Government services 5 Minute Fix 05

Administrative law

This month our Administrative Law Updater series addresses some common but perennially troublesome administrative law issues and gives them a new spin in light of recent cases:

• How to construe statutory schemes: When legislation and rules have been introduced contemporaneously, the rules may form part of the statutory context for particular legislative provisions.
• Statutory construction – statutory meaning vs ordinary meaning: To understand the significance of a term used in legislation, you may need to consider whether the word has a specific statutory meaning as opposed to its ordinary or natural meaning.
• Help! Do I owe a duty of procedural fairness?: Most decisions that affect rights, interests and legitimate expectations will require procedural fairness. But how do you work out if procedural fairness is excluded?
• In the course of duty: Statutory protections or exemptions afforded to officers "acting in the course of their duties" may not be as wide as you think.

In the first of our online Government CLE webinars, Cain Sibley and Deborah Mak from our Public Sector Group discuss those matters which government lawyers need to consider in order to make robust and legally defensible decisions. Specifically they review decisions that have addressed materiality and jurisdictional error and how the materiality test fits in with other administrative law principles in relation to decision-making.

Copyright

Copyright changes will make it easier for governments to provide online services

The Commonwealth recently announced it will proceed with changes to the Copyright Act to add a new exception for use of copyright material sent to government, provided the use is for non-commercial purposes. These changes were recommended in the 2013 Australian Law Reform Commission report into Copyright and the Digital Economy, and again as part of a possible broad "fair use" copyright exception in the 2016 Productivity Commission Inquiry Report into Intellectual Property Arrangements. The Commonwealth Government is not intending to introduce a fair use copyright exception, but is proposing to add an exception that will allow governments to use copyright material (including putting it online) for non-commercial purposes. Read all about it here.

Employment & workplace relations

Higher threshold for disciplinary action and more permanent employment on the way for Queensland public service

The Public Service & Other Legislation Amendment Bill 2020 is the first wave of likely changes stemming from the Bridgman Review. Public sector agencies will need to prepare for greater scrutiny of temporary employment, performance management and discipline decisions. Read all about it here.

Environment & planning

In State of Queensland v Baker Superannuation Fund Pty Ltd (2018) the Queensland Court of Appeal found that the State was liable in nuisance for erosion caused to neighbouring land. This Government Briefing discusses the implications of the decision in Baker for government landowners.

Privacy & cybersecurity

A new legislative framework foreshadowed to strengthen the regulation of civil surveillance technologies in Queensland

Foreshadowed stronger privacy protections for civil surveillance technologies in Queensland could lead to changes in a range of widespread practices, including the recording of private conversations.

The Queensland Government has announced that if returned to office it will move to introduce new legislation to update Queensland's current privacy laws to respond to the now embedded use of surveillance technologies such as security cameras, digital recording devices and drones. The move is in response to the Queensland Law Reform Commission's "Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies" tabled in the Queensland Parliament on 29 June 2020.

We address key recommendations and likely changes to Queensland surveillance law here.

Data breaches during COVID-19: Insights and best practice tips from the OAIC 

The Privacy Commissioner's latest Notifiable Data Breaches (NDB) Report for January to June 2020 provides important insights and take-aways for organisations and Federal government agencies bound by the Privacy Act.

The key finding of the report is that malicious or criminal attacks remain the leading cause of data breaches, with human error continuing to be the second largest cause of data breaches. This is perhaps not surprising given the well-publicised increase in cyber-attacks during the COVID-19 crisis. What may be surprising (at least to some) is that the OAIC's view is that changed business practices in response to COVID-19 do not appear to have resulted in an increase to the number of reported data breaches. We highlight the Report's key insights and take-aways here.

Scott Crabb and David Benson share their insights on data, privacy and record keeping challenges in the current COVID-19 climate. 

Procurement

New NSW procurement guidelines now in effect for skills and diversity on major construction projects

In NSW, new Government procurement guidelines for skills, training and diversity in construction (published as PBD 2020-03), approved back in May this year, have come into effect The guidelines apply to all new construction project procurements by a NSW Government agency commencing after 1 July 2020. Agencies should ensure that they implement these requirements in their tender documentation.

The new skills, training and diversity guidelines require all agencies to demonstrate a commitment to meeting skill and diversity targets to engage apprentices, learning workers, people under 25 years, indigenous people, and women on major construction projects. These targets are consistent with those outlined in the Infrastructure Skills Legacy Program (ISLP) and form part of the NSW Government's commitment to improve workforce capability and capacity across the construction industry. Learn more here.

Procurements made easier, but corruption and integrity risks remain

Significant stimulus packages and procurements are being rolled out by Governments across Australia in response to the economic impacts of the COVID-19 crisis. To expedite these recovery initiatives, measures have been taken to ease some of the procurement requirements that would otherwise apply, potentially exacerbating the usual corruption and integrity risks associated with government procurements. In the current environment, particular care will be needed to ensure these risks are appropriately mitigated. Learn more here.