In the media
Covid safe: Australian government launches coronavirus
tracing app amid lingering privacy concerns
Australians can now download the government's controversial coronavirus contact tracing app, Covidsafe, amid ongoing concerns about privacy of those using the app. The Health minister has published a determination that prevents the data being used for other purposes, including for law enforcement purposes or court orders, and the data must be held within Australia (26 April 2020). More...
COVID 19 arrangements for electronic witnessing of legal
President of the Law Society of NSW has welcomed the passing of an emergency regulation which allows for the witnessing of legal documents to be conducted electronically during the COVID-19 pandemic. The temporary provisions, which have been added to the Electronic Transactions Regulation 2017, provide altered arrangements for the witnessing of documents (23 April 2020). More...
Domestic Violence in the wake of COVID-19 in NSW
Concerns have been raised that social isolation strategies implemented to address the COVID-19 pandemic may inadvertently increase the incidence of domestic violence. The Bureau of Crime Statistics and Research have compiled preliminary statistics to monitor any early signs of increase in domestic violence (23 April 2020). More...
OAIC takes stand over virus transparency
The Office of the Australian Information Commissioner (OAIC) has joined with its State and Territory counterparts to issue a public statement on the importance of transparency during the current Coronavirus pandemic (21 April 2020). More...
How these agencies are breaching patient privacy
Privacy experts have criticised Services Australia and AHPRA for sharing thousands of private health records every year without informing patients, a practice that appears to contradict the government's own guidelines (21 April 2020). More...
$5000 on-the-spot fine to protect all workers
Anyone coughing or spitting on any worker will face a $5000 on-the-spot fine with tough measures introduced to protect health care staff and police now extended to all workers. Health Minister Brad Hazzard said anyone at work or travelling to or from work would be protected, after several recent incidents involving retail and transport workers (19 April 2020). More...
The Family Court of Australia and Federal Circuit Court
of Australia formalises support for alternative dispute resolution
with the introduction of an Arbitration List
To support the development and promotion of arbitration for property matters in family law, the Family Court of Australia and the Federal Circuit Court of Australia (the Courts) have established a new specialist list in each Court, to be known as the National Arbitration List (16 April 2020). More...
Appointment of The Family Court and Federal Circuit
Court Chief Executive Officer and Principal Registrar
The Morrison Government has appointed Mr David Pringle as the Chief Executive Officer and Principal Registrar of the Family Court of Australia and CEO of the Federal Circuit Court of Australia (16 April 2020). More...
LCA: High Court decision highlights ongoing
While the Australian Federal Police raid on News Corporation journalist Annika Smethurst was found to be unlawful by the High Court, the judgment highlights the Law Council's continued concerns about the ongoing vulnerability of public interest journalism (16 April 2020). More...
HRLC: Press freedom remains under threat despite High
Today the High Court unanimously ruled that the warrant relied on by the Australian Federal Police to raid the home of News Corporation journalist Annika Smethurst was invalid, and the raid was therefore unlawful. However laws that criminalise public interest reporting remain in place, leaving journalists and whistleblowers exposed to police investigation and prosecution (15 April 2020). More...
Practice and courts
Federal Circuit Court of Australia: Practitioner and
litigant guide to virtual hearings and Microsoft Teams
This Guide is for proceedings conducted in the Family Court of Australia and the Federal Circuit Court of Australia (22 April 2020). More...
High Court of Australia: Practice Notes
Evidence by Affidavit
High Court of Australia, 3 of 2020 - This Practice Direction takes effect on 15 April 2020.
The Registrar may accept the filing of the affidavit signed by the deponent but not sworn or affirmed before a qualified witness on the understanding that, if required, the affidavit will later be sworn or affirmed when circumstances allow.
Law Council of Australia Submissions
21 April 2020— Law Council. More...
Australian Bushfires Disaster Emergency Declaration
— Understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020.The emergency declaration expires on 20 January 2021
Current Senate Inquiries
Select Committee on COVID-19. More...
Environment and Communications References
On 16 March 2020, the Committee presented a progress report recommending that the Senate grant an extension of time to report until 20 May 2020. More...
Legal and Constitutional Affairs References
On 23 March 2020 the committee's reporting date was extended to 9 September 2020. More...
Legal and Constitutional Affairs Legislation
Report by 20 November 2020. More...
DCJ: COVID-19. Video tech for witnessing legal
Last published on 22 Apr 2020. More...
DCJ: COVID-19. Free help for pandemic legal issues
Last published on 15 April 2020. More...
NSW Privacy Commissioner Statement: use of mobile phone
data for managing the COVID-19 pandemic
The NSW Privacy Commissioner, Ms Samantha Gavel, has issued a statement about the use of aggregated mobile phone data to assist in the NSW Government COVID-19 response (18 April 2020)
COVID - 19: Information for Attending Court – as
at 20 April 2020
The New South Wales Bar Association's consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments
Statutory review of the Crimes (Serious Crime Prevention Orders) Act 2016
The NSW Department of Communities and Justice is conducting a review of the Crimes (Serious Crime Prevention Orders) Act 2016 to determine whether the policy objectives remain valid and the terms remain appropriate for securing those objectives. Submissions close on 22 May 2020.
Re Young; Re Young  HCA
High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established.
Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty".
Smethurst v Commissioner of Police
 HCA 14
Held: Search warrant was invalid Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision.
Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds. Constitution, s 75(v); Australian Federal Police Act 1979 (Cth), s 8.; Crimes Act 1914 (Cth), Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3); Judiciary Act 1903 (Cth), s 32.
Australian Information Commission v Facebook
Inc  FCA 531
PRACTICE AND PROCEDURE – Alleged contraventions of s 13G of the Privacy Act 1988 (Cth) – Interlocutory Application – Application for interim suppression and non-publication orders under s 37AI of the Federal Court of Australia Act 1976 (Cth) – Application for service outside of Australia pursuant to r 10.43(3) and (4) of the Rules – Application for substituted service under r 10.24 of the Federal Court Rules 2011 (Cth) – Application granted
Godla v Commissioner of Police, New South Wales Police
Force  FCA 489
ADMINISTRATIVE LAW – application for judicial review of decision under federal statute made by an agent of a state decision-maker, the Commissioner of Police, NSW – pseudonym application – where the Commissioner's agent refused applications by the applicant for permission to travel as required by s 271A.1 of the Criminal Code (Cth) in circumstances where the applicant was named on the NSW Child Protection Register – where the Minister for Foreign Affairs cancelled the applicant's passport and refused to reinstate the applicant's passport – whether decision-makers made reviewable errors under s 5, s 6, or s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – no other viable grounds of review established – application dismissed with costs
Herbert v New South Wales Land and Housing
Corporation  NSWCA 74
CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar's decision CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11 CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency
Hamzy v Commissioner of Corrective Services and the
State of NSW  NSWSC 414
Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant requiring legal practitioners to undergo criminal records enquiry as part of the approval process to visit high risk restricted inmates – Whether decision unlawful – Whether decision unreasonable – Whether decision infringed or removed the right of a high risk inmate to choose a legal practitioner Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant to deny the plaintiff access to AVL facilities for the purposes of conferring with his legal representative – Where the defendant took into account the fact that conversations over AVL could not be monitored – Where defendant also took into account the security risk which would arise if the plaintiff were granted access – Whether defendant's decision was unreasonable Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to the practice of the defendant to permit limited monitoring of calls between the plaintiff and his legal representative – Whether such a practice unlawful – Whether such a practice amounted to an impermissible intrusion into legal professional privilege Statutory interpretation – Prison legislation – General principles applicable to the interpretation of such legislation – General reluctance of Courts to interfere in matters of prison administration – Necessity to recognise the difficulty of the task of managing prisons – General recognition of Parliament's intention to give those responsible for the management of prisons a broad discretion commensurate with their task Human Rights Law – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Where defendant required that communications to which the plaintiff was party during visits in custody be in English – Where plaintiff asserted a right to be able to speak Arabic – Whether the right to freedom of expression encompassed a right of the plaintiff to be able to speak in the language of his choice – Whether provisions of the regulations pursuant to which the defendant acted in requiring that conversations be conducted in English were invalid constitutionally or otherwise Words and phrases – "in English" – "based on"
Klewer v Director of Public Prosecutions
(NSW) (No 2)  NSWCA 69
ADMINISTRATIVE LAW – judicial review – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. VEXATIOUS PROCEEDINGS – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review
Learmouth v Secretary, Department of
Education  NSWCATAD 109
ADMINISTRATIVE LAW – government information – reasonable searches – disclosure against public interest
Scott-Mackenzie v Independent Liquor and Gaming
Authority  NSWCATAD 108
ADMINISTRATIVE REVIEW — grant of liquor licence — whether the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community
DTN v Commissioner of Police
 NSWCATAD 107
PROCEDURE - Time for lodgement of Application under Privacy and Personal Information Protection Act 1998 (NSW) – "the time the applicant first became aware" – imputed knowledge - agency – materials supplied to the applicant's former solicitor but not to the applicant
Dezfouli v Commissioner of Police
 NSWCATAD 103
ADMINISTRATIVE LAW – government information – access application – prejudice supply of information – reveal identity of informant – personal information – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure
Regulations and other miscellaneous instruments
Child Protection (Working with Children) Amendment (COVID-19 Proof of Identity) Regulation 2020 (2020-168) — published LW 22 April 2020
Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (2020-169) — published LW 22 April 2020
Administrative Arrangements (Administration of Acts—Amendment No 3) Order 2020 (2020-149) — published LW 15 April 2020
Administrative Arrangements (Administrative Changes—Ministers and Public Service Agencies) Order 2020 (2020-150) — published LW 15 April 2020
Legal Profession Uniform Law Application Amendment (Savings and Transitional) Regulation 2020 (2020-151) — published LW 17 April 2020
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.