Australia: NSW Government Bulletin - In the media, Practice and courts, Cases and Legislation

In the media

Court reforms judged a winner
A simple change to allow certain offences to be prosecuted in a local court, rather than requiring them to be heard in higher courts, has reduced the workload of the district court by over 1,000 matters in 18 months, according to an evaluation from the NSW Bureau of Crime Statistics and Research (17 August 2021). More...

Forty per cent of Service NSW data breach victims not notified
Nearly 40,000 people whose data was compromised in a massive Service NSW data breach last year will never receive official notification about the incident because of the type of data involved and the agency's policy to deliver "personalised" notices through the post (25 August 2021). More...

Space, robotics among new defence priorities
The federal government has added new sovereign defence priority areas in recognition of the changing nature of technology for the battlefield (27 August 2021). More...

Government keeps robodebt advice secret
The federal government has again blocked the release of documents relating to the robodebt scandal, in an "enormous undermining of public confidence" which could lead to similar failures of public administration in the future, according to a number of senators (26 August 2021). More...

Senate shoots down sovereign capability inquiry
The senate has shot down the federal government's attempt to launch an inquiry into Australia's sovereign capability and critical infrastructure (26 August 2021). More...

'Extraordinary' hacking powers pass Parliament
Legislation handing "extraordinary" new hacking powers to Australian authorities, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021 has passed through parliament with support from the opposition, despite the government not implementing some of the recommendations from the national security committee (25 August 2021). More...

HRLC: Insufficient safeguards in new surveillance law
The Morrison government has rushed through a new law creating sweeping surveillance powers, ignoring crucial recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security that stronger safeguards are needed to protect the privacy of all Australians (25 August 2021). More...

Counter-Terrorism Legislation Amendment (Sunsetting Review And Other Measures) Bill 2021
The Morrison government has welcomed the passage in the parliament of legislation to continue critical powers to respond to the evolving threat posed by terrorism (24 August 2021). More...

DTA ditches digital 'transparency' dashboard
The federal government has shut down its performance dashboard, used to improve digital services and provide transparency to the public, as part of a significant restructuring of its digital agency (24 August 2021). More...

Ombudsman lays down law for follow-ups
The Office of the Commonwealth Ombudsman has issued a factsheet on the extent of implementation of its recommendations by government agencies. In its publication Recommendations implementation report factsheet the office says it periodically publishes reports to ensure agencies take action to address areas of improvement identified in past ombudsman reports (23 August 2021). More...

ACSC calls for back first to protect data
The Australian Cyber Security Centre (ACSC) has advised computer users to back up their online data as "one of the best defences against ransomware" and similar cyber attacks. The ACSC's step-by-step guides on creating a backup can be accessed here (23 August 2021). More...

Australian Bar Association responds to recent commentary about judicial impartiality
The Australian Bar Association notes recent commentary in the media about analyses of the outcomes of decisions reached by individual judges – sitting both by themselves in trials or together on appeals (23 August 2021). More...

Ransomware rise a concern: Privacy Commissioner
Data breaches arising from ransomware incidents increased by 24 per cent in the first half of the year, prompting Australia's Privacy Commissioner to warn that such attacks "are a significant cyber threat" that may be under-reported (23 August 2021). More...

OAIC: Data breach report highlights ransomware and impersonation fraud as concerns
The latest notifiable data breaches report highlights how the OAIC expects entities to prevent and respond to data breaches caused by ransomware and impersonation fraud (23 August 2021). More...

HRLC: Senate votes to ban forced labour imports in vital step to combat modern slavery
The Australian senate has voted to ban the importation of any goods made with forced labour into Australia, in a move that signals cross-party support for stronger measures to prevent Australian companies profiting from modern slavery overseas (23 August 2021). More...

Audited defence program found effective
A performance audit of the Department of Defence's administration of enabling services, specifically, the Enterprise Resource Planning program has found the program has been largely effective, but found there was scope for the department to improve program governance arrangements (20 August 2021). More...

New pilot program to deliver a government-wide data catalogue
The ONDC has received funding in the 2021–22 federal budget to deliver a pilot program to develop data inventories for 20 per cent of Australian government agencies. These data inventories will provide the foundation for a public, searchable catalogue of government-held data assets, providing a starting point for those wishing to seek out government data and apply to the relevant data custodian for safe access to the data (20 August 2021). More...

Government response to the tune review
The Morrison government has released its response to the functional and efficiency review of the National Archives of Australia. Preserving Australia's historic records is crucial to the identity of the nation and the collection includes irreplaceable information about our citizens, such as immigration records, military service records and census data (19 August 2021). More...

Law Reform Commission (ALRC) media statement
Consultation with the public is an important part of the law reform process conducted by the Australian Law Reform Commission (ALRC). The ALRC encourages the public to engage with it and values the contributions it receives from the public and relevant stakeholders (18 August 2021). More...

In practice and courts

APS pay rates in line for a change
The Australian Public Service Commission (APSC) has issued a circular setting out changes to APS pay rates to apply between 1 September this year and 31 August 2022. The full circular 2021/04 can be accessed on the APSC website here (20 August 2021).

ALRC in brief – August 2021
23 August 2021 – the Australian Law Reform Commission co-hosted a seminar with Wolters Kluwer to explore different viewpoints on judicial impartiality outlined in detail here.

ABA KordaMentha concurrent evidence practices survey
KordaMentha and the Australian Bar Association are interested in your views on concurrent evidence practices in Australia. If you have first-hand experience with concurrent evidence and would like to be part of the survey, we welcome your participation. The survey closes on 17 September. You can find more information, and take the survey here (24 August 2021).

Federal Circuit and Family Court of Australia – rules of court – family law, general federal law and bankruptcy
The Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia has advised that new rules regarding the family law and child support jurisdictions and general federal law and bankruptcy proceedings in the FCFCOA have been made and will commence on 1 September 2021. A brief summary of the new rule instruments are outlined here (updated 27 August 2021). Update to the profession No.4: Commencement of the new Federal Circuit and Family Court of Australia (last updated on August 20, 2021).

Update to the family law profession: Commencement of the new FCFCOA
The Family Court of Australia and Federal Circuit Court of Australia released information outlining changes to court operations that will occur on the commencement of the Federal Circuit and Family Court of Australia (FCFCOA) from 1 September 2021. The attached provides an overview of changes to the FCFCOA's harmonised rules, practice directions, forms and website.

Attorney-General appointments
20 August 2021 – reappointments to the Administrative Appeals Tribunal.

ACMA consultation: Consumer vulnerability: Expectations for the telco industry – consultation 27/2021
We want to create a statement of expectations for the telco industry to improve outcomes for vulnerable consumers. Closing date 08 September 2021. Click here for more information.

Department of Infrastructure, Transport, Regional Development and Communications: Draft Online Safety (Basic Online Safety Expectations) Determination 2021 consultation
We are seeking submissions on an exposure draft of the Online Safety (Basic Online Safety Expectations) Determination 2021. The draft determination sets out the government's demands for providers that offer a social media service, "relevant electronic service" or "designated internet service", including the nine principle-based "core expectations" included in the Act. View the consultation and consultation paper. Submissions to the consultation close on 15 October 2021.

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
20 August 2021 – Law Council
CP 345 litigation funding schemes: Guidance and relief
20 August 2021 – Law Council
Inquiry into constitutional reform and referendums
19 August 2021 – Business Law Section
Consumer data right strategic assessment

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. 17/2021, 23 August 2021.

Legal and Constitutional Affairs Legislation Committee
Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
Status: Accepting submissions. Date referred: 17 June 2021. Submissions closed: 20 August 2021. Reporting date: 31 December 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.

Strengthening Australia's cyber security regulations and incentives
On 13 July 2021, the Australian government opened consultation on options for regulatory reforms and voluntary incentives to strengthen the cyber security of Australia's digital economy. Interested stakeholders are invited to provide a submission to the discussion paper, Strengthening Australia's cyber security regulations and incentives. Submissions on the discussion paper can be made via our submission form before 27 August 2021. Click here for more information.

Equitable briefing policy reporting 2020–2021
The 2020–2021 financial year has recently ended, and annual reports of briefing entities who have adopted the Law Council's equitable briefing policy are due by 30 September 2021. If you have adopted the policy as counsel, please provide your annual report for the 2020–2021 financial year using the portal. The Equitable briefing policy reporting template and guidelines provides detailed information on how to how to make a report and includes a reporting template to show the information required.

NSW

COVID-19: Information for attending court – 27 August 2021
The New South Wales Bar Association's consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments. Click here for more information.

NCAT update – increased use of video conference hearings
NCAT's consumer and commercial division will be conducting more hearings over video. From 16 August 2021, all tenancy and general matter conciliation and first listings will be held by video or telephone. Parties will have the option to join the video hearing or dial in. Click here to read more.

Protocols for virtual proceedings
Virtual proceedings are still formal environments and, wherever possible, the usual etiquette and protocols should be observed. The Supreme Court fact sheet on virtual courtrooms includes the following protocols as a guide for practitioners. Read the fact sheet here (09 August 2021).

Supreme Court appointments
11 August 2021 – new Chief Judge at common law appointment.

Costs disputes – uniform law – indexed amounts
Sections 291, 292 and 293 of the Legal Profession Uniform Law (NSW) relate to costs disputes. 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, list matters for hearing by audio link or audio-visual link. Procedural direction 10 is available 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 to 31 December 2021 here.

Published – articles, papers, reports

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 Inquiry Report
Commonwealth of Australia, August 2021. The Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 amends legislation relating to the administration of federal courts and the Administrative Appeals Tribunal.

Notifiable data breaches report
OAIC: 23 August 2021. Reports 43 per cent resulting from cyber security incidents, of the 445 total breaches, 46 were from ransomware, up from 37 notifications in the last reporting period. Click here to read the report.

ANAO Annual Report 2020–21
ANAO: 26 August 2021. This annual report documents the performance of the Australian National Audit Office (ANAO) in the financial year ended 30 June 2021. The report addresses all applicable obligations under the Public Governance, Performance and Accountability Act 2013; the Public Governance, Performance and Accountability Rule 2014; the Auditor-General Act 1997; the performance measures set out in the outcome and programs framework in the ANAO's portfolio budget statements 2020–21 and the ANAO corporate plan 2020–21; and annual reporting requirements set out in other relevant legislation. Click here to read the report.

NLD – right of review – prosecutions involving child and certain other complainants
CDPP: 18 August 2021. The purpose of this National Legal Direction ("NLD") is to set out guidelines in relation to how certain critical decisions should be made with respect to commencing or wholly discontinuing charges in matters where there is a complainant or multiple complainants, and the complainant is an identifiable victim. Click here for more information.

ABA national brief – 09 August 2021
The ABA issues regular news updates to its members. Click here to read more.

Defence's administration of enabling services – enterprise resource planning program: Tranche 1
Auditor-General Grant Hehir found the ERP program: 20 August 2021. Mr Hehir made five recommendations aimed at improving the department's risk reporting; probity management; program decision-making arrangements; contract governance; and benefits realisation planning. The department agreed to implement all five recommendations. The online audit report can be found online here and a 93-page pdf report at this link.

Government's response to the tune review
Commonwealth government: August 2021. The review highlights a number of challenges faced by the National Archives in areas such as the adoption of new technology for the management of the information in its custody, cybersecurity, limitations of the current legislative regime and deterioration of records. The government has agreed to all 20 recommendations, in full or in principle. Click here for more information.

The second tranche of the table offences reform: Impacts on District and Local Court finalisations, time to finalisation and sentencing outcomes
BOCSAR Evaluation Report No 156: August 2021. Results from this study suggest that reclassifying offences from strictly indictable to table offences significantly reduced both the number of matters finalised in the District Court and court delay. The likelihood of prison sentences longer than 12 months decreased post-reform. Click here for more information.

Cases

EJE v Western Sydney Local Health District [2021] NSWCATAP 247
ADMINISTRATIVE LAW – particular administrative bodies – NCAT – administrative review of decision made under the Privacy and Personal Information Protection Act 1988 (NSW).
PROCEDURE – dispensing with requirement to hold a hearing – precondition to exercising power to conduct hearing "on the papers" as permitted by section 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
COSTS – special circumstances – whether discretion to award costs should be exercised.

Stalvies v Snowy Monaro Regional Council [2021] NSWCATAP 246
APPEALS – error of law – inadequate reasons – taking account of irrelevant considerations – failing to take account of relevant considerations – redetermination.
GOVERNMENT INFORMATION – information held by local council – communications with local council and local residents – whether personal information – weighing of competing interests for and against disclosure.

Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92
JUDICIAL REVIEW – public duty – failure to perform – duty to develop environmental quality objectives, guidelines and policies to ensure environment protection – meaning and content of duty – discretion in performing duty – controls on the exercise of discretion – duty requires the development of objectives, guidelines and policies to ensure environment protection from climate change – breach of duty – mandamus to compel performance of duty.

Walker v Northern Beaches Council [2021] NSWCATAD 251
ADMINISTRATIVE LAW – access to government information – adequacy of searches.
ADMININSTRATIVE LAW – access to government information – production of redacted documents – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure.

BVV v Commissioner of Police [2021] NSWCATAD 250
ADMINISTRATIVE REVIEW – privacy – personal information – disclosure of deed to insurer – exceptions to contravention – whether disclosure directly related to purpose for collection – whether reason to believe that the individual concerned would object.

CLT v Department of Education [2021] NSWCATAD 249
ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – review of decision that information not held by an agency.

Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248
ADMINISTRATIVE LAW – government information – access application – whether overriding public interest against disclosure – lack of evidence – confidential information – information provided in confidence – prejudice to court proceedings – competitive commercial – legitimate business, commercial, professional or financial interests.

Else v Sydney Trains [2021] NSWCATAP 245
APPEAL – ADMINISTRATIVE LAW – appeal from a decision of the Tribunal to affirm the decision of the respondent agency to refuse to grant the appellant access to information – meaning of phrases "could reasonably be expected" and "facilitate" in clause 2(d) and 2(f) of the table to section 14 of the Government Information (Public Access) Act 2009 (NSW).

DMP v Sydney Local Health District [2021] NSWCATAD 246
ADMINISTRATIVE REVIEW – privacy – health records – alleged breaches of health privacy principles – use and accessibility of health information in training database – meaning of use – whether sufficient security safeguards – whether refusal to treat anonymously unlawful and impracticable – whether patient coerced to provide health information.

EEC v Federation Council (No 2) [2021] NSWCATAD 241
ADMINISTRATIVE LAW – freedom of information – personal information – remittal of decision for reconsideration.

DTN v Commissioner of Police [2021] NSWCATAD 240
PRIVACY – accuracy of personal information – personal information – health information – section 4(3)(j) Privacy and Personal Information Act 1998 – section 5(3)(m) Health Records and Information Privacy Act 2002.

Jackson v University of New South Wales (No 4) [2021] NSWCATAD 239
ADMINISTRATIVE LAW – practice and procedure – dismissal of proceedings for non-appearance – dismissal of proceedings for want of prosecution – application for reinstatement of proceedings – whether jurisdiction to reinstate proceedings.

EMC v The University of Sydney [2021] NSWCATAD 234
GOVERNMENT INFORMATION PUBLIC ACCESS – information for which there is a conclusive public interest against disclosure (privileged information) – client privilege – in-house lawyers – independence – improper purpose. Non-disclosure order – anonymisation order. Information for which there is an overriding public interest against disclosure (clause 1(e), (f) and (g) and clause 3(a) and (b) and of the table to section 14(2) of the Government Information (Public Access) Act 2009). Balancing public interest considerations. Allegations of misconduct – failure to exercise in good faith – function conferred on officer – section 112 referral to Minister.

Legislation

Commonwealth

Foreign Intelligence Legislation Amendment Bill 2021
Finally passed both Houses 26 August 2021 – to: Enable the Director-General of Security to apply for a warrant authorising the interception of a communication for the purpose of obtaining foreign intelligence from foreign communications; and Australian Security Intelligence Organisation Act 1979 and Telecommunications (Interception and Access) Act 1979 to enable the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia who are acting for, or on behalf of, a foreign power; and Telecommunications (Interception and Access) Act 1979 to make other amendments.

Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021
Finally passed both Houses 26 August 2021 – amends the Commonwealth Electoral Act 1918 to: Insert a vote-saving provision for postal votes that are not received inside a sealed envelope bearing a postal vote certificate; enable postal voters outside Australia to complete certain procedural steps electronically if they are unable to comply with authorised witness requirements; amend how records of paper-based postal vote applications are managed; remove the requirements for pre-poll declaration envelopes to carry a distinguishing number; provide for a fixed pre-poll period commencing no earlier than 12 days before polling day; enable the early opening and sorting of pre-poll ballot papers, and the early extraction of declaration votes; allow 'spoilt' or 'discarded' ballot papers to be bundled; increase the number of scrutineers permitted to observe the computerised scrutiny of Senate elections; and remove the requirement for the authorisation of printed electoral material to include details of the printer.

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021
Finally passed both Houses 25 August 2021 – amends: The Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979 to: Introduce data disruption warrants to enable the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to disrupt data by modifying, adding, copying or deleting data in order to frustrate the commission of serious offences online; and make minor technical corrections; the Surveillance Devices Act 2004 to introduce network activity warrants to enable the AFP and ACIC to collect intelligence on serious criminal activity by permitting access to the devices and networks used to facilitate criminal activity; the Crimes Act 1914 to: introduce account takeover warrants to enable the AFP and ACIC to take over a person's online account for the purposes of gathering evidence to further a criminal investigation; and make minor amendments to the controlled operations regime to ensure controlled operations can be conducted effectively in the online environment; and 10 Acts to make consequential amendments.

Regulations

Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2021 (No. 1)
26/08/2021 – this instrument makes a consequential amendment to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to reflect the making of the Charter of the United Nations Legislation Amendment (2021 Measures No. 1) Regulations 2021.

Telecommunications (Prohibition of Mobile Phone Boosters) Declaration 2021
23/08/2021 – this instrument prohibits the operation or supply, or the possession for the purpose of operation or supply, of mobile phone boosters which are designed or intended to be used in connection with public mobile telecommunication services.

Charter of the United Nations Legislation Amendment (2021 Measures No. 1) Regulations 2021
23/08/2021 – this instrument amends multiple regulations to implement United Nations Security Council Resolutions that modify existing sanctions in relation to various sanctions regimes.

Transport Security Legislation Amendment (Serious Crime) Regulations 2021
20/08/2021 – these regulations amend the Aviation Transport Security Regulations 2007 and the Maritime Transport and Offshore Facilities Security Regulations 2003 to introduce new criteria affecting eligibility for holding ASIC's & MSIC's to give effect to amendments made by the Transport Security Amendment (Serious Crime) Act 2021, makes other consequential amendments to the above and the AusCheck Regulations 2017 to support those amendments.

High Court (2022 Sittings) Rules 2021
17/08/2021 – these rules appoint the high court days of sitting for 2022.

Australia's Foreign Relations (State and Territory Arrangements) Amendment (Repeal) Rules 2021
16/08/2021 – this instrument amends the Australia's Foreign Relations (State and Territory Arrangements) Rules 2020 to prescribe a self-repeal provision for the instrument after five years.

Broadcasting Services – Enforcement Guidelines of the ACMA 2021
16/08/2021 – these guidelines revoke and replace the guidelines relating to the ACMA's enforcement powers under the Broadcasting Services Act 1992.

NSW

Regulations and other miscellaneous instruments
Referable Debt Order (2021–492) – published LW 27 August 2021.
Bail Regulation 2021 (2021–454) – published LW 20 August 2021.
Children (Criminal Proceedings) Regulation 2021 (2021–455) – published LW 20 August 2021.
Confiscation of Proceeds of Crime Regulation 2021 (2021–456) – published LW 20 August 2021.
Court Security Regulation 2021 (2021–457) – published LW 20 August 2021.
Graffiti Control Regulation 2021 (2021–458) – published LW 20 August 2021.
Legal Profession Uniform General Amendment (Managed Investment Schemes) Rule 2021 (2021–473) – published LW 20 August 2021.
Local Government (General) Regulation 2021 (2021–460) – published LW 20 August 2021.
Public Health Amendment (COVID-19 Penalty Notice Offences) Regulation (No 3) 2021 (2021–452) – published LW 16 August 2021.
Sheriff Regulation 2021 (2021–463) – published LW 20 August 2021.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.