PUBLIC SECTOR NEWSLETTER - SOUTH AUSTRALIA Welcome to Issue 29 of the SA Public Sector Newsletter

ADVICE | TRANSACTIONS | DISPUTES

27 JULY 2020 ISSUE 29

PUBLIC SECTOR NEWSLETTER - SOUTH AUSTRALIA Welcome to Issue 29 of the SA Public Sector Newsletter. Federal Parliament to be cancelled amid growing interstate COVID-19 outbreaks In this fortnight’s issue, we find further COVID-19 related The next sitting of Federal Parliament will be cancelled updates, including the cancellation of the next sitting of because of the risk of COVID-19 transmission as cases Federal Parliament amid growing interstate outbreaks and rise in NSW and Victoria. Parliament was going to sit new fines announced by the SA Government for travellers for a fortnight from August 4 but the next sitting week, from Victoria who refuse to be tested for the virus. in which the government can pass legislation and the In other news, submissions are being sought by the SA opposition can scrutinise its agenda, will now be from Law Reform Institute to inform its review of the role and August 24. (18 July 2020) https://www.theage.com.au/ operation of Powers of Attorney in South Australia and a politics/federal/federal-parliament-sitting-cancelled- new Public Trustee in South Australia has been appointed. amid-growing-interstate-covid-19-outbreaks- 20200718-p55d7w.html This issue of the Newsletter also provides the usual round- up of practice notes, cases and legislation assistance. ACMA moves to block more illegal gambling websites The ACMA is set to request Australian internet service COVID-19 - USEFUL LINKS providers (ISPs) to block more illegal offshore gambling Cleaning and disinfection in the workplace - non- websites. ACMA has received over 35 complaints about health care settings these services that are accessible in Australia. ACMA investigations found them to be operating in breach Home isolation and self-quarantine information of the Act 2001. (17 July 2020) https://www.acma.gov. Latest SA Health Updates au/articles/2020-07/acma-moves-block-more-illegal- South Australian COVID-19 response gambling-websites South Australian Government COVID-19 website SA Government renews push for Parliament to pass Local Government reform Bill IN THE MEDIA The Marshall Government says it will limit SA councils Three Ministers resign as SA Premier announces Cabinet to 12 councillors each as it continues efforts to pass its reshuffle Local Government Review Bill 2020. The revised Bill also Three South Australian Ministers and the state’s seeks to cap council CEO salaries and reduce “bad council Legislative Council president have resigned over behaviour” to minimise legal bills paid for by ratepayers. the State Government’s expenses saga. Transport (17 July 2020) https://alga.asn.au/sa-government-renews- Minister Stephan Knoll, Primary Industries Minister Tim push-for-parliament-to-pass-lg-reform-bill/ Whetstone and Trade Minister David Ridgway will leave their posts in Premier Steven Marshall’s Cabinet. (26 Wanted Victorian man arrested and fined over SA border July 2020) https://www.abc.net.au/news/2020-07-26/ checkpoint breach three-sa-ministers-step-down-amid-state-expenses- A Victorian man who had an outstanding warrant scandal/12493060 against him is arrested and fined after crossing the border into SA without passing through a COVID-19 checkpoint. (17 July 2020) https://www.abc.net.au/ news/2020-07-17/victorian-man-fined-for-failing-to- pass-sa-border-checkpoint/12465690 1 ADVICE | TRANSACTIONS | DISPUTES

SA announces fines for refusing COVID-19 tests as new New resources to support National Principles for Child case confirmed Safe Organisations The SA Government says fines of $1,000 will apply The National Office for Child Safety (NOCS) is partnering to travellers from Victoria who refuse a COVID-19 with organisations to develop new resources to support test on arrival in SA, as the state confirms its first implementation of the National Principles for Child Safe COVID-19 case in more than two weeks. (16 July 2020) Organisations and help improve the safety and wellbeing https://www.abc.net.au/news/2020-07-16/new- of children and young people in organisations across coronavirus-case-confirmed-in-sa-as-tougher-fines- Australia. (10 July 2020) https://www.pmc.gov.au/ introduced/12461044 news-centre/domestic-policy/new-resources-support- national-principles-child-safe-organisations Prosecutors admit ‘errors’ during Troy Bell investigation Prosecutors say “mistakes” made during an anti-corruption National Archives announces Palace Letters release date probe into SA MP Troy Bell — who is accused of Director-General of the National Archives, David misappropriating $2 million of public funds — should not Fricker said all the letters would be released without cause his trial to be halted. (14 July 2020) https://www.abc. exemption. In line with the High Court ruling of 29 May, net.au/news/2020-07-14/prosecutors-tell-court-trial-of- the National Archives has examined the records for sa-mp-troy-bell-should-continue/12450432 public release under the provisions of the Archives Act 1983. (9 July 2020) https://www.naa.gov.au/about-us/ Paedophile’s ‘manifestly inadequate’ jail sentence for media-and-publications/media-releases/national- toilet attack to be appealed archives-announces-palace-letters-release-date SA’s most senior prosecutor will appeal the prison sentence handed to Hamzeh Bahrami, who sexually assaulted a OAIC and UK’s ICO open joint investigation into young girl in an Adelaide toilet block but could apply for Clearview AI Inc. parole in less than two years. (14 July 2020) https://www. The OAIC and the UK’s Information Commissioner’s abc.net.au/news/2020-07-14/sa-dpp-to-appeal-hamzeh- Office (ICO) have opened a joint investigation into the bahrami-child-sex-assault-jail-sentence/12454396 personal information handling practices of Clearview AI Inc., focusing on the company’s use of ‘scraped’ data Update on Australia’s Third Open Government and biometrics of individuals. (09 July 2020) https:// Partnership National Action Plan www.oaic.gov.au/updates/news-and-media/oaic-and- As Open Government Partnership Australia (OGPAU) uks-ico-open-joint-investigation-into-clearview-ai-inc/ starts the next round of consultation to develop its Third Open Government National Action Plan (NAP3), AHRC: Commission warns of ASIO Bill overreach the Open Government Forum is pleased to release a The AHRC says the Bill would simultaneously expand report on the public engagement received so far. (13 ASIO’s questioning powers while limiting oversight of July 2020) https://www.pmc.gov.au/news-centre/ those powers, including by limiting the subject’s right public-data/update-australia%E2%80%99s-third-open- to legal representation during questioning and enabling government-partnership-national-action-plan prescribed authorities to remove, at their discretion, a Comments can be made on the OGPAU website. lawyer deemed to be ‘unduly disrupting’ questioning. (09 July 2020) https://humanrights.gov.au/about/news/ Health makes marks with mask sheet commission-warns-asio-bill-overreach The Department of Health has released a factsheet Independent National Security Legislation Monitor explaining when people should wear a face mask to Report tabled protect themselves and the community from COVID-19. The Department’s factsheet also provides guidance on A review of the Telecommunications and other how to wear a mask properly, including sanitising hands Legislation Amendment (Assistance & Access) Act 2018 before touching the mask and putting it on. (13 July has been tabled in Parliament. (09 July 2020) https:// 2020) https://www.health.gov.au/sites/default/files/ www.attorneygeneral.gov.au/media/media-releases/ documents/2020/07/when-should-masks-be-worn-in- independent-national-security-legislation-monitor- the-community-in-australia.pdf report-tabled-9-july-2020

DFAT brings hundreds of Australian staff home from New Independent National Security Legislation Monitor COVID-19 threat overseas Attorney-General Christian Porter announced that Mr DFAT’s public servants have returned from 73 postings, Grant Donaldson SC would be appointed Australia’s more than half of Australia’s diplomatic network of acting Independent National Security Legislation Monitor embassies, high commissions, multilateral missions and (INSLM). (08 July 2020) https://www.attorneygeneral. consulates. However, 70 per cent of Australian Officials gov.au/media/media-releases/new-independent- remain in 84 countries providing consular support. national-security-legislation-monitor-8-july-2020 (10 July 2020) https://www.canberratimes.com.au/ story/6827370/dfat-brings-hundreds-of-staff-home- from-coronavirus-threat-overseas/ 2 ADVICE | TRANSACTIONS | DISPUTES

Government website platform stands up under Open Government Partnership Consultation - Open by COVID-19 pressure Design GovCMS, the government website hosting and content The Open Government Partnership (OGP) has invited management system, saw record numbers of visits on comment on several draft concepts, including the the platform at the height of the COVID-19 pandemic Open by Design concept, as a part of the next phase as Australians accessed critical online information to of development for Australia’s Third National Action protect their health and safety. (09 July 2020) https:// Plan. The draft concepts have emerged from earlier www.finance.gov.au/about-us/news/2020/government- responses to the online engagement space and a website-platform-stands-under-covid-19-pressure-0 series of public workshops held in February 2020. The draft concepts are not the opinion of the Australian New appointment to the Magistrates Court Government. (15 July 2020) A senior dispute resolution lawyer with over three decades experience in the profession has been Royal Commission into Violence, Abuse, Neglect and appointed as South Australia’s newest magistrate. Toni Exploitation of People with Disability Vozzo has worked in the legal sector for over 30 years, The Royal Commission into Violence, Abuse, Neglect with a focus on commercial litigation and dispute and Exploitation of People with Disability is seeking resolution. (09 July 2020) https://www.agd.sa.gov.au/ submissions in relation to its terms of reference. You newsroom/new-appointment-magistrates-court can share your experiences by making a submission or applying for a private session with a Commissioner. Appointment of a new Public Trustee Acting Public Trustee Nicolle Rantanen has been The Queensland Law Society is currently focussing appointed as Public Trustee, Attorney-General, Vickie on the Rights and Attitudes, Education and Learning, Chapman announced. Ms Chapman said Ms Rantanen Employment, First Nations People with Disability and had begun work as Acting Public Trustee at a time when Emergency Planning and Response Issues Papers. the agency was in the midst of significant reforms. (09 OAIC: Part 9 of the FOI Guidelines (Internal review) July 2020) https://www.agd.sa.gov.au/newsroom/ appointment-new-public-trustee The OAIC seeks comment from interested stakeholders on the content, guidance, readability and accessibility Gayle Woodford inquest hears criticism of parole of the updated Part 9 of the FOI Guidelines. The closing process following release of ‘high-risk’ killer date for comments is 23 July 2020. The coronial inquest into murdered outback nurse Law Council of Australia Submissions Gayle Woodford is told South Australia’s parole board is the “last bastion” against high-risk offenders, but needs 10 July 2020 — Law Council to be amended. (09 July 2020) https://www.abc.net. Inquiry into food pricing and food security in remote au/news/2020-07-09/gayle-woodford-inquest-hears- Indigenous communities criticism-of-sa-parole-process/12437970 10 July 2020 — Law Council “A native title system in crisis”: Marshall calls for Question taken on notice - Australian Security evidence to spark judicial review Intelligence Organisation Amendment Bill 2020 A group of Aboriginal and community leaders is calling 10 July 2020 — Law Council for a “royal commission” into the native title system in Supplementary submission - Inquiry into the Australian South Australia – and Premier Steven Marshall says he is Security Intelligence Organisation Amendment Bill 2020 “prepared to consider any evidence” to justify a potential judicial review. (08 July 2020) https://indaily.com.au/ 08 July 2020 — Law Council news/2020/07/08/a-native-title-system-in-crisis- Universal Periodic Review of Australia (3rd Cycle) marshall-calls-for-evidence-to-spark-judicial-review/ ACMA position paper: Misinformation and news quality SA ICAC: Further charges laid on digital platforms in Australia Honourable Bruce Lander QC, ICAC confirms that A position paper to guide code development—includes following on from his public statement on 29 June 2020, a model code framework for consideration, including on Friday 3 July 2020, three additional people were objectives and outcomes to be achieved for the benefit charged with offences as a result of the investigation that of Australian users of digital platforms. The ACMA led to Magistrate Harrap’s arrest. (06 July 2020) https:// anticipates to have in place a single, industry-wide code icac.sa.gov.au/public-statement/6July2020 by December 2020.

IN PRACTICE AND COURTS High Court of Australia High Court of Australia Bulletin [2020] HCAB 05 (10 July 2020)

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New Law Council of Australia Guidelines - Equitable South Australia Briefing Policy Abuse of Powers of Attorney under the spotlight: The Law Council’s portal for the annual reporting by Consultation Equitable Briefing Policy adoptees (Policy adoptees) In the face of increasing concerns about the abuse has opened on 1 July 2020. To assist in this process, of Powers of Attorney, legal experts are asking the Law Council has updated its Equitable Briefing for submissions as part of their review of existing Policy Reporting Template and Guidelines in response South Australian law. Submissions are open until to feedback from previous reporting periods. Policy 4 September 2020 to give their feedback via the adoptees have until 30 September 2020 to provide their yourSAy website. A Discussion Paper, primarily for annual report. legal practitioners, has also been prepared. SALRI will consider submissions and provide a report to the Annual Federal Courts and Tribunals Fee Increases from South Australian Government by the end of 2020 with 1 July 2020 - Amended Notice recommendations about how the law can be improved. The Commonwealth Attorney-General’s Department has advised that, due to a number of small errors ICAC/OPI: Evaluation of the Department for identified in the Annual Federal Courts and Tribunals Correctional Services recommenced Fee Increases Gazette Notice published on 9 June Many evaluation activities were suspended in March 2020, an amended notice has been published in the 2020 given restrictions imposed as a consequence Government Notices Gazette on 29 June 2020 setting of the COVID-19 pandemic. A further invitation was out the new fees payable from 1 July 2020. extended to members of the public or interested parties to make a written submission relevant to the scope of AAT Bulletin the evaluation. Written submissions closed on 10 July The AAT Bulletin is a weekly publication containing a 2020. Any person wishing to obtain more information list of recent AAT decisions and information relating to about the evaluation should visit the ICAC website. appeals against AAT decisions, including immigration and citizenship. Issue No. 19/2020, 13 July 2020. PUBLISHED - ARTICLES, PAPERS, REPORTS Current APH Inquiries and Consultations Procurement of Strategic Water Entitlements Legal and Constitutional Affairs Legislation Committee ANAO Report No 2 of 2020-21: 16 July 2020 Migration Amendment (Prohibiting Items in Immigration The objective of the audit was to examine whether Detention Facilities) Bill 2020 [Provisions] strategic water procurements by the Department of Agriculture, Water and the Environment were Federal Circuit and Family Court of Australia Bill 2019 conducted consistent with government policy, were [Provisions] and Federal Circuit and Family Court of Australia supported by appropriate program design, were (Consequential Amendments and Transitional Provisions) Bill planned and executed appropriately, and achieved 2019 [Provisions] Report by 20 November 2020. value for money.

Native Title Legislation Amendment Bill 2019 [Provisions] Inquiry into behaviour training for recruits Legal and Constitutional Affairs References Committee Commonwealth Ombudsman: 13 July 2020 Inquiry into domestic violence with particular regard to Reviews Defence’s framework for administering training violence against women and their children to new recruits about Defence’s required behaviours. The Report found Defence’s overarching framework Nationhood, national identity and democracy used by the recruit schools to administer recruit training On 23 March 2020 the committee’s reporting date was was sound, however, the training that specifically extended to 9 September 2020. teaches recruits about required behaviours is not included in all parts of this framework. Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Bill 2020 The prevalence of domestic violence among women The Parliamentary Joint Committee on Intelligence and during the COVID-19 pandemic Security is calling for submissions on the Intelligence Boxall H, Morgan A & Brown R; Statistical Bulletin No. and Security Legislation Amendment (Implementing 28, Australian Institute of Criminology: 13 July 2020 Independent Intelligence Review) Bill 2020. On 23 Almost six percent (5.8%) of women experienced March 2020 the Senate extended the committee’s coercive control and 11.6 percent reported reporting date to 14 October 2020. experiencing at least one form of emotionally abusive, harassing or controlling behaviour.

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Final report of outgoing Independent National Security Australian Securities and Investments Commission v Legislation Monitor Hutchison [2020] FCA 978 The final report of the outgoing Independent National ADMINISTRATIVE LAW - appeal from Administrative Security Legislation Monitor Dr James Renwick CSC Appeals Tribunal - conduct of authorised representative SC - “Trust but Verify - A report concerning the of Australian Financial Services licensee - where Telecommunications and Other Legislation Amendment banning order made - whether conduct ‘in relation (Assistance and Access) Act 2018 and related matters” to’ financial product or financial service - whether - was provided on 30 June to the Attorney-General Tribunal’s construction of provisions including s 1041G of Australia, the Hon Christian Porter MP and the and s 1041H of the Corporations Act 2001 (Cth) Parliamentary Joint Committee on Intelligence. promotes the purpose or object of Chapter 7

ADMINISTRATIVE LAW - whether Tribunal failed CASES to consider a clearly articulated claim - whether Dyczynski v Gibson [2020] FCAFC 120 class of person who might be misled by authorised HIGH COURT AND FEDERAL COURT – Federal jurisdiction representative limited to consumer - whether – jurisdiction of the Federal Court to determine the claims constructive failure to exercise jurisdiction - whether of all group members – meaning of “matter” denial of procedural fairness

PRACTICE AND PROCEDURE – application for leave CORPORATIONS - financial services and market - to appeal – procedural fairness – application to file object of Chapter 7 of the Corporations Act - where cross appeal out of time – application to file notice of object includes promotion of fairness, honesty and contention out of time professionalism by those who provide financial services

PRACTICE AND PROCEDURE – application of Civil Acts Interpretation Act 1901 (Cth) s 15AA, 15AB, 15AD; Aviation (Carriers’ Liability) Act 1959 (Cth) – application Administrative Appeals Tribunal Act 1975 (Cth) s 44 of the Convention for the Unification of Certain Rules for International Carriage by Air (Montréal, 28 May 1999) Evidence Act 1995 (Cth) s 140 – jurisdiction under Art 33 of Montréal Convention – Piotto v Chief Executive Officer, Services Australia consideration of limitations of actions and extinguishment [2020] FCA 976 of claim under Art 35 of Montréal Convention ADMINISTRATIVE LAW – application for review under REPRESENTATIVE PROCEEDINGS – procedure under the Administrative Decisions (Judicial Review) Act 1977 Part IVA of the Federal Court of Australia Act 1976 (Cth) (Cth) (ADJR Act) – payments of Newstart Allowance (Act) – meaning of “claims” under s 33C – requirements temporary suspended ostensibly due to “mutual of s 33H – group membership and how a person may obligation failure” of applicant – applicant attempted to be excluded from group membership – requirement for tape record conversations at appointment – payments notice under s 33X – representative applicant is only a reinstated within a week thereafter – discretion privy in interest in relation to the common claims of group whether to award remedies under s 16 of the ADJR members and not their individual claims – whether orders Act – whether refusal to permit tape recording is a made pursuant to s 33ZB sufficient and preferable to bind “decision” or “conduct” amenable to review under ADJR all group members – necessity of orders made under s Act – implied statutory power to regulate conduct 33V to bind group members to settlement – suspension of appointment – delegation of Secretary’s statutory of time under s 33ZE – supervisory role of the Court in functions to private organisations performing services relation to the interests of group members for the Commonwealth of Australia

COSTS – application of the overarching purpose under SOCIAL SECURITY – requirement to attend s 37M of the Act – consideration of the Australian appointments under s 63(2) of the Social Security Solicitors’ Conduct Rules 2015 (NSW) and the Uniform (Administration) Act 1999 (Cth) – compliance action for Conduct (Barristers) Rules 2015 (NSW) – failure to obtain mutual obligation failures – implied statutory power to instructions – failure to communicate with client – duty regulate conduct of appointment not to act contrary to a group member’s interests where no retainer – duty to avoid conflicts – indemnity costs Williams on behalf of Danggan Balun (Five Rivers) People v State of Queensland [2020] FCA 938 Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 9B, 9D; NATIVE TITLE – application under s 66B(1) of the Native Evidence Act 1995 (Cth) s 136 Title Act 1993 (Cth) (the NTA) to replace an authorised applicant – whether the authorisation process which Federal Court of Australia Act 1976 (Cth) ss 4, 33A, 33C, authorised the replacement applicant was defective 33E, 33H, 33J, 33K, 33L, 33M, 33N, 33Q, 33S, 33T, 33V, – whether there was a traditional decision making 33W, 33X, 33ZB, 33ZE, 33ZF, 37M, 43, Pts IVA, VB process to be followed under s 251B(a) of the NTA – Judiciary Act 1903 (Cth) s 79; Australian Solicitors’ application granted Conduct Rules 2015 (NSW) rr 4.1.1, 4.1.3, 8.1, 9, 10, 11, 12

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PRACTICE AND PROCEDURE – application to amend a LEGISLATION claimant application under r 8.21 of the Federal Court Commonwealth Rules 2011 (Cth) – whether the authorisation process Act Compilations which authorised the amendments was defective – whether certain respondents were denied procedural Criminal Code Act 1995 fairness by the authorisation process – whether the 13/07/2020 - Act No. 12 of 1995 as amended power to allow the amendments is within the ambit of r 8.21 – application granted. Native Title Act 1993 (Cth) Regulations Electoral and Referendum Amendment (Pre-poll Voting DIAKOU NOMINEES PTY LTD v GOUGER STREET PTY and Other Measures) Repeal Regulations 2020 LTD & ANOR; GOUGER STREET PTY LTD v DIAKOU 15/07/2020 - The purpose of the Electoral and NOMINEES PTY LTD [2020] SASC 124 Referendum Amendment (Pre-Poll Voting and Other PROCEDURE - CIVIL PROCEEDINGS IN STATE AND Measures) Repeal Regulations 2020 (the Regulations) TERRITORY COURTS - MOTIONS, INTERLOCUTORY is to repeal the Electoral and Referendum Amendment APPLICATIONS AND OTHER PRE-TRIAL MATTERS (Pre-Poll Voting and Other Measures) Regulations 2010 (the 2010 Regulations). HALLIDAY v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA [2020] SASC 129 South Australia WORKERS’ COMPENSATION - PROCEEDINGS TO Proclamations OBTAIN COMPENSATION - DETERMINATION OF 9.7.2020 p 3772 Administrative Arrangements CLAIMS - RECONSIDERATION OF DETERMINATION (References in Australia Post Transactional Services AND RE-OPENING OF CASE Agreement) Proclamation 2020

Held, refusing permission to appeal: 1. The proposed 9.7.2020 p 3773 Administrative Arrangements appeal is premature and does not raise an arguable (References in Careerlink Deed of Agreement) point Proclamation 2020

HUTCHINSON v VAN DEN BERG; SAYERS- 9.7.2020 p 3774 Youth Court (Designation and HUTCHINSON & ANOR v VAN DEN BERG & ANOR Classification of Magistrate) Proclamation 2020 [2020] SASC 128 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND 9.7.2020 p 3775 South Australian Civil and TERRITORY COURTS - PLEADINGS - STRIKING OUT Administrative Tribunal (Designation of Magistrate as Member of Tribunal) Proclamation 2020 Where reply contains paragraphs that are an abuse of process, prejudice the proper conduct of the action 16.7.2020 p 3818 Labour Hire Licensing (Miscellaneous) and introduce scandalous and/or frivolous irrelevant Amendment Act (Commencement) Proclamation 2020 allegations which detract from the material issues. Acts Held: In circumstances where there was a clear 2020-20 Statutes Amendment (Licence Disqualification) demarcation of issues and evidence relating to Act 2020 liability and quantum, there was no unfairness to the respondent in granting the order for separate trials 2020-21 First Home and Housing Construction Grants (Miscellaneous) Amendment Act 2020 MCLACHLAN & SOUTH OZZ SHELTER v HAMILTON [2020] SASC 126 Regulations CHARITIES - ADMINISTRATION AND CONTROL BY 2020-232 Electricity (General) (Retailer Energy COURT - PARTIES - OTHER PARTIES - RIGHTS - TO BRING Efficiency Scheme) (Public Health Emergency) Variation PROCEEDINGS Regulations 2020

CHARITIES - ADMINISTRATION AND CONTROL BY COURT 2020-233 Gas (Retailer Energy Efficiency Scheme) - PARTIES - ATTORNEY-GENERAL - WHEN NECESSARY (Public Health Emergency) Variation Regulations 2020 OR PROPER PARTY 2020-234 South Australian Public Health (Notifiable CHARITIES - CHARITABLE PURPOSES - OTHER PURPOSES and Controlled Notifiable Conditions) (SARS-CoV-2) BENEFICIAL TO PUBLIC - GIFT FOR ANIMAL WELFARE Variation Regulations 2020 2020-235 Planning, Development and Infrastructure (Fees, Charges and Contributions) (Miscellaneous) Variation Regulations 2020

2020-236 Labour Hire Licensing (Miscellaneous) Variation Regulations 2020

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