Government Services 5 Minute Fix 03

Administrative law

Busted! Some administrative law myths put to the test

Our Administrative Law Mythbuster series brings you up-to-date on the latest interpretations of some of the area's classic cases, and how they affect your day-to-day decision-making. Most recently, we've tackled:

• Bhardwaj: should all administrative decisions infected by jurisdictional error be treated as having no legal consequence?; and
• Shi: merits reviewers can't take into account material that was not before the original decision-maker – or can they?

You can catch up on all of them here.

Construction and major projects

NSW building industry Six Reform Pillars: ratings systems and regulatory overhaul

The NSW Government has unveiled plans to implement ratings systems for professionals in the building industry and new powers enabling the NSW Building Commissioner to prevent occupation certificates from being issued on suspect developments.

Combined with the Design and Building Practitioners Bill (currently before the NSW Upper House), the Six Reform Pillars form part of the NSW Government's response to the Shergold-Weir Report released in April 2018. The Shergold-Weir Report considered the effectiveness of compliance and enforcement systems for the building and construction industry across Australia and provided 24 recommendations to improve the national best practice model for effectively implementing building regulation and the National Construction Code.

You can learn more about the Six Pillars here, and the Bill here

Contracts

We expect that once the immediate impacts of the current COVID-19 pandemic are resolved, governments and businesses will turn their minds to the terms on which they contract generally, and force majeure definitions and clauses will assume a more prominent role in negotiations between contracting parties, as has been the case in recent years.

We explore what they will mean into the future in this article.

Environment and planning

Parliamentary inquiries open the dialogue on nuclear energy and uranium mining

The recent drive towards decarbonisation of the economy and delivery on State and Territory commitments to achieve net zero emissions by 2050 has reignited the discussion around the feasibility of nuclear energy as an alternative fuel source and, as a result, about uranium mining more generally.

Over the last few months:

• the Commonwealth Parliament issued a report on its inquiry into the prerequisites for nuclear energy in Australia, entitled Not without your approval: a way forward for nuclear technology in Australia on 13 December 2019;
• the NSW Legislative Council tabled its report on its inquiry into the Uranium Mining and Nuclear Facilities (Prohibitions) Repeal Bill 2019, introduced by the Hon. Mark Latham, MLC for One Nation, on 4 March 2020, to allow uranium mining and nuclear facilities in NSW; and
• a similar inquiry into nuclear prohibition has begun in Victoria, with a report expected mid-2020.

We review the current regulation and policy framework in Australia for uranium mining and exploration, as well as for nuclear facilities, set out the key recommendations of the Commonwealth and NSW inquiries, and highlight some of the key challenges for legislative change here.

Human rights & privacy

Since its enactment almost two years ago, speculation that the Modern Slavery Act 2018 (NSW) would be abandoned in deference to its Commonwealth counterpart has been unrelenting. The final report of the NSW Legislative Council's Standing Committee on Social Issues, released on 25 March 2020, should dispel any such conjecture. The report expresses strong support for the NSW Act, stating "it is clear that the NSW Act has essential work to do in addressing modern slavery." The report recommends that the NSW Act should commence no later than 1 January 2021.

This article discusses the findings and recommendations of the Committee. The NSW Government has 6 months to consider whether the recommendations of the Committee will be adopted. The future of modern slavery reporting obligations under the Act will be determined by the NSW Parliament and Government in the coming months.

You can learn more about the Committee's views here.

Procurement

In this time of heightened procurement, public sector agencies and their procurement teams should consider each procurement on a case-by-case basis. The emergency and urgent response provisions within the NSW and Commonwealth procurement frameworks are not all encompassing and are subject to conditions. Agencies should get to know the exemptions, their conditions and how they apply.

IT procurement: ASD presses “delete” on the Cloud Certified Services List

There has always been a tension between government agencies’ desire to harness the economic and technological benefits that cloud solutions offer, and their need to ensure that appropriate security measures exist to protect the data in their care.  Until now the Certified Cloud Services List (CCSL) administered by the Australian Signals Directorate (ASD) has offered something of a “safe harbour” for Commonwealth, and State and Territory government agencies attempting to navigate these complex waters.

However, the ASD and the Digital Transformation Agency, following a review of the Cloud Services Certification Program and the associated Information Security Registered Assessors Program called time on the CCSL, which will cease operation on 30 June 2020. You can learn more about how this could affect your agency's IT procurement here