors, has voiced its concerns about media criticism of the Chief Judge of the Land and Environment Court of NSW, including media claims of ‘judicial overreach’ in relation to a recent and extensive judgment by the Honourable Chief Judge Brian Preston SC (19 February 2019).  More...

In practice and courts

LSC: Our Annual Reports 2017-2018 now available
Following tabling in both the NSW and Victorian Parliaments, our 2017-2018 Annual Reports for the Legal Services Council and the Commissioner for Uniform Legal Services Regulation are now available (19 February 2019) Inside, you will find progress reports and comparative data regarding the Uniform Law. Highlights are outlined here.

High Court of Australia Bulletins
High Court of Australia Bulletin [2019] HCAB 01 (26 February 2019).  More...

NCAT new orders: Tenancy law changes for victims of domestic violence
From 28 February 2019 changes to tenancy laws allow tenants to end their tenancy immediately and without penalty if they or their dependent children are in circumstances of domestic violence. Under the Residential Tenancies Act 2010 NCAT can make orders following the service of a domestic violence termination notice. The following application forms have been updated with the new order types.  More...

Public Consultation: Review of model defamation provisions
The Defamation Working Party is seeking feedback on defamation law in Australia, to assess how the legal principles apply in the digital age and identify areas for national reform. Submissions close on 30 April 2019.  More...

NSW Court Appointments
27 February 2019 New Magistrate and Court Circuit for Grafton
27 February 2019 New Magistrate and Court Circuit for Muswellbrook

NSW LRC: Open Justice Review - Court and tribunal information: access, disclosure and publication
The Attorney General has asked us to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals. See the Terms of reference. The deadline for preliminary submissions is Friday 31 May 2019. Information about making a submission may be found on our website: Making a submission (28 February 2019).

IPC: GIPA Act report reveals information access applications and proactive release by agencies on the rise in 2017/18
The NSW Information Commissioner has released the eighth annual Report on the operation of the GIPA Act 2017 – 2018 (28 February 2019).  More... 

JUDCOM: Sexual Assault Trials Handbook Update 23 published
15 February 2019 - Update 23 of the Sexual Assault Trials Handbook includes: [1-040] Meaning of “consent”
Following the commencement of the relevant provisions of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, which introduced a new consent provision, s 61HE into the Crimes Act 1900, a brief legislative history of the consent provisions has been included in the Handbook.  More...

Published - articles, papers, reports

Cross-border justice: exploring ways to improve access to legal assistance along the NSW/Victorian border
Victoria Legal Aid, Legal Aid New South Wales; Victoria Legal Aid: 28 February 2019
Many border communities experience complex and unique challenges in accessing justice and have a proportionally higher demand for legal services than other parts of Victoria and New South Wales.  More...

Review of Model Defamation Provisions: Discussion paper
Council of Attorneys-General; Department of Justice (NSW): 27 February 2019
This discussion paper invites public feedback on the Model Defamation Provisions to assess whether the existing laws are meeting their policy objectives, particularly in response to the rise of online publications and technological changes since the provisions were developed.  More...

The impact of private versus public legal representation on criminal proceedings
BOSCAR: 15 February 2019
Legal Aid NSW indictable matters assigned to private defence lawyers are more likely to be finalised at a later stage in proceedings and are more likely to be finalised in the Higher Court.  More...

Cases

Del Fabbro v Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) [2019] NSWIRComm 1015
PUBLIC SECTOR DISCIPLINARY APPEAL – Dismissal – appellant allowed inmates to take contraband into correctional centre – serious misconduct – dismissal not unreasonable or unjust – mitigating circumstances – dismissal harsh – appeal allowed – some punishment warranted – no order for back pay.

Treble v Building Professionals Board [2019] NSWCATOD 34
ADMINISTRATIVE REVIEW – Accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders varied as to amount of fine.

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
ADMINISTRATIVE LAW - GIPA Act – Government Information – access – record keeping – relevance - sufficiency of searches.

Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) [2019] NSWIRComm 1012
VICTIMISATION – Application for orders by dismissed Public Service senior executive – reinstate or re-employ – pay compensation – jurisdictional objection – implied repeal of power to make orders sought – privative provision – express displacement – application dismissed due to lack of jurisdiction.

Pavlou v Commissioner of Police, NSW Police Force [2019] NSWCATOD 27
ADMINISTRATIVE LAW – Security licensing – where applicant’s application for a security licence refused by respondent - where applicant convicted of fraud and other offences – where no evidence of remorse – where applicant not candid with Tribunal – whether applicant a fit and proper person to hold a licence.

Zonnevylle v Department of Justice [2019] NSWCATAP 44
APPEAL – Scope of NCAT’s internal appeal jurisdiction - meaning of s 111 and s 112 of the Government Information (Public Access) Act 2009 - whether certain “questions of law” should be referred to the Supreme Court – whether Member at first instance and on appeal should give permission to record proceedings – whether Members at first instance and on appeal should disqualify themselves for bias.

Hindmarsh v NSW Ministry of Health [2019] NSWCATAD 30
ADMINISTRATIVE LAW – Administrative Review - access to Government Information – personal information – health information – no consent to release – application of public interest test.

Legislation

Proclamations commencing Acts

Criminal Legislation Amendment (Consorting and Restricted Premises) Act 2018 No 50 (2019-84) — published LW 22 February 2019

Regulations and other miscellaneous instruments

Crimes (Criminal Organisations Control) Regulation 2019 (2019-85) — published LW 22 February 2019

Young Offenders Amendment (Exempted Sexual Offences) Regulation 2019 (2019-92) — published LW 22 February 2019

Children (Detention Centres) Amendment (Classification) Regulation 2019 (2019-117) — published LW 28 February 2019

Electoral Amendment (Exemptions) Regulation 2019 (2019-139) — published LW 28 February 2019

Justices of the Peace Amendment (Exemptions) Regulation 2019 (2019-124) — published LW 28 February 2019

Prevention of Cruelty to Animals Amendment (Penalty Notice Offences) Regulation 2019 (2019-128) — published LW 28 February 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Lyn Nicholson

Published by Lyn Nicholson, Jeffery Shi

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