04 April 2018
11 min read
Published by:
Law Reform Commission to review access to digital assets after death
The New South Wales Law Reform Commission (the Commission) is inviting public submissions as part of its review and report on the laws affecting access to a person's digital assets if they die or become incapacitated. Digital assets are an individual's digital property and electronic communications, and include online bank accounts, cryptocurrency, social media accounts and blogs. Submissions are due 1 June 2018.
There is currently no law in Australia addressing the ability of family members or fiduciaries to access a person's digital assets upon their death or incapacity. Conflicts arise in the context of user agreements which generally impede surviving family members and fiduciaries from accessing a deceased person's digital assets, that is, access is currently determined by contract and private international law.
Despite the absence of specific Australian legislation, there are several relevant legislated areas which will assist the Commission make recommendations for a new law. These areas include intellectual property, privacy, crime, estate administration, wills, succession and assisted-decision making.
The Commission's terms of reference include making a recommendation whether NSW should enact legislation about who may access a person's digital assets after they die or become incapacitated and in what circumstances.
International laws
Although not directly analogous to the Commission's focus on deceased or incapacitated persons, the United States of America and Canada have developed laws which establish how an individual's digital assets are managed.
The Revised Uniform Fiduciary Access to Digital Assets Act (2015) has been enacted in 38 American states and enables individuals to provide instructions on the management and dispossession of their digital assets. However, the American definition of "digital assets" only includes electronic records in which the individual has a property right or interest. Where an individual's instructions address the ability of family members or fiduciaries to access their digital assets upon their death or incapacity, these instructions are prioritised over service access agreements. However, if the individual's instructions do not explicitly grant fiduciary access to their digital assets, then fiduciaries can only access a record of the individual's electronic communications but not their content. Where there are no instructions, the terms of the service agreement will be followed.
The Uniform Access to Digital Assets by Fiduciaries Act (2016) is a Canadian statute which provides fiduciaries with the right to access digital assets. Bearing close similarity to the Australian definition, digital assets include any type of electronically stored information. This includes content uploaded on a website. However, fiduciaries do not own the asset and are prohibited from undertaking transactions with the assets.
Considerations
The Commission will consider:
The review and its recommendations will affect the public sector as well as the private sector as an unprecedented amount of information is now created, stored and shared online. For example, the Commonwealth government's consolidated online services platform, myGov, enables registered users to upload their documents to government services including Medicare and the Australian Taxation Office and receive documents electronically. Transport for NSW's digital ticketing system also gives rise to digital assets associated with user accounts. Accordingly, matters that have until now not been provided for in, for example user agreements in respect of such services will be impacted by any law reform arising from the Commission's recommendations and if adopted will require a range of policies and contractual provisions to deal with these user rights and consequential government obligations.
Editorial: Christine Jones, Lyn Nicholson, Eleanor Grounds & Christopher Yong
NSW Government Lawyers Linkedin Group
To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to those employed in the public sector.
New Deputy Director of Public Prosecutions
Attorney General Mark Speakman today announced the appointment of Peter McGrath SC as a Deputy Director of Public Prosecutions for NSW. He commenced as Deputy Director of Public Prosecutions on 3 April 2018 (28 March 2018). More...
Review of digital assets after death laws
The NSW Law Reform Commission will examine laws that affect access to a person’s social media accounts and other digital assets after they die or become incapacitated, Attorney General Mark Speakman announced today (27 March 2018). More...
PCA: Industry responds to developer donation ban Bill
The Property Council has provided a submission in response to the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill 2018. The Bill, which seeks to give effect to the Government's proposed ban on political donations from property developers, has been opposed by the Property Council on the basis that it singles out the property sector for inequitable treatment under electoral laws, and unduly brands Queensland's biggest non-government employer as a corruption risk (22 March 2018).
Allied Construction penalised for calling numbers on the Do Not Call Register
Solar power business Allied Construction and Roofing Pty Ltd has paid a $21,600 infringement notice for calling numbers on the Do Not Call Register without consent (22 March 2018). More...
Law Council consults on Review of Australian Solicitors' Conduct Rules
The Law Council is undertaking a review of the Australian Solicitors' Conduct Rules. This is the first comprehensive review of the Rules since they were first promulgated in June 2011. The Law Council's Professional Ethics Committee has developed a Consultation Discussion Paper for the Review and invites comments and submissions on the issues raised and discussed. Read more here. The closing date for Submissions is 31 May 2018, which may be lodged here.
Law Council of Australia Submissions
21 March 2018: Review of the Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018
21 March 2018: Additional submission on National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017
(EFI Bill)
AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions:
Issue No. 11/2018, 26 March 2018
AIJA News
Designed to keep members informed of the Institute's activities and also to bring its work to the attention of a wider national and international audience, the latest edition is here.
HCA: Review of Registry Operations and Case Management System
The High Court is reviewing its registry operations and case management system with a particular emphasis on current and future electronic needs. To participate in the review, please complete the online form by Friday, 6 April 2018. More...
Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017
The Senate referred the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017
to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 8 May 2018. Submissions closed on 28 February 2018. More...
The adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying
On 7 September 2017 the Senate referred the below matter to the Legal and Constitutional Affairs References Committee for inquiry and report by 29 November 2017. On 19 October 2017 the Senate extended the committee's reporting date to the last sitting day in March 2018. More...
ICAC: Public inquiry into allegations concerning former Canterbury City Council
The ICAC will hold a public inquiry commencing on Monday 16 April 2018 as part of an investigation it is conducting into allegations concerning the former Canterbury City Council (Operation Dasha) (26 March 2018). More...
ICAC: Prosecution briefs with the DPP and outcomes
Tables of prosecution briefs with the DPP and outcomes. Last updated 28 March 2018. More...
Land and Environment Court: Pilot Duty Lawyer Scheme
A duty lawyer scheme will be trialled in the Land and Environment Court for a 6 month period commencing 6 April 2018. The pilot scheme is aimed at assisting self-represented litigants in Classes 4 and 5 of the Court's jurisdiction. If it proves successful it may be broadened to other Classes or types of proceedings in the Court.
NSW Law Reform Commission: Access to digital assets upon death or incapacity
The Attorney General has asked us to review and report on the laws that affect access to a NSW person's digital assets after they die or become incapacitated. We invite preliminary submissions on what this review should cover. The deadline for preliminary submissions is 1 June 2018. (Terms of reference) More... (Background) More...
Note: The review will consider relevant NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.
LawAccess NSW makes some noise about noise
People who have a noise dispute with their neighbours can find clear, simple, legal information about how to deal with their dispute thanks to a new topic on the LawAccess NSW website. The new 'Noise' topic contains tips and information for people who have an issue with noise coming from their neighbour as well as people whose neighbour has complained about noise coming from them (22 March 2018).
NCAT: Feedback Assist' improving customer service
Visitors to the NCAT website can now provide feedback and suggestions using the Feedback Assist tool (26 March 2018). More...
JUDCOM
29 March 2018: Sentencing Bench Book Update 40 published
21 March 2018: Civil Trials Bench Book Update 35 Published
Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying
Senate Legal and Constitutional Affairs References Committee: 28 March 2018
This report recommends that the Australian government consult state and territory governments, non-government organisations, and other relevant stakeholders, to develop and publicise a clear definition of cyberbullying that recognises the breadth and complexity of the issue. More...
Foreign bribery
Senate Economics References Committee; Parliament of Australia: 28 March 2018
This report evaluates reform options to strengthen Australia's foreign bribery framework and examines the relevant experience in other jurisdictions. It assesses the need for increased transparency around beneficial ownership and the benefits of introducing a debarment framework in Australia. More...
Pathways to Justice Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples
Australian Law Reform Commission: Tabled 28 March 2018
The ALRC was asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander people in custody. More...
Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73
ADMINISTRATIVE LAW - public access to government information - Request for information concerning a complaint under Part 8A of
Police Act 1990 alleging police misconduct - police required to provide information to investigation - Personal information - whether prejudice to the effective exercise of an agency's functions - public interest in transparency and accountability - balancing public interest considerations -confidentiality of complainant's identity under Part 8A of Police Act 1990.
Budrodeen v Commissioner of Victims Rights [2018] NSWCATAD 67
ADMINISTRATIVE LAW - merits review- Victims Rights and Support - restitution order against person convicted of relevant offence - dispute regarding culpability despite a plea of guilty and conviction.
Gilleland v Commissioner of Police, NSW Police Force [2018] NSWCATAD 68
ADMINISTRATIVE REVIEW - government information - applicant sought access to a copy of a video recording of an incident involving the applicant and a member of her family - a copy of the video recording was provided to the respondent at the time police attended the home of the applicant following the incident - applicant granted access by viewing the video at the offices of the respondent - respondent refused to provide a copy of the video as requested by the applicant - whether there was an overriding public interest against disclosure of the video in the form requested by the applicant.
New South Wales
Bills assented to
Justice Legislation Amendment Act 2018
No 4 - Assented to 21 March 2018
The Act makes a number of amendments to Acts relating to courts and crimes. More...
Liquor and Gaming Legislation Amendment Act 2018
No 7 -” Assented to 21 March 2018.
Casino Control Amendment Act 2018
No 8 - Assented to 21 March 2018.
For the full text of Bills, and details on the passage of Bills, see Bills.
Proclamations commencing Acts
Gaming Machines Amendment (Leasing and Assessment) Act 2018
No 9 (2018-111) - published LW 29 March 2018.
Liquor and Gaming Legislation Amendment Act 2018
No 7 (2018-112) - published LW 29 March 2018.
Regulations and other miscellaneous instruments
Law Enforcement (Powers and Responsibilities) Amendment (Crime Scenes in Rural Areas) Regulation 2018
(2018-113) - published LW 29 March 2018.
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.
Published by:
