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).
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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).
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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).
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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).
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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).
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$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).
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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.