Victorian Public Sector Newsletter

ADVICE | TRANSACTIONS | DISPUTES

25 AUGUST 2020 ISSUE 88

PUBLIC SECTOR NEWSLETTER - VICTORIA

We are hopeful the restrictions put in place continue The WA government legislated itself a win in its dispute to reduce COVID-19 infections and the peak of the with Clive Palmer — and put itself above the law pandemic in Victoria has now passed. Quigley has acknowledged this new law is unprecedented. It is directly and expressly targeting Those restrictions have necessarily required the policies Palmer, his mining company Mineralogy Pty Ltd, and of many public institutions to be reviewed and adjusted. the ongoing dispute over the Balmoral South iron ore In this issue, it has been suggested that governments project. The rules of natural justice and freedom of review policies on incarceration given the dramatic information laws are expressly stated not to apply. (14 decline in people in prison due to the pandemic. In August 2020) https://theconversation.com/the-wa- that regard, Courts have made a number of operational government-legislated-itself-a-win-in-its-dispute-with- changes to ensure cases with urgency can continue. clive-palmer-and-put-itself-above-the-law-144360 In other news, the Federal Government is moving ahead Combatting modern slavery in construction and with copyright reforms and the Western Australian property industry Government has taken legislative steps to protect its position in relation to a dispute with Clive Palmer. The first of five industry-specific guides to help Australian businesses combat modern slavery has been released In the Courts, VCAT has considered the response to as part of a collaboration between the Australian a medical practitioner making commentary on social Human Rights Commission and KPMG Australia. (14 media. There have also been a number of decisions on August 2020) https://humanrights.gov.au/about/ Freedom of Information laws, in particular regarding news/combatting-modern-slavery-construction-and- whether the release of documents would be contrary property-industry to the public interest or impact the proper and efficient operations of a government agency. Privacy concerns over Australian businesses collecting data for Covid contact tracing We hope you enjoy this edition of our Victorian Public Australian businesses are being warned to be careful Sector Newsletter. about how they collect and store people’s names and phone numbers amid privacy concerns if contact lists IN THE MEDIA are left out in the open, or staff misuse the data. (11 Copyright reforms to better support the digital August 2020) https://www.theguardian.com/australia- environment news/2020/aug/11/privacy-concerns-over-australian- The Morrison Government is moving ahead with businesses-collecting-data-for-covid-contact-tracing copyright reforms which will set up a scheme to allow Coronavirus triggers drop in prisoner numbers and an the use of material if the copyright owner cannot be opportunity to reinvent the criminal justice system found, introduce a fair dealing exception for non- A dramatic decline in the number of people behind bars commercial quotation, simplify and update copyright during the coronavirus pandemic presents a significant exceptions for educational and cultural institutions, and opportunity for governments to review policies that streamline the government statutory licensing scheme had been driving up prisoner numbers before the crisis, (13 August 2020). https://minister.infrastructure.gov. experts say. (09 August 2020) https://www.abc.net. au/fletcher/media-release/copyright-reforms-better- au/news/2020-08-09/remarkable-declines-prisoner- support-digital-environment numbers-coronavirus-pandemic/12533218 1 ADVICE | TRANSACTIONS | DISPUTES

Disability accesses public transport ticket IN PRACTICE AND COURTS The Australian Human Rights Commission (AHRC) has High Court (2021 Sittings) Rules 2020 released new guidelines for public transport operators, The High Court of Australia has published the High Court setting out standards for ensuring people with disability (2021 Sittings) Rules 2020, which set out the Court’s enjoyed ‘equivalent access’ when using transport sitting schedule for 2021. services. (03 August 2020) https://humanrights.gov. au/about/news/new-guidelines-public-transport- ABA protocols - conduct of judges in Commonwealth accessibility courts and AAT Protocols directed to judicial conduct entered into by Revised charities register to carry details the Australian Bar Association with the Federal Court of The Not-for-profit Commission’s (ACNC) said charities Australia, the Family Court of Australia, the Federal Circuit would soon be able to add valuable information about Court of Australia and the Administrative Appeals Tribunal their programs to their record on the Register as a have been recently updated. The protocols are no longer way of helping attract donors and grant-makers. (03 restricted to conduct in court. August 2020) https://www.acnc.gov.au/media/news/ enhancements-charity-register-benefit-donors-and- Australian Bushfires Disaster Emergency Declaration — charities Understanding your privacy obligations The Attorney-General has made the Privacy (Australian OAIC data put price on ransomware Bushfires Disaster) Emergency Declaration (No. 1) 2020 The Office of the Australian Information Commissioner (the emergency declaration) under Part VIA of the Privacy (OAIC) has released its latest statistics report, finding Act 1988 (Cth) (Privacy Act). The emergency declaration that breaches caused by ransomware attacks and was made in response to bushfires in Australia resulting impersonation had increased over the past six months. in death, injury and property damage occurring from (03 August 2020) https://www.oaic.gov.au/privacy/ August 2019 into 2020. The emergency declaration notifiable-data-breaches/notifiable-data-breaches- expires on 20 January 2021 statistics/notifiable-data-breaches-report-january- june-2020/ VICBAR: Court and Tribunal updates All Victorian Courts and Tribunals, including VCAT, are River water report rocks the boat “Permitted Work Premises” for the purposes of the new Water markets in the Murray-Darling Basin need major Business and Industry Stage 4 Restrictions, and able to changes to allow for open, fair and efficient water remain on-site to hear urgent and priority matters. Court trading, according to a new interim report from the updates included: Australian Competition and Consumer Commission (ACCC). (03 August 2020) https://www.accc.gov.au/ Court Services Victoria (CSV) has implemented a media-release/murray-darling-basin-water-markets-in- COVIDSafe Plan that demonstrates the measures being need-of-major-changes taken to minimise the introduction of COVID-19 into Victorian courts and VCAR. Increased police powers must not be free kick for discrimination Justice sector updates due to COVID-19 In response to Premier Andrew’s declaration of a state of With stage 4 COVID-19 restrictions in place in disaster in Victoria, Aboriginal and Torres Strait Islander, metropolitan Melbourne and stage 3 in the rest of legal and human rights organisations are calling for Victoria from 11.59pm on 5 August 2020, there are strong safeguards to ensure that police powers are further updates on how this will affect the justice sector. exercised fairly and proportionately during the public Here is an update about courts and tribunal services health crisis. (11 August 2020) https://www.hrlc.org.au/ across Victoria, correct as at 4 August 2020. news/2020/8/11/police-powers-must-not-be-free-kick- for-discrimination Supreme Court: Directions from the Chief Health Officer For anyone required to attend physically, the following Stage 4 Coronavirus restrictions information is provided. From 6pm Sunday 2 August In response to public health advice, the Courts and anyone in Victoria’s court or tribunal buildings must wear VCAT have made a number of operational changes a face covering unless an exemption applies* (03 August that include the postponement of criminal jury trials, 2020) https://www.supremecourt.vic.gov.au/news/the- guidance around the use of face masks and access to latest-directions-from-the-chief-health-officer cases and hearings. Further changes are now being made in response to the introduction of Stage 4 Inquiry into the Victorian Government’s Response to the COVID-19 restrictions. (06 August 2020) https://www. COVID-19 Pandemic - Public hearing supremecourt.vic.gov.au/news/joint-statement-on- The Public Accounts and Estimates Committee is stage-4-coronavirus-restrictions holding public hearings for its Inquiry into the Victorian Government’s response to the Covid-19 pandemic from 25 to 27 August 2020. 2 ADVICE | TRANSACTIONS | DISPUTES

Inquiry into the Impact of Social Media on Elections and ‘SW’ and Australian Criminal Intelligence Commission Electoral Administration - Have your say (Freedom of information) [2020] AICmr 35 The Electoral Matters Committee is accepting Freedom of Information — Whether reasonable steps submissions to its Inquiry into the impact of social media taken to find documents — whether an agency could on elections and electoral administration. Submissions produce a written document containing the information close on 30 September 2020. in discrete form — (CTH) Freedom of Information Act 1982 ss 17 and 24A Inquiry into the Education and Prevention Functions of Victoria’s Integrity Agencies - Have your say Rex Patrick and Commonwealth Scientific and Industrial The Integrity and Oversight Committee is accepting Research Organisation (Freedom of information) [2020] submissions to its Inquiry into the education and AICmr 34 prevention functions of Victoria’s integrity agencies. Freedom of Information — Whether material in Submissions close on 31 August 2020. documents irrelevant to the request — Whether documents contain deliberative matter prepared for a PUBLISHED - ARTICLES, PAPERS, REPORTS deliberative purpose — Whether contrary to the public Australia’s cyber security strategy 2020 interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 22, 11A(5) and Through this strategy, the Australian government will 47C attempt to build trust in the online world by supporting businesses’ cyber resilience, including by sharing threat Dan Conifer and National Disability Insurance Agency information, setting clear expectations of roles and (Freedom of information) [2020] AICmr 33 strengthening partnerships. Freedom of Information — Whether disclosure would damage Commonwealth-State relations — Whether Online fraud victimisation in Australia: Risks and documents contain deliberative matter prepared for a protective factors deliberative purpose —Whether contrary to the public Online fraud includes dating or romance scams, interest to release conditionally exempt documents — deceptive sales of products and services, dishonest (CTH) Freedom of Information Act 1982 —ss 11A(5), 47B, investment schemes, lottery or inheritance scams, 47C and 55D working from home scams or lottery fraud involving false prize draws or sweepstakes. These findings support the ‘SV’ and Services Australia (Freedom of information) development of targeted awareness-raising campaigns [2020] AICmr 32 focusing on the online behaviour most likely to lead to Freedom of Information — Whether reasonable steps fraud victimisation. taken to locate documents — Whether disclosure would have a substantial adverse effect on the proper and Guidelines: Equivalent Access under the Disability efficient conduct of the operations of an agency — (CTH) Standards for Accessible Public Transport 2002 (Cth) Freedom of Information Act 1982 ss 24A and 47E(d) Guidelines provided information on the operation of the equivalent access provisions of the Transport Standards, Ellis v Medical Board of Australia (Review and their interaction with the Disability Discrimination Act Regulation) [2020] VCAT 862 1992 (Cth). Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 – – Murray–Darling Basin water markets inquiry Interim immediate action to suspend registration of registered report medical practitioner – social media commentary The report found that the $1.5 billion-a-year basin water – whether opinions had no proper clinical basis, markets had outgrown the frameworks that governed were contrary to accepted medical practice, or were them, with change needed for the market to operate otherwise untrue or misleading – whether commentary efficiently and for the benefit of industries that depended denigrating or demeaning of groups within society - on it. whether reasonable belief that because of conduct practitioner poses serious risk to persons – whether CASES reasonable belief that immediate action necessary ‘SW’ and Australian Criminal Intelligence Commission – whether reasonable belief that immediate action (No 2) (Freedom of information) [2020] AICmr 36 otherwise in the public interest - appropriate form of Freedom of Information — Whether reasonable steps immediate action - decision of Board confirmed. Dr taken to find documents — whether an agency could Ellis stated that he posted the material only because of “ produce a written document containing the information freedom of information ”…. that the public has the right in discrete form — (CTH) Freedom of Information Act to decide - that is “ freedom of information ”. 1982 ss 17 and 24A

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