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NSW Government Bulletin summer edition: The more things change

24 January 2024

#Government, #Data & Privacy, #Property, Planning & Development, #Workplace Relations & Safety

Published by:

Lyn Nicholson, Cameron Sheather, Helen Sims

NSW Government Bulletin summer edition: The more things change

One of the few things we can rely on is change. At the beginning of a new year of challenges, we refresh key concepts and skills to arm NSW Government lawyers for the year ahead.

Our summer edition is again a taster for our annual NSW Government lawyers CLE intensive, which returns as an in-person event on 22 February 2024, offering a range of topics and CPD core units. During the day, our legal panel will discuss:

Click here for the full program and event registration.

Preventing workplace discrimination and sexual harassment – steps for government

In October 2023, SafeWork NSW released its Respect at Work Strategy 2023–2027 (Strategy) to educate and encourage organisations to adopt a systematic and proactive approach to address sexual harassment in the workplace. This follows the new Work Health and Safety (WHS) Regulations introduced earlier.

The Strategy outlines a four-year plan to:

  • educate organisations about their obligations
  • help organisations build better capabilities to prevent and respond to sexual harassment in the workplace
  • assist organisations to take effective and systematic actions to prevent and respond to workplace sexual harassment
  • provide greater regulation of the obligation on organisations to protect their employees from sexual harassment.

The Strategy is centred around support for organisations to take a ‘prevention-led’ approach, build a strong safety culture, and promote consultation, collaboration and engagement to prevent sexual harassment.

A targeted regulatory approach will also be taken, with an initial focus on hospitality, health care and retail businesses due to the historical prevalence of reported sexual harassment and high-risk workers, such as young workers, women and workers from minority groups. However, the regulator will also consider government departments and agencies when implementing its strategy.

Overlapping laws dealing with sexual harassment and discrimination

At state and federal levels, laws have been increasingly updated and expanded to address the prevalence of sexual harassment and discrimination in the workplace. These changes have been made to the Fair Work Act 2009 (Cth) and Sex Discrimination Act 1984 (Cth) at the federal level, and to the WHS Act at the state level.

To help organisations, including government departments and agencies, to more clearly understand the range and operation of these laws, SafeWork NSW has set out a summary of the different obligations on government departments and agencies and the approach of the agencies that administer or enforce those obligations in their Regulation map for NSW businesses.

In our upcoming CLE program, we will delve into the latest discrimination laws, draw lessons from recent case studies and present practical measures to assist government departments and agencies in meeting their obligations. Register for our session on ‘Preventing discrimination and sexual harassment: Steps NSW government departments and agencies should take to comply with law’ here.

Author: Michael Selinger

Privacy – recent decisions and reforms on reasonable measures

With high-profile data breaches making headlines and recent reforms in the data and privacy space, privacy compliance has become a top priority for organisations, including government, in 2024. 

At present, the legislation applicable to data and privacy, namely the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the Privacy Act 1998 (Cth), contain some murky concepts and standards. Violating these could result in an organisation breaching an information protection principle and becoming liable for damages.

The Federal Government’s response to the Privacy Act Review Report in September 2023 indicates there will soon be important changes that will affect how organisations structure themselves, their IT systems and information management channels this year. These changes are likely to be reflected in NSW. Therefore, government agencies need to understand what reasonable precautions they can take to ensure they lawfully obtain and manage personal information, as well as safeguarding against unlawful access, use or disclosure of personal information.

In this year’s CLE program, our session will dive into the government’s response and discuss the proposed ‘fair and reasonable’ test and its implications for compliance. We will also explore the emerging principles and standards related to the reasonable test in the PPIP Act shaped by decisions from the NSW Court of Appeal and the NSW Civil and Administrative Tribunal (NCAT) and whether measures need to be stronger for particularly sensitive personal information.

We will also address the systemic areas that are often weak points when representing agencies accused of having inadequate privacy protections in place and provide suggestions on how that risk can be reduced, as well as how to handle the uncertainties associated with defending an NCAT review.

As Australia’s privacy and data protection regimes move closer to international standards such as the GDPR, departments and agencies should proactively prepare for the upcoming legislated changes. This includes minimising the cost of system uplifts and enhancing overall data and privacy strategies. If you would like to join our discussion, register here.

Authors: Helen Sims & Lyn Nicholson

Option deeds remain popular, but there are trips and traps

Option deeds remain a popular way of buying and selling property, but recent stamp duty reforms mean it necessary to be aware of certain mistakes when drawing up option deed agreements.

Government entities are often asked to enter into an option deed arrangement – a benefit being the ability to acquire land at a future date for a fixed price.

Option deeds generally fall into two categories:

  • a call option, which gives the buyer the right to purchase property at a future date at an agreed price
  • a put option, which gives the seller the right to force the buyer to purchase the property at the agreed price within the specified timeframe.

Many entities also enter into a combination of the two, giving both parties the flexibility to choose whether to buy or sell.

The impact of stamp duty reforms

Recent stamp duty reforms in Australia, particularly those introduced in New South Wales in May 2022, have significantly impacted the use of option deeds compared to traditional contracts for sale.

These reforms result in increased upfront costs because the reforms apply stamp duty to call option fees, making them more expensive upfront. This deters buyers from using options solely for price speculation or as a safety net while securing finance.

Reforms have also led to reduced flexibility because the duty payable is based on the full purchase price, even if the option isn't exercised. This reduces the flexibility of option deeds, particularly for developers needing to secure land without immediate purchase commitment.

It’s important to remember that while governments are not liable for duty, the reforms impact the counterparty’s resulting liability, and this can have a knock-on effect on any commercial negotiation the government enters into.

Other easy-to-fall-into option deeds traps

There are quite a few other mistakes entities entering into option deeds can make, including vague descriptions of the property, missing conditions, and ambiguity around price. Getting these aspects of an option deed wrong can mean disputes arise, and the possibility the deed could be declared invalid.

It’s also important to watch the language the deed is drafted in – it needs to be formal – and anyone entering an option deed needs to ensure it’s been properly registered and witnessed.

Government lawyers should also consider exit strategies and how the deed can be terminated if circumstances change, as well as understanding of market norms and making sure your interests are protected.

We will consider the above and other common trips and traps when transacting with option deeds. If you are interested, register here.

Author: Cameron Sheather

Disclaimer
The information in this article 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 article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Lyn Nicholson, Cameron Sheather, Helen Sims

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