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NSW Government Bulletin

09 June 2021

#Government, #Data & Privacy

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NSW Government Bulletin

Regulatory advice for government agencies on Digital Restart Fund projects

On 28 May 2021, as part of Information Awareness Month, the NSW Information and Privacy Commission issued joint guidance from the NSW Information Commissioner and the NSW Privacy Commissioner on issues for agencies who are considering projects under the recently announced NSW Government Digital Restart Fund, which will provide $1.6 billion in funding for digital transformation projects.

This guide, accessible here, is useful in that it considers specifically the types of projects likely to be seeking funding and sets out examples of risks together with recommended risk mitigation strategies. It also cross-references to the various obligations of agencies under the Government Information (Public Access) Act 2009 (GIPA).

Importantly, where digital projects are being undertaken and non-government third parties are involved in the design of the project, there is a risk that the initiative will not comply with GIPA, or that the agency will not ensure that its obligations under the Privacy and Personal Information Protection Act 1998 are passed through to that third party.

Overall, the guidance is practical and merges legal design methodology with privacy by design principles and provides clear and helpful examples of risks and mitigation strategies.

Author: Lyn Nicholson

In the media

Release of the Foster Report
The Government has released the consultation report provided by Stephanie Foster PSM into the processes and procedures relating to serious incidents in the parliamentary workplace. This report has made some significant findings and recommendations to improve how serious incidents are prevented and dealt with in the parliamentary workplace (04 June 2021).  More...

Australia-US to collaborate in fight against phone scams
Australia and the United States will work together more closely to combat unlawful robocalls, unsolicited texts and phone scams under a new agreement signed by the two country’s respective communications regulators (04 June 2021).  More...

Supporting people with cognitive impairment
People with a cognitive impairment will receive greater support across the criminal justice system following the NSW Government's $28 million investment in the statewide Justice Advocacy Service and a nation-leading court-based diversion program (03 June 2021).  More...

Domestic violence in NSW in the wake of COVID-19: Update to December 2020
BOCSAR found no compelling evidence of an increase in domestic violence assaults reported to NSW Police coinciding with the introduction of strict social isolation requirements, or as restrictions eased up to December 2020 (03 June 2021).  More...

World-first app to help address domestic violence in NSW
A world-first app aimed at holding domestic violence perpetrators to account and increasing their compliance with protection orders to help safeguard victims has been unveiled (02 June 2021).  More...

Legal profession leading change on domestic and family violence
President of the Law Council, said the Law Council convened the roundtable following the findings of several recent inquiries that called for the legal system to be better equipped to respond to family violence and protect vulnerable individuals. Participants agreed that problems caused by the differing definitions of domestic and family violence between jurisdictions should be further considered (30 May 2021).  More...

Australian court finds government has duty to protect young people from climate crisis
The federal court of Australia has found the environment minister, Sussan Ley, has a duty of care to protect young people from the climate crisis in a judgment hailed by lawyers and teenagers who brought the case as a world first (27 May 2021).  More...

Australians deserve tech that protects their rights
A new report by the AHRC calls for far-reaching changes to ensure governments, companies and others safeguard human rights in the design, development and use of new technologies like artificial intelligence (AI). The Human Rights and Technology final report, makes 38 recommendations to ensure human rights are upheld in Australia’s laws, policies, funding and education on AI (27 May 2021).  More...

New judge appointed to the District Court
A new judge has been appointed to the District Court of NSW, stepping up from her role as a magistrate in the Local Court. Attorney General Mark Speakman said Magistrate Karen Robinson will be sworn in as a judge of the District Court on 15 June (26 May 2021).  More...

Consent law reform
Sexual consent laws will be strengthened and simplified under NSW Government reforms designed to protect victim-survivors and educate the community (25 May 2021).  More...

In practice and courts

Commonwealth parliamentary review now open for submissions and interviews: Sex discrimination
The AHRC is inviting contributions for its independent review into Commonwealth parliamentary workplaces, accepting written contributions from groups covered by the review’s Terms of Reference. The review aim is to ensure all Commonwealth parliamentary workplaces are safe and respectful and that our national Parliament reflects best practice in the prevention and handling of bullying, sexual harassment and sexual assault. Make a written submission here. The Department said it would receive submissions on its consultation paper until 9 July. The Department’s 17-page consultation paper, including information on how to have a say, can be accessed here.

Attorney General consultations

National register of enduring powers of attorney
Closing date 30 June 2021. Attorneys-General from each Australian jurisdiction have agreed to consult on possible arrangements for a National Register of enduring powers of attorney. We have prepared a consultation paper to seek your views 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. Click here to read the latest update.

Law Council of Australia submissions
04 June 2021 – Law Council. Supplementary submission: Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020.
28 May 2021 – Law Council. Australia’s Humanitarian Program 2021–22.
25 May 2021 – Law Council. Supplementary submission: Inquiry into extremist movements and radicalism in Australia.

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Click here to read Issue No. 11/2021, 31 May 2021.

OAIC consultations

National Health (Privacy) Rules 2018 review
The closing date for submissions is 4 June 2021. Read more here.

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.

ALRC judicial impartiality consultation paper 2021
The inquiry would look at judges in the High Court, Federal Court, Family Court and Federal Circuit Court. Submissions are open until 30 June. The ALRC was expected to deliver its report to the Attorney-General by 30 September. The Paper can be accessed here.

Regulator performance guide for consultation
The guide will empower regulators to demonstrate and report on best practice performance that is in line with the Government’s expectations and supports investment and growth. Click here to read more.

ANAO consultations
Due to table: May 2021. Open for contribution: Administration of the National Bushfire Recovery Agency. The objective of this audit is to assess the effectiveness of the National Bushfire Recovery Agency and its administration of the National Bushfire Recovery Fund.
Due to table: May 2021. Open for contribution: Australian National University’s Governance and Control Frameworks. The objective of this audit is to examine the effectiveness of the Australian National University’s governance and control frameworks.

Finance and public administration legislation Committee
Operation and management of the Department of Parliamentary Services. On 11 May 2021, the reporting date was extended to 30 June 2021.

Legal and constitutional affairs legislation Committee
Family Law Amendment (Federal Family Violence Orders) Bill 2021 [Provisions]. The deadline for submissions to this inquiry is 18 June 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. Read more here.

NSW

JUDCOM: Civil trials bench book
4 June 2021 – [2–0500] alternative dispute resolution; [2–1000] search orders; [2–2600] stay of pending proceedings; [2–3900] limitations; [2–5400] parties to proceedings and representation. [2–5900] security for costs; [2–6900] summary disposal and strike out applications. Read more here.

The Information Commissioner and Privacy Commissioner have published joint regulatory advice
The Information Commissioner and Privacy Commissioner have published joint regulatory advice entitled ‘Digital Restart Fund: Assessment information and privacy impacts’ for NSW public sector agencies as part of Information Awareness Month 2021. Click here for more information.

Costs disputes – uniform Law – indexed amounts
Sections 291, 292 and 293 of the Legal Profession Uniform Law (NSW) relate to costs disputes. The amounts were increased as a result of indexation for the financial years 1/7/2019 – 30/6/2020 and 1/7/2020 – 30/6/2021. 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, wherever possible, list matters for hearing by audio link or audio-visual link. Procedural Direction 10 is available here.

Consent proposals could result in significant injustice
The proposals announced by the NSW Attorney General in relation to consent in sexual assault matters are likely to result in significant injustice, the President of the New South Wales Bar Association Michael McHugh SC said in a media statement. The President's media release is available here and the NSW Government's media statement can be found here.

Consultation: Privacy and Personal Information Protection Amendment Bill 2021 [draft]
If passed, this Bill will introduce a scheme that will ensure greater openness and accountability in relation to the handling of personal information held by NSW public sector agencies. Public submissions can now be made until 18 June on the Have Your Say website. Learn more here.

Latest edition of the Court of Appeal’s Decisions of Interest bulletin
The Decisions of Interest bulletin is a regular publication produced by the Court of Appeal, summarising appellate decisions from Australia and internationally. Read the latest bulletin 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 until 31 December 2021 here.

NCAT digitisation of warrants for possession
From 24 May 2021, all warrants for possession issued by NCAT will be electronically transmitted to the Office of the Sheriff. The new process is part of NCAT's strategy to increase digitisation of its services. Click here to read more.

Published – articles, papers, reports

Postal industry – quarterly update seven: 1 January to 31 March 2021
Ombudsman industry updates: 04June 2021. This update discusses complaint statistics and compensation for lost and damaged parcels, including case studies. Click here for more information.

Understanding our inspection report
Ombudsman industry: 25 May 2021. This factsheet helps agencies understand and act on our reports. See our factsheet oversight of the use of covert, intrusive and coercive powers for more information about our role. Read more here.

New briefing date 
26 May 2021 Recipient Hon Brendan O'Connor MP. Auditor-General Report No 32 2020–21. Cyber Security Strategies of Non-Corporate Commonwealth Entities.

Interim report on key financial controls of major entities
ANAO Report No 40: 02 June 2021. This report is the first in the series of reports for the 2020–21 financial year and focuses on the results of the interim audits, including an assessment of entities’ key internal controls, supporting the 2020–21 financial statements audits. This report examines 25 entities, including all departments of state and a number of major Australian government entities. The entities included in the report are selected on the basis of their contribution to the income, expenses, assets and liabilities of the 2019–20 consolidated financial statements. Read more here.

COVID-19 procurements and deployments of the National Medical Stockpile
ANAO Report No 37: 27 May 2021. The audit examined whether COVID-19 procurements to increase the National Medical Stockpile (NMS) were consistent with the proper use and management of public resources and whether COVID-19 deployments of the NMS were effective. Read more here.

Human rights and technology final report
AHRC: 27 May 2021. Recommendations include stronger community protections against harmful uses of AI – especially when AI is used in high-risk areas such as policing, social security and banking – and the creation of a new AI Safety Commissioner to help lead Australia’s transition to an AI-powered world. Read more here.

Free votes in the Commonwealth Parliament 1950–2021: A quick guide
APH: 21 May 2021. This quick guide contains an updated list of free votes granted by either of the two major parties – the Australian Labor Party and the Liberal Party of Australia – in the Commonwealth Parliament between 1950 and 2021. Read more here

Cases

Edway Training Pty Ltd v SafeWork NSW [2021] NSWCATAD 152
ADMINISTRATIVE LAW – Civil and Administrative Tribunal – administrative review jurisdiction – no jurisdiction to administratively review a decision by Safework NSW to refuse to enter into a contract with a registered training organisation to do general construction induction training in NSW.

McMahon v Northern Beaches Council [2021] NSWCATAD 137
ADMINISTRATIVE LAW – access to information – legal professional privilege.
Government Information (Public Access) Act 2009; Evidence Act 1995 (NSW).
This is an application for review by the Tribunal of the decision of the Respondent, the Northern Beaches Council, which, together with the antecedent local government bodies that were merged into so as to become the Respondent, “the Council”, not to provide access to a number of documents which fall within the scope of a request made by the Applicant in April 2020.

Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149
1. The deemed decision to refuse to deal with the access application is affirmed.
ADMINISTRATIVE LAW – government information – access application – legal professional privilege – waiver – whether overriding public interest against disclosure.
Administrative Decisions Review Act 1997; Evidence Act 1995; Government Information (Public Access) Act 2009.

Williams v University of New England [2021] NSWCATAD 151
ADMINISTRATIVE LAW – access to Government information – Government Information (Public Access) Act 2009 (NSW) – items 1(d), 1(g) and 3(a) of the Table to s14 GIPA Act – whether information provided in confidence – if so, whether it is still confidential – appropriate redaction to avoid the public interest consideration against disclosure under item 3(a) of the Table to s 14 GIPA Act.

SafeWork NSW v SNAP Programs Limited; SafeWork NSW v State of New South Wales (Department of Communities and Justice) [2021] NSWDC 203
1. The non-publication orders and pseudonym orders made by the Court on 27 April 2020 and 29 July 2020 are revoked.
CRIMINAL PROCEDURE – suppression and non-publication orders.
Children (Criminal Proceedings) Act 1987; Court Suppression and Non-Publication Orders Act 2010; Work Health and Safety Act 2011.

Legislation

Commonwealth

Bills

Liability for Climate Change Damage (Make the Polluters Pay) Bill 2021
HR 24/05/2021 – this Bill makes fossil fuel companies liable for climate change damage, giving victims of climate change, such as the 2019–2020 bushfire survivors, the right to bring an action against thermal coal, oil and gas companies for climate change damage. 

Independent Office of Animal Welfare Bill 2021
HR 24/05/2021 – Commonwealth statutory authority with responsibility for the development of animal welfare policy at the Commonwealth level. The office will have a leadership role on matters of animal welfare, as well as the ability to conduct inquiries and reviews into the effectiveness and implementation of our animal welfare laws. 

Acts Compilation

Freedom of Information Act 1982
27/05/2021 – Act No. 3 of 1982 as amended.

Regulations

Telecommunications (Statutory Infrastructure Providers – Circumstances for Exceptions to Connection and Supply Obligations) Determination 2021
27/05/2021 – this instrument determines the circumstances where the connection obligation and the supply obligation do not arise in relation to requests for wholesale broadband services from a carriage service provider to a statutory infrastructure provider for the purposes of the Telecommunications Act 1997.

NSW

Regulations and other miscellaneous instruments
Companion Animals (Adjustable Fee Amounts) Notice 2021 (2021–260) – published LW 3 June 2021.
Electoral Funding (Adjustable Amounts) (Political Donation Caps) Notice 2021 (2021–262) – published LW 4 June 2021.
Electronic Transactions (ECM Courts) Amendment (Online Criminal Registry) Order 2021 (2021–263) – published LW 4 June 2021.
Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Regulation 2021 (2021–250) – published LW 28 May 2021.
Legal Profession Uniform Law (Indexed Amounts) Notice 2021 (2021–248) – published LW 27 May 2021.
NSW Admission Board Amendment (Schedule of Fees) Rule 2021 (2021–259) – published LW 28 May 2021.
Public Health Amendment (COVID-19 Spitting and Coughing) Regulation (No 2) 2021 (2021–251) – published LW 28 May 2021.
Public Notaries Appointment Amendment (Fees) Rule 2021 (2021–256) – published Gazette No 225 of 28 May 2021, n2021–1083.
Residential Apartment Buildings (Compliance and Enforcement Powers) Amendment Regulation 2021 (2021–252) – published LW 28 May 2021.

Proclamations commencing Acts

Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 No 31 (2021–230) – published LW 21 May 2021 – the object of this Proclamation is to commence amendments to the Criminal Procedure Act 1986 that extend case management provisions under the Act so that they apply to District Court prosecutions under the Work Health and Safety Act 2011.

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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