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NSW Government Bulletin

08 December 2021

#Government

Published by:

Simona Njaim

NSW Government Bulletin

Frank and fearless or echo chamber? New guidance note on obtaining independent advice

This month, the NSW Independent Commission Against Corruption (ICAC) released the Obtaining independent advice: dos and don’ts guidance note (Guidance Note), which is a salutary reminder of the minefield to be trodden when briefing and liaising with external experts, as informed by recent operations Dasha, Tilga and Gerda.

The twin advantages of external independent advice are:

  • the advice is objective and avoids the bias that attaches to the agency’s own culture
  • the expert may have technical skills not otherwise available within the agency.

It is of course easy to see how an expert can impair its independence. For example, in the hope of repeat engagements, it may advise in line with its perception of the agency’s desired outcomes.

The Guidance Note suggests that there is particular exposure where a corrupt official leads a supposedly independent expert to make recommendations consistent with the official’s desired outcome, creating a veneer of independence to justify decision making where the true intent of the decision is to confer an improper benefit.

So what can be done to protect the independence of the advice and the expert? The Guidance Note recommends the following:

  • provide specific instructions, set an appropriate scope of work and give the expert enough time to complete the work
  • control of the engagement should not be the sole domain of the person or unit who may be subject of criticism in the expert’s report, potentially legal or audit or a central agency should have a role in engagement
  • any exclusions to the scope of work, disclaimers or assumptions should be brought to the attention of any reader of the expert’s final advice or report so that the reader has a full picture of what the expert was and wasn’t asked to do. Similarly, parts of the report should not be selectively deployed
  • agencies be prepared to receive advice that does not accord with their point of view
  • it is preferable that the independent expert engaged is part of a professional association that requires the expert to comply with its own code of ethics and professional standards
  • the expert should not be asked to depart from industry standard practice
  • the fee should not be determined by the content of the advice
  • the expert should be permitted to disagree with any existing proposed course of action
  • variations to the scope of work should be in writing
  • if a data sample is required, the expert should select the sample, not the agency
  • the expert should not derive a large proportion of its work from the agency, and experts should be drawn from a pool or rotated
  • the expert should be asked to disclose personal or financial conflicts
  • agencies should refer to and carry out the procedures set out in the Supplier due diligence: a guide for NSW public sector agencies when selecting and engaging an expert.

Where an agency believes an independent expert has made an error in providing its advice, the agency can identify the errors or differences in opinion and request that the expert revisits the issues and reconsider its findings. The agency can also contact the expert and request further clarification on how the expert reached its conclusions. If the expert changes its opinion or advice as a result of these discussions, the expert should explain its reasons for doing so in the report.

No foray into this area would be complete without case studies to demonstrate how things can go very wrong. Below are some examples:

With consulting to every level of government being a very big business and a slew of think tank reports fuelling public perception on the issue of over-reliance, the guidelines, perhaps, could not come at a better time.

Authors: Christine Jones & Simona Njaim

In the media

Lawyers’ duty to the administration of justice undermined by Religious Discrimination Bill
If it becomes law, the Religious Discrimination Bill will allow lawyers to make statements of belief even when these comments could damage the reputation of the justice system (03 December 2021).  More...

Reforms to strengthen the electoral system and our democracy
Activists seeking to influence election outcomes will no longer be able to shroud their electoral expenditure in secrecy, and will face tough rules that ban foreign donations from influencing Australian elections (02 December 2021).  More...

Ombudsman finds law records scratched
Acting Commonwealth Ombudsman, Penny McKay has inspected several law agencies’ compliance with record-keeping requirements, finding instances where the Australian Commission for Law Enforcement Integrity failed to keep accurate records. The Ombudsman’s report can be accessed here (02 December 2021).  More...

New evaluation tools to support APS reforms
Unveiling the Department’s Commonwealth Evaluation Policy and Toolkit, the Minister for Finance, Senator Simon Birmingham said the Government expected the APS to deliver for all Australians by setting clear goals and measuring progress towards its achievements (02 December 2021).  More...

AHRC: Sex Discrimination Commissioner Kate Jenkins launches Set the Standard
Sex Discrimination Commissioner Kate Jenkins has launched Set the Standard, the Australian Human Rights Commission’s report on the Independent Review into Commonwealth Parliamentary Workplaces (30 November 2021).  More...

Appointment of National Data Commissioner Designate
The Morrison Government has announced the appointment of Ms Gayle Milnes as the new National Data Commissioner Designate. The Governor-General will be asked to consider this appointment as a statutory office holder when the Data Availability and Transparency Bill passes (01 December 22021).  More...

Morrison Government’s Payment Times Reports Register open for business
The Morrison Government has increased transparency and choice for Australian small businesses launching its Payment Times Reports Register. The Register publishes the time it takes for large businesses and certain government entities to pay their small business suppliers (30 November 2021).  More...

‘Utterly unacceptable’: $1b annual spend on consultants undermining APS
There are fresh calls to reign in the growing and “excessive” use of consultants by the public service, after evidence the Coalition government is currently on pace to spend more on external advice than the record $1.2 billion it previously gave a handful of consultancy companies in a single year (30 November 2021).  More...

New pathway for resolving interstate disputes
The Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021, passed earlier this year and now in effect, improves access to justice by allowing the Magistrates’ Court to hear federal jurisdiction matters that VCAT cannot hear (30 November 2021).  More...

APS suffering at hands of hired staff
The shift from Australian Public Service staff to labour hire, consultancies has undermined APS capability, according to a new report from the Senate Finance and Public Administration References Committee. View the report here (29 November 2021).  More...

Combatting online trolls and strengthening defamation laws
In a world-leading move, the Morrison Government will introduce new court powers to force global social media giants to unmask anonymous online trolls and better protect Australians online (28 November 2021).  More...

Greater transparency needed for NSW Government’s use of machine technology in decision-making
NSW Ombudsman Paul Miller has called for greater visibility of the use of artificial intelligence and other machine technology by NSW Government agencies (29 November 2021).  More...

ABA calls for moderation in anti-corruption debate
The Australian Bar Association has called for moderation in the debate over the proposed federal anti-corruption commission, after the Prime Minister compared the New South Wales Independent Commission against Corruption to a ‘kangaroo court’ (26 November 2021).  More...

NSW Disability Inclusion Plan unveiled
People with disability will live in more inclusive and accessible communities under the NSW Government’s plan to remove systemic and attitudinal barriers to participation in society. Minister for Families, Communities and Disability Services Alister Henskens said the NSW Disability Inclusion Plan 2021–2025 strengthens the state’s accessibility framework and outlines work underway to improve outcomes for people with disability (19 November 2021).  More...

New PS rules to aid people with disability
Public sector agencies are to be required to develop action plans to make their communities more inclusive and accessible for people living with disability under a new plan from the Department of Communities and Justice (23 November 2021).  More...

NSW Government secures landmark laws against modern slavery
Special Minister of State, Don Harwin, has announced that groundbreaking laws against modern slavery will come into effect on 1 January 2022 (19 November 2021).  More...

Get ready to have your say on digital identity
NSW customers will soon have more choice and convenience when accessing government services as a result of the NSW Government’s nation-leading investment in the digital identity reform (18 November 2021).  More...

Remote witnessing of legal forms to stay
The signing of legal documents such as wills, statutory declarations, and affidavits can be done more efficiently with online witnessing of the task (17 November 2021).  More...

Consent reforms pass parliament
Common sense reforms to simplify sexual consent laws and to ensure more effective prosecutions of sexual offences have passed NSW Parliament (23 November 2021).  More...

OAIC publishes first Consumer Data Right privacy assessment
An audit of the big four banks has found they are generally handling consumer data under the Consumer Data Right in an open and transparent way with good privacy practices in place. As co-regulator of the Consumer Data Right system, Commissioner is proactively assessing privacy practices to ensure providers are meeting their obligations (23 November 2021).  More...

Increasing transparency of political campaigners for stronger electoral integrity
The Electoral Legislation Amendment (Political Campaigners) Bill 2021 brings additional actors who are not political parties or candidates but are seeking to influence elections into the AEC’s transparency register (22 November 2021).  More...

Keeping Australia safe from high risk terrorist offenders
The Morrison Government has secured passage in the Parliament of legislation to continue to protect the Australian community from the evolving threat posed by convicted terrorist offenders (22 November 2021).  More...

In practice and courts

High Court of Australia robing protocol November 2021 – 24 November 2021
The High Court has issued a robing protocol for the assistance of counsel appearing before the Court. Click here to read more.

High Court of Australia – video connection hearings protocol
The High Court of Australia has issued a protocol for practitioners participating in video connection hearings. The protocol is available here.

Update to the profession: Court forms and Lighthouse Project monthly update update to the profession: Court forms
Grace period for forms ended.
The three month grace period provided for filing old Family Court of Australia and Federal Circuit Court of Australia forms, after the commencement of the Federal Circuit and Family Court of Australia (FCFCOA) on 1 September 2021, has ended. From 29 November 2021 only the new, approved FCFCOA versions of court forms can be filed. All FCFCOA forms are available here.

ONDA: Dataplace, a new tool to promote safe and effective sharing of Government data (The Data Availability and Transparency Bill)
Dataplace will facilitate and co-ordinate requests for data across Australian Government agencies. It brings the DATA scheme to life by enabling and encouraging safe data sharing. While Dataplace will manage the process of requesting access to data; it will not be a mechanism to actually transmit or store data. Click here for more information.

Reform of Australia’s electronic surveillance framework discussion paper
​​​​​For more information click here.
As the first step in public consultation, the Government has released the Reform of Australia’s electronic surveillance framework discussion paper which seeks early views from interested stakeholders and members of the public to inform the development of a new framework. Click here to read the paper. The closing date for submissions to the discussion paper is 11 February 2022.

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 29 November 2021 edition.

AAT: Changes to application lodgement and document submission from 31 January 2022
29/11/2021 from early 2022, the AAT’s preferred method of filing will be through our convenient online services portal. We are making this change to streamline the application process for our users, so from 31 January 2022, people applying to have decisions reviewed in the General and Other Divisions should lodge and submit their documents online. Click here for more information.

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. 24/2021, 29 November 2021.

Attorney General appointments

Appointments to the Federal Circuit and Family Court of Australia (Division 1)
26 November 2021 – Mr Andrew Strum QC and Mr Richard Schonell SC have been appointed as judges of the Federal Circuit and Family Court of Australia (Division 1) and will commence on 29 November 2021.

Reappointment of Solicitor-General
26 November 2021 – Dr Stephen Donaghue QC as the Solicitor-General for a term of five years.

Appointments to the Federal Circuit and Family Court of Australia (Division 2)
26 November 2021 – Dr Anna Parker and Ms Dearne Firth have been appointed as judges of the Federal Circuit and Family Court of Australia (Division 2) and will commence on 29 November 2021.

LCA submissions
29 November 2021 – Law Council
Statutory review of the Counter Terrorism (Temporary Exclusion Orders) Act 2019 (Cth)

Australian Human Rights Commission consultation
Have your say in a National Anti-Racism Framework
Submissions are open from 21 October to 15 December 2021.

Legal and Constitutional Affairs Legislation Committee

The performance and integrity of Australia’s administrative review system
The deadline for submissions to this inquiry is 24 November 2021. Further detail about the scope of the inquiry is provided in the terms of reference.

The adequacy and efficacy of Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime
Report by 2 December 2021.

Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Submissions closed: 20 August 2021. On 22 November 2021 the committee's reporting date was extended to 31 March 2022.

Religious Discrimination Bill 2021 [Provisions]; Religious Discrimination (Consequential Amendments) Bill 2021 [Provisions] and Human Rights Legislation Amendment Bill 2021 [Provisions]
To the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 4 February 2022.

Statute Law Amendment (Prescribed Forms) Bill 2021
On 1 December 2021 the committee's reporting date was extended to 28 February 2022.

Consultation on review of the Workplace Gender Equality Act 2012
The Workplace Gender Equality Agency has invited feedback on a review of the law covering workplace gender equality in Australia, on and issued a consultation paper which covers the current legislation, enshrined in the Workplace Gender Equality Act 2012, as well as gender indicators and continuing employer reporting obligations. Submissions closed on 24 November and further information can be accessed on the PM&C website here.

ACMA proposal to make Telecommunications Service Provider (Customer Identity Verification) Determination 2021 – consultation 39/2021
The ACMA is consulting on proposed new rules to help prevent scammers from targeting high-risk customer interactions with telcos, such as SIM swap requests, changes to accounts and disclosure of personal information. We invite your comments on the proposed new customer identity verification rules. Closes on 15 December 2021. Click here for more information.

NSW

NCAT: Major changes to community schemes laws: New forms and fact sheet
01 December 2021 – the new Community Land Management Act 2021 and Community Land Development Act 2021 commenced on 1 December 2021. Existing NCAT strata and community schemes application forms have been consolidated and a new fact sheet has been developed. The fact sheet includes detailed information about the different types of orders and how community schemes disputes are managed at NCAT.
Strata and community schemes application form
Strata and community schemes interim application form
Community schemes fact sheet

NSW Land and Environment Court
01 December 2021 – COVID-19 Pandemic Arrangements Policy December 2021

Sentencing Council: Review of fraud and fraud-related offences
The Attorney General has asked us to review sentencing for fraud and fraud-related offences in New South Wales. We are currently accepting preliminary submissions on issues raised by the terms of reference. Preliminary submissions are due by 17 December 2021. Click here for more information.

JUDCOM: Civil Trials Bench Book
Update 46, 1 December 2021 – [1–0000] disqualification for bias; [1–0900] interpreters; [2–0200] adjournment; [4–1500] privilege; [5–0200] appeals except to the Court of Appeal; [5–7000] intentional torts; [10–0300]. Contempt generally. Civil Trials Bench Book.

Local Court Memo 24 on COVID-19
November 2021 – COVID Court Procedure to 24 January 2022. This Memorandum replaces all other previous COVID-19 memorandum. Click here for more information.

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.

ICAC: NSW ICAC media alert: Public inquiry into corruption allegation concerning former RMS employees resumes
The NSW ICAC's Operation Paragon public inquiry into concerning former Roads and Maritime Services employees Alexandre Dubois and Craig Steyn resumed on Monday, 6 December 2021. Click here for more information.

ICAC: Obtaining independent advice: Do's and don’ts
The NSW ICAC has released some tips about what public officials need to know when obtaining independent expert advice. Click here for more information.

ICAC: NSW ICAC premises temporary general closure extended up to 15 December 2021
The NSW ICAC premises at 255 Elizabeth Street, Sydney, will now remain closed until 9 am on Wednesday 15 December 2021, when COVID-19 restrictions are expected to further ease. Click here for more information.

ICAC: Dealing with incumbent providers in procurement
23 November 2021 – the NSW ICAC has released some tips on dealing with incumbent providers in procurement. Download Dealing with incumbent providers in procurement.

ICAC: Prosecution briefs with the DPP and outcomes
The tables on this page each provide information on prosecution briefs that are currently with the Director of Public Prosecutions (DPP), and the outcomes of DPP advice and prosecutions. Click here for more information.

Published – articles, papers, reports

New RMG–130 – Commonwealth Evaluation Policy and Toolkit
The Commonwealth Evaluation Policy and supporting toolkit, which took effect on 1 December 2021. This has been developed as part of the Government’s Australian Public Service (APS) Reform Agenda. The policy and toolkit aim to build evaluation capability and expertise into everyday practice across the APS, and to support better practice evaluation activities across the policy cycle.

PGPA Newsletter 75
Published 02 December 2021. Read more here.

CDPP: Publications and policies
24 November 2021. Jury Issues [NLD].

Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces
Kate Jenkins; Australian Human Rights Commission. The report has been tabled on 30 November 2021. This report presents the Commission’s findings and 28 recommendations. Click here to read more.

Report to the Minster for Home Affairs on agencies compliance with the Surveillance Devices Act 2004, for the period 1 January to 30 June 2021
Commonwealth Ombudsman: 01 December 2021. Click here for more information.

Administration of the Research and Development Tax Incentive
ANAO Report No 10: 25 November 2021. The objective of the audit was to assess the effectiveness of Industry Innovation and Science Australia's, the Department of Industry, Science, Energy and Resources', and the Australian Taxation Office's administration of the Research and Development Tax Incentive program. Click here for more information.

Australian National University’s Governance and Control Framework
ANAO Paper No 11: 29 November 2021. The audit objective was to assess the effectiveness of the Australian National University’s governance and control framework. Click here for more information.

Gender Balance on Australian Government Boards Report 2020–21
PMC Office for WomenLeadership: 03 December 2021. The Gender Balance on Australian Government Boards Report is prepared annually by the Office for Women, and reports on the Government’s performance against its gender diversity target. Click here for more information.

The new machinery of government: Using machine technology in administrative decision-making
NSW Ombudsman: Tabled 29 November 2021. The Ombudsman has cautioned agencies that using machine technology in ways that do not accord with standards of lawfulness, transparency, fairness and accountability, could lead to findings of maladministration or potentially unlawful conduct. View the report.

Cases

'YW' and Department of Veterans' Affairs (Freedom of Information) [2021] AICmr 77
FREEDOM OF INFORMATION – whether reasonable steps taken to locate documents – (CTH) Freedom of Information Act 1982 s 24A.

'YV' and the Bureau of Meteorology (Freedom of information) [2021] AICmr 76
FREEDOM OF INFORMATION – whether reasonable steps taken to find documents – (CTH) Freedom of Information Act 1982 s 24A.

'YU' and Bureau of Meteorology (Freedom of information) [2021] AICmr 75
FREEDOM OF INFORMATION – whether disclosure would have a substantial adverse effect on the management of personnel – whether contrary to the public interest to release conditionally exempt material (CTH) Freedom of Information Act 1982 ss 11A(5) and 47E(c).

'YT' and the Australian Taxation Office (Freedom of information) [2021] AICmr 73
FREEDOM OF INFORMATION – whether reasonable steps taken to find documents – (CTH) Freedom of Information Act 1982 s 24A.

Lisa Cox and Department of Agriculture, Water and the Environment (Freedom of information) [2021] AICmr 72
FREEDOM OF INFORMATION – whether disclosure would prejudice lawful methods or procedures – whether documents contain deliberative matter prepared for a deliberative purpose – whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency – whether disclosure of personal information unreasonable – whether contrary to public interest to release conditionally exempt documents – (CTH) Freedom of Information Act 1982, ss 11A(5), 37(2)(b), 47C, 47E(c), 47E(d) and 47F.

'YS' and The Treasury (Freedom of information) [2021] AICmr 71
FREEDOM OF INFORMATION – whether reasonable steps taken to find documents – (CTH) Freedom of Information Act 1982 s 24A.

'YR' and Tertiary Education Quality and Standards Agency [2021] AICmr 70
FREEDOM OF INFORMATION – whether reasonable steps taken to find documents – whether documents contain commercially valuable information – (CTH) Freedom of Information Act 1982 ss 24A and 47(1)(b).

'YQ' and Airservices Australia (Freedom of Information) [2021] AICmr 69
FREEDOM OF INFORMATION – whether material in the documents is irrelevant to the request – whether reasonable steps taken to find documents – whether disclosure of personal information unreasonable – (CTH) Freedom of Information Act 1982 ss 22 24A and 47F.

Raiz and Professional Services Review [2021] AATA 4360
FREEDOM OF INFORMATION – review of decision of Professional Services Review that documents are partially or wholly exempt – documents relate to investigations of Professional Services Review into applicant’s possible inappropriate medical practice – documents conditionally exempt under sections 47C and 47E(d) of the Freedom of Information Act 1982 – documents exempt under s 42 of the Freedom – consideration of immunity provisions – disclosure of documents would be against the public interest – the decision under review is affirmed
Freedom of Information Act 1982 (Cth); Health Insurance Act 1973 (Cth).

Emanuel Exports Pty Ltd; EMS Rural Exports Pty Ltd and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 4393
AGRICULTURE, WATER AND THE ENVIRONMENT – application 2018/5307 – live export of sheep – cancellation of live-stock export licence.
STATUTORY INTERPRETATION – meaning of “integrity” – meaning of “competence” – use of the present tense – temporal element – “person who participates” held to describe the person participating in the management or control of the business at any time. Acts Interpretation Act 1901 (Cth) ss 7(2), 7(2)(c), 7(2)(e); Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1), 33(1)(c), 39, 43(1), 62(4).

Knowles v Secretary, Department of Defence [2021] FCAFC 215
ADMINISTRATIVE LAW – appeal from decision of primary judge dismissing applications made under the Privacy Act 1988 (Cth) for access to and correction of certain information – whether Australian Privacy Principles (APP) 12 and 13 require decision by agency within 30 days – where APP 12 and 13 only require response action within 30 days – whether primary judge erred in declining to grant discretionary relief – where no utility in appellant’s applications – where appellant was able to access adequate alternative remedies – no House v The King error identified by appellant –whether respondent had engaged in bad faith – consideration of standard of proof for allegations of bad faith – where inference to be drawn is that the respondent acted in good faith – whether APP 13.1 is prescriptive in steps to be taken by an agency – where “correct” can conceivably embrace deletion but not necessitate it – appeal dismissed.
COSTS – costs ordered against the appellant by the primary judge that costs follow the event on dismissal – where Court recognises that there are circumstances meriting departure from usual cost outcome – where current proceeding only concerns private interests – where no error of principle in exercise of costs discretion by primary judge demonstrated – costs also awarded against appellant on appeal.

Bibawi v Australian Human Rights Commission [2021] FCA 1476
HUMAN RIGHTS – consideration of an application for judicial review of a decision of the Australian Human Rights Commission by which the decision‑maker concluded that the applicant had not made a “complaint” that satisfied the requirements of s 46P of the Australian Human Rights Commission Act 1986 (Cth).
ADMINISTRATIVE LAW – consideration of whether a decision‑maker on behalf of the Australian Human Rights Commission fell into reviewable error in reaching a decision that an applicant had not made a “complaint” that satisfied the requirements of s 46P of the Australian Human Rights Commission Act 1986 (Cth).

Dutton v Bazzi [2021] FCA 1474
DEFAMATION – publication of a tweet with a hyperlink to an article – whether four imputations alleged by the Applicant were conveyed by the Tweet – consideration of the ordinary reasonable reader’s understanding of the statement “the Applicant is a rape apologist” – imputation that the Applicant “excuses rape” found to be conveyed by the publication.
DEFAMATION – defences – defence of honest opinion pursuant to s 31 of the Defamation Act 2005 (NSW) and the common law defence of fair comment on a matter of public interest – whether the impugned statement was a statement of fact or opinion – whether the opinion was based on proper material – whether the matters relied upon by the Respondent were referred to in the impugned matter or otherwise notorious – lack of rational relationship between the matters relied upon and the opinion the Respondent claimed to have held – whether the Applicant proved the Respondent did not honestly hold the opinion in the publication pursuant to s 31(4) of the Defamation Act.
DAMAGES – s 34 of the Defamation Act – consideration of the relationship between the harm suffered by the Applicant and the damages to be awarded – the extent to which awards of damages in other cases should be considered – consideration of the extent of the publication – claim for aggravated damages rejected.
DEFAMATION – remedies – claim for injunctions to restrain the Respondent permanently from publishing the impugned matter and the imputations the Court has found to be conveyed in the publication – claims for injunctions rejected. Evidence Act 1995 (Cth) s 140(2) Racial Discrimination Act 1975 (Cth) s 9(1) Uniform Defamation Acts ss 4, 6, 25, 26, 30, 31, 34, 36Defamation Act 2005 (NSW) s 31.

James Bowers v Judicial Commission of New South Wales [2021] NSWSC 1570
ADMINISTRATIVE LAW – particular administrative bodies – complaint-handling body – Judicial Commission of New South Wales.
ADMINISTRATIVE LAW – procedural fairness – whether on the proper construction of the legislation the administrative body was required to accord procedural fairness to a complainant – duty to accord procedural fairness to complainant but with limited content – whether the complainant was given reasonable opportunity to advance the basis of the complaint – whether complainant suffered practical injustice.

Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to three offences including using carriage service to menace, harass or cause offence – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence – District Court allowed appeal imposing a lesser full-time custodial sentence – whether District Court fell into jurisdictional error when rejecting submission that sentence be served by intensive correction order – significance of community safety being paramount consideration – significance of requirement to consider whether intensive correction order more likely to address risk of reoffending – part of reasoning in Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 disapproved – error in agreed facts concerning number of text messages giving rise to carriage service offence – agreed facts stated applicant had sent 24,459 text messages – in fact applicant had sent 11,204 messages – whether factual error gave rise to jurisdictional error – no jurisdictional error established and summons dismissed.

Mahmood v Luu [2021] NSWCATAP 390
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – procedural fairness – Tribunal required to consider the case put – appellant required to provide the Appeal Panel with the necessary materials from the hearing before the Tribunal – appellant elected not to provide those materials – inability to consider appeal – residential tenancies.

Majoor v Macquarie University [2021] NSWCATAD 359
ANTI-DISCRIMINATION – indirect – suitable adjustments – ss 49B(1)(b), 49L(2), 49L(4), 49L(5) – victimisation – s50 of Anti-Discrimination Act 1977.

Metleg v Commissioner of Police [2021] NSWCATAD 358
PRACTICE AND PROCEDURE – lodgement of documents under the Administrative Decisions Tribunal Act 1997 (NSW), s 58; application for order that Commissioner of Police not be required to lodge documents relevant to the determination of the application for administrative review – whether appropriate to make orders not requiring the lodgement of those documents because of their confidential nature.
PROCEDURE – suppression orders – confidential nature of material –whether desirable to make orders under Civil and Administrative Tribunal Act 2013 (NSW), s 64 – extent of orders necessary.

Ford v Commissioner for Corrective Services of New South Wales [2021] NSWSC 1541
ADMINISTRATIVE LAW – application for judicial review – Commissioner of Corrective Services’ directions subjecting inmate to urinalysis – broad drug testing discretion – claimed psychological impediment to provide urinalysis unfounded on the evidence – torture – prohibitions on torture as custodial punishment – legal unreasonableness.

Howlett v Moree Plains Shire Council [2021] NSWCATAD 354
ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision to refuse access to information – redaction of names of petitioners to a local authority – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure.

Towers v Awabakal Local Aboriginal Land Council [2021] NSWCATAP 380
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – jurisdictional error – residential tenancy – residential tenancy agreement terminated by prior order of the Tribunal – jurisdictional error in purporting to terminate residential tenancy agreement which had been terminated by prior order of the Tribunal.
APPEALS – point not taken below – conduct of trial – had point been taken other party could possibly have called evidence to meet the point or conducted hearing differently – advancing party precluded from taking point for the first time on appeal.

Legislation

Commonwealth

Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting and the Robson Rotation) Bill 2021
03 December 2021 – a Bill for an Act to amend the law relating to elections in respect of ballot papers and to provide for optional preferential voting and ensure voter choice.

Illegal Detention of Australian Journalists (Free Julian Assange) Bill 2021
House of Representatives introduced and read a first time 29 November 2021. Discharged from Notice Paper: In accordance with House Standing Order 116(a) 29 November 2021. The Bill seeks to clearly define ‘journalism’ to include conduct engaged in the regular course of legitimate journalism, such as publishing and passively receiving information. This includes conduct engaged in for the purpose of journalistic activity that would not be subject to an offence in Australia.

Crimes Amendment (Remissions of Sentences) Bill 2021
Finally passed both Houses 01 Dec 2021. Amends the Crimes Act 1918 to: Repeal section 19AA which applies remissions or reductions under state or territory laws to federal sentences; and make consequential amendments. The repeal of section 19AA of the Crimes Act is necessary in order to address the significant risks to community safety as a result of remissions, known as emergency management days, being granted in high numbers to federal offenders under Victorian laws since the beginning of the COVID-19 pandemic.

Electoral Legislation Amendment (Annual Disclosure Equality) Bill 2021
Finally passed both Houses 02 Dec 2021. Amends the Commonwealth Electoral Act 1918 to: Extend the application of the foreign donations framework to current sitting members of the House of Representatives and Senators; require members of the House of Representatives and Senators who receive gifts for the purpose of incurring electoral expenditure or creating or communicating electoral matter to lodge an annual return with the Australian Electoral Commission; and extend the period for which a person is taken to be a candidate by an additional six months for the purpose of the disclosure period for candidate and Senate group returns and for restrictions on receiving foreign donations.

Electoral Legislation Amendment (Contingency Measures) Bill 2021
Finally passed both Houses 02 Dec 2021. Amends the Commonwealth Electoral Act 1918 to: Implement certain recommendations of the Joint Standing Committee on Electoral Matters' Report of the inquiry on the future conduct of elections operating during times of emergency situations by enabling the Electoral Commissioner to make limited operational modifications by legislative instrument where an emergency declaration has been issued under a Commonwealth law and moving the existing power to adjourn or suspend polling at a polling place or pre-poll voting office from local polling booth presiding officers to the Electoral Commissioner; delay the commencement of the scrutiny for a House of Representatives election for a Division where polling has been adjourned or temporarily suspended; prevent scrutineers and Australian Electoral Commission officers from disclosing the results of a Senate election in a Division where polling has been adjourned; and make minor amendments in relation to the cut-off date for postal vote applications and the format of postal vote certificates.

Electoral Legislation Amendment (Candidate Eligibility) Bill 2021
Registered 29 Nov 2021 Introduced HR 25 Nov 2021. A Bill for an Act to amend the law relating to elections in respect of the checklist for nomination of candidates – Schedule 1 amends Part XIV of the Electoral Act, and Form DB of Schedule 1, to simplify the Qualification Checklist and to clarify when a response to a question is mandatory. The Qualification Checklist is also more streamlined with fewer questions.

Autonomous Sanctions Amendment (Thematic Sanctions) Bill 2021
Senate 24 November 2021 the Bill makes clear that autonomous sanctions regimes, established under the Autonomous Sanctions Regulations 2011 (the Regulations), can be either country-specific or thematic.

Act Compilation

Independent National Security Legislation Monitor Act 2010
30/11/2021 – Act No. 32 of 2010 as amended.

Australian Human Rights Commission Act 1986
22/11/2021 – Act No. 125 of 1986 as amended.

Regulations

Competition and Consumer Amendment (Consumer Data Right) Regulations 2021
30/11/2021 – this instrument amends the Competition and Consumer Regulations 2010 to exempt the Australian Energy Market Operator (AEMO) from four privacy safeguard obligations, and in circumstances where AEMO provides Consumer Data Right data to a retailer.

NSW

Regulations and other miscellaneous instruments
Electoral Funding Amendment (Political Donations Disclosure Period) Regulation 2021 (2021–733) – published LW 3 December 2021
Liquor Amendment (Special Events Extended Trading) Regulation 2021 (2021–734) – published LW 3 December 2021
Public Health Amendment (COVID-19 Penalty Notice Offences) Regulation (No 7) 2021 (2021–735) – published LW 3 December 2021
Public Health Amendment (COVID-19 Penalty Notice Offences–Air Transportation Quarantine) Regulation 2021 (2021–719) – published LW 1 December 2021
Strata Schemes Management Amendment (COVID-19) Regulation (No 3) 2021 (2021–721) – published LW 1 December 2021
Administrative Arrangements (Administration of Acts–Amendment No 4) Order 2021 (2021–686) – published LW 26 November 2021
Electoral Funding (Adjustable Amounts) (Administrative and New Party Policy Development Funding) Notice 2021 (2021–687) – published LW 26 November 2021
Surveillance Devices Amendment (Body-Worn Recording Devices) Regulation 2021 (2021–697) – published LW 26 November 2021

Bills introduced Non-Government – 26 November 2021
Children and Young Persons (Care and Protection) Amendment (Family is Culture Review) Bill 2021

Bills passed by both Houses of Parliament – 26 November 2021
Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021
Stronger Communities Legislation Amendment (Children) Bill 2021

Bills assented to
Customer Service Legislation Amendment Act 2021 No 32 – assented to 29 November 2021
Electronic Transactions Amendment (Remote Witnessing) Act 2021 No 33 – assented to 29 November 2021
Service NSW (One-stop Access to Government Services) Amendment (COVID-19 Information Privacy) Act 2021 No 35 – assented to 29 November 2021
Public Spaces (Unattended Property) Act 2021 No 38 – assented to 29 November 2021
Modern Slavery Amendment Act 2021 No 39 – assented to 29 November 2021
Law Enforcement Conduct Commission Amendment Act 2021 No 40 – assented to 29 November 2021
Electoral Amendment (COVID-19) Act 2021 No 42 – assented to 29 November 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.

Published by:

Simona Njaim

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