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 documents
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...

Video conferencing to facilitate legal transactions in era of social distancing
Queensland legal practitioners will be able to use video conferencing technology to conduct a range of transactions that usually require face to face meetings, as coronavirus social distancing requirements remain in place (23 April 2020). More...

QLS welcomes signing off on new COVID-19 document witnessing laws
Queensland's peak legal body has applauded the state government's passing of laws designed to assist in the managing of legal affairs during the COVID-19 pandemic (23 April 2020). More...

OAIC Statement on Facebook proceedings
The Federal Court of Australia today granted leave to the Australian Information Commissioner to serve legal documents on US-based Facebook Inc and Facebook Ireland. The Court today found that "the material demonstrates a genuine argument about contravention, sufficient to justify causing the respondents to be subject to the litigation in Australia where the merit of that argument can be judicially determined." (22 April 2020). More...

LCA: Privacy protections must be built into COVID-19 tracking app
While the Law Council of Australia acknowledges the government's desire to improve the efficiency of COVID-19 contact tracing arrangements through the roll out of a tracing app, the privacy settings of any such app will require careful scrutiny, with many in the community understandably hesitant about the collection of their personal information by the government (20 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...

Published - articles, papers, reports

Monitoring changes in domestic violence in the wake of COVID-19 social isolation measures
BOCAR: 23 April 2020
The statistics only capture the first two weeks of social distancing measures. "These data reflect the early days of social isolation measures and the situation could well change as time goes on. We will continue to closely monitor changes in domestic violence through a range of data sources." More...

Rapid implementation of Australian Government initiatives
ANAO: 16 April 2020
This edition of audit insights outlines key messages from Auditor-General reports which have examined the rapid implementation of government initiatives. Topics covered include risk management, governance, resource mobilisation, accountability and program oversight in the context of rapid implementation. More...

Cases

Re Young; Re Young [2020] HCA 13
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 [2020] 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 [2020] 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

JWR Productions Australia Pty Ltd v Duncan-Watt (No 3) [2020] FCA 528
COSTS – application for indemnity costs on the basis of a Notice of Offer to Compromise issued under r 25.01(1) of the Federal Court Rules 2011 (Cth) – where refusal of offer was unreasonable – indemnity costs awarded
COSTS – application for indemnity costs on the basis of s 43 of the Federal Court of Australia Act 1976 (Cth) and s 40 of the Defamation Act 2005 (NSW) – where refusal of offer was not unreasonable – party / party costs awarded

Roadshow Films Pty Limited v Telstra Corporation Limited [2020] FCA 507
COPYRIGHT – section 115A of the Copyright Act 1968 (Cth) – whether injunction should be granted requiring carriage service providers to take reasonable steps to disable access to online locations infringing or facilitating infringement of copyright – appropriate form of orders – injunction granted
Copyright Act 1968 (Cth) ss 14, 36(1), 103C, 115A, 120, 126
Copyright Amendment (Online Infringement) Act 2018 (Cth)
Federal Court Rules 2011 (Cth) rr 16.07, 22.04

Aurora Funds Management Limited v Australian Government Takeovers Panel (Judicial Review) [2020] FCA 496
CORPORATIONS – application for judicial review of a decision of Australian Government Takeovers Panel –
ADMINISTRATIVE LAW – bias – where Sitting President of Panel contemporaneously briefed as senior counsel in Supreme Court of New South Wales proceeding involving no parties to present proceeding – where Fifth Respondent a director of party to Supreme Court proceeding – where Fifth Respondent's credit said to be impugned by position of Sitting President's client in Supreme Court proceeding – where Sitting President had done no work on brief at time of Panel's decision – whether reasonable apprehension of bias – consideration of extent of knowledge of fair-minded lay observer
PRACTICE AND PROCEDURE – where hearing re-opened to allow for additional ground of review – where leave to raise two additional formulations of ground refused – consideration of relevant principles
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5; Evidence Act 1995 (Cth) ss 59, 76, 136; Judiciary Act 1903 (Cth) s 39B

Military Rehabilitation and Compensation Commission v Riley [2020] FCA 488
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on questions of law – whether the Administrative Appeals Tribunal misconstrued s 7(1) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – appeal allowed and matter remitted for redetermination according to law

Formosa v Queensland Building and Construction Commission [2020] QCAT 93
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where decision made to decline a claim under the QBCC Home Warranty Insurance Scheme Policy Conditions – whether defective building work – whether extension of time to make insurance claim should be granted - Queensland Civil and Administrative Tribunal Act 2009 Qld s 9, s 21, s 24(1)

Legislation

Fair Work Commission Amendment (Miscellaneous Measures) Rules 2020
24/04/2020 - This instrument amends the Fair Work Commission Rules 2013.
Part 3—Amendments to require declarations rather than statutory declarations

Queensland

Appropriation (COVID-19) Bill 2020
Introduced by: Hon J Trad MP on 22/04/2020
Stage reached: Passed on 22/04/2020

COVID-19 Emergency Response Bill 2020
Introduced by: Hon A Palaszczuk MP on 22/04/2020 Stage reached: Passed on 22/04/2020
The policy objectives of the Bill are to:a mend the Parliament of Queensland Act 2001(the Parliament of Queensland Act) to:

  • enable meetings of the Legislative Assembly to take place, by whole or in part, via technology such as teleconferencing or videoconferencing during the current COVID-19 emergency; and clarify that Members of Parliament may participate in parliamentary committee meetings via technological means;
  • establish a legislative modification framework of general application across the statute book (the modification framework) allowing legislative requirements to be modified in the following areas, should that be required: attendance at places or meetings, making and associated use of documents and physical presence requirements statutory timeframes; and proceedings of courts and tribunals

Subordinate legislation as made - 17 April 2020
No 23 Disaster Management (Further Extension of Disaster Situation—COVID-19) Regulation 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.