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NSW Government Bulletin

05 February 2020

#Government

Published by:

Rebecca Weakley

NSW Government Bulletin

A very brave decision, Minister (in the absence of delegation)

There is no need, by way of introduction, to recap on the politics associated with the sports rorts affair, which have consumed front pages and column inches for some weeks. Let’s pause though to summarise the key elements of the Community Sport Infrastructure Grant (CSIG) program and the key findings of the Australian National Audit Office (ANAO) audit.

CSIG program

The CSIG program was introduced in 2018 in a bid to improve local community sport infrastructure, to ensure that communities have access to quality sporting facilities and encourage greater community participation in sport and exercise.

The program was to be administered by Sport Australia, a corporate Commonwealth entity with a separate legal persona, capable of exercising legal rights such as entering into contracts and awarding grants. Sport Australia is not subject to the Commonwealth Grant Rules and Guidelines (CGRGs), which provide expectations for all non-corporate Commonwealth entities regarding grant administration, although it has a Grant Management Framework which is based on the CGRGs.

Grants totalling $100 million were awarded to 684 projects across three rounds of funding in December 2018, February 2019 and April 2019.

According to the published program guidelines, all eligible applications were to be assessed against three weighted merit criteria, with funding to be awarded on a competitive basis by the Minister for Sport.

The decision for the ANAO to undertake an audit into all grants under the CSIG program came about in March 2019, following a request to look into the circumstances surrounding the presentation of a cheque to a bowling club for a project that received over $127,000 in funding under the second round of grants.

The objective of the ANAO audit was to establish whether or not the award of funding under the CSIG program was informed by an appropriate assessment process and sound advice.

Key findings of the audit

The ANAO report was published on 15 January 2020, and found that the grant funding awarded was overall not informed by an appropriate assessment process and sound advice.

Although Sport Australia’s assessment of applications was largely in accordance with the published program guidelines, the Minister’s Office had commenced its own assessment process.

The ANAO found that in doing so the Minister’s Office had considered factors outside of those specified in the program guidelines, in particular, noting projects that were located in Coalition ‘marginal’ and ‘targeted’ electorates. This consideration was not consistent with the published grant guidelines and this supplementary assessment process, rather than the Sport Australia process, predominantly informed the Minister’s funding decisions.

Under the published guidelines, the cut-off score for a project to receive funding was 74 out of 100. The ANAO found that 417 grants, attracting 61 per cent of the funding, had been made to projects that scored less than the cut-off score under the published guidelines.

The legal issues

Delegation – did the laws underpinning the grant scheme give the Minister authority to make the decisions that were made?

Although the program guidelines specified that the Minister for Sport was to approve CSIG funding, the ANAO found no records demonstrating that the Minister was advised of the legal basis on which the Minister could give approval and it was not evident to the ANAO what the legal authority was.

The Australian Sports Commission Act 1989 (Cth) (Act) gives powers to Sport Australia, including the power to make grants or enter into contracts (section 8 of the Act). Under section 11, the Minister has power to give Sport Australia written directions in relation to policies and practices to be followed in performing its functions and exercising its powers.

Prior to giving a direction to Sport Australia, the Minister must inform Sport Australia in writing that the Minister is considering giving the direction and give the Chairperson of Sport Australia an opportunity to discuss the need for the direction. Further, the direction must be published in the government gazette and tabled in parliament.

The ANAO found no evidence that any section 11 directions were issued to Sport Australia during the 2018-2019 period and that therefore, in the absence of any written direction, there was no legal authority under which the Minister was able to approve funding or determine grants to be paid by Sport Australia.

Although the Act affords Sport Australia the power to delegate specific powers and functions to a named list of people, the Minister is not on that list.

Constitutional validity

A second legal issue that arises is whether the government acted outside the Constitution by becoming involved in the funding of local sports. In Williams v Commonwealth of Australia (2012) 288 ALR 410 (the ‘School Chaplains case’) the High Court found that the Commonwealth Government could not spend money unless firstly, there was authorisation by parliament and secondly, the scope was supported by the Constitution.

The Commonwealth Parliament may only legislate on subjects listed in the Constitution, and there is no head of power in relation to ‘sport’.

An argument seeking to rely on nationhood powers as a lawful basis for the powers would fall short, as this would require the government to provide that either it was acting in a national emergency or doing something that state governments could not do. State governments can and do give out sport grants.

Procedural fairness

Under the Statement of Ministerial Standards (to which the NSW equivalents are the NSW Ministerial Code of Conduct and the Code of Conduct for Members), Ministers must act ‘in the lawful and disinterested exercise of the statutory and other powers available to their office’, rather than for party-political advantage. Official decisions must be ‘unaffected by bias or irrelevant consideration’.

Given the findings of the ANAO audit, it is difficult to see how the Minister met the required standards in exercising ministerial discretion (even if there had been legal authority to do so).

Relevance for NSW

The issue of delegation (here, could the Minister act as the delegate to the agency?) is an interesting one and no doubt there are concerned ministers and agencies around the country examining the legal authority of past decisions in light of the sports rorts affair, particularly in instances of what we might conveniently call ‘captain’s picks’.  

Agencies may find themselves subject of criticism in circumstances where advice is not sought, where doubt exists.

Given the broad residual powers of the states, it is unlikely that a situation will arise where the states do not have the power to legislate (contrary to the position of the Commonwealth in local sports funding), assuming a low incidence of transgressions into the express powers of the federal government.

Authors: Christine Jones & Rebecca Weakley

In the media 

This proposed lawsuit could test whether a judge can be sued for sending someone to jail
In what would later be described by the full bench of the Family Court as an "affront to justice", a man was sentenced to 12 months' jail after walking into a property settlement hearing (31 January 2020).  More...

Commission warns on Religious Discrimination Bill overreach
In its submission on the latest draft of the Religious Discrimination Bill, the Australian Human Rights Commission warns that elements of the Bill are inconsistent with international human rights law (31 January 2020).  More...

Australians accepting of biometric identification despite privacy concerns
More than 80 per cent of Australians are “extremely concerned” about privacy threats associated with biometric technology for identity verification, but they would still be willing to accept the technology in certain situations, says a recent report by the Australian Institute of Criminology (AIC) (23 January 2020).  More...

PS privacy powers move to emergency level
The Government’s Privacy (Australian Bushfires Disaster) Emergency Declaration allows personal information about people affected by the bushfires to be exchanged by Agencies and private sector organisations for specific purposes that might not otherwise be allowed. The Declaration will apply for the next 12 months (23 January 2020).  More...

Constitutional questions loom over $100 million community sports grants
Legal experts have raised concerns over the constitutional basis of the Morrison government's controversial $100 million sports grants program (21 January 2020).  More...

In practice and courts

OAIC: Bushfires Disaster Emergency Declaration under the Privacy Act
Australian Government agencies and private sector organisations covered by the Privacy Act 1988 who are part of the bushfire disaster response can now operate under emergency privacy provisions to assist people impacted by the bushfires and coordinate and manage the response (21 January 2020).  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 (21 January 2020).

OAIC: Credit reporting changes to benefit consumers
The Office of the Australian Information Commissioner (OAIC) has approved amendments to the Credit Reporting Code 2014 that will benefit consumers. ARCA began consulting on the amendments in 2018, following an independent review of the Code. The amendments to the Code will be introduced on 14 February 2020.  More...

ALRC Discussion Paper: Corporate criminal responsibility
The Discussion Paper makes 23 proposals for reform and asks 11 questions on particular areas of reform. A number of aspects of corporate criminal liability are discussed, including the division between criminal offences and civil penalty provisions, the method for attributing liability to corporations, individual liability for corporate offences, sentencing and specific issues such as illegal phoenix activity. The ALRC is seeking submissions on the Discussion Paper until 31 January 2020.  More...

Federal Circuit Court of Australia: Joint Practice Direction 1 of 2020 - Core Principles in the Case Management of Family Law Matters
This Practice Direction sets out the ten core principles that underpin the exercise of the family law jurisdiction of the Courts. All steps taken in proceedings before the Courts, including commencement of proceedings, should follow these principles (28 January 2020).  More...

Federal Circuit Court Discrete Property List - 28 January, 2020 commencement
From 28 January, 2020 applications which seek financial orders only, will be listed before a Registrar on the First Court Date and managed by a Registrar until the conclusion of the dispute resolution process. Referral to a Judge on the First Court Date will only be permitted in circumstances of genuine urgency requiring judicial determination.

High Court of Australia Digital Lodgment System Portal
In January 2020 the High Court of Australia introduced a Digital Lodgment System Portal (DLS Portal) to permit parties to start cases, file documents, pay fees, receive notifications from the Court and track the progress of a case without attending the Registry.

AHRC: Human Rights and Technology Discussion Paper - rights and freedoms
The Commission has launched the Human Rights and Technology Discussion Paper, which makes wide-ranging proposals for safeguarding human rights and encouraging accessible, equal and accountable use of new technology in Australia. The deadline for submissions is 10 March 2020. You can download the Human Rights and Technology Discussion Paper and make a submission on the Commission's website.  More...

ACC: Government response to the Digital Platforms Inquiry

The government released its response to the Australian Competition and Consumer Commission (ACCC) Digital Platforms Inquiry final report on 12 December 2019. The government has committed to reviewing copyright enforcement reforms made in 2018 at the end of 2020 and considers this will be an opportune time to better evaluate the opportunities for facilitating online copyright enforcement.  More...

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions, including immigration and citizenship. Issue No. 3/2020, 28 January 2020.  More...

Legal and Constitutional Affairs References Committee
Impact of changes to service delivery models on the administration and running of Government programs
Nationhood, national identity and democracy

Legal and Constitutional Affairs Legislation Committee
Federal Circuit and Family Court of Australia Bill 2019 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions]
Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019

NSW

NSW Public Consultation
Review of the Minimum Age of Criminal Responsibility
The Council of Attorneys-General (CAG) Working Group is reviewing the age of criminal responsibility. Interested persons are invited to comment on a series of questions relevant to the Working Group's review. Submissions close on 28 February 2020

Review of the Graffiti Control Act 2008
The Department of Communities and Justice is seeking feedback on the Graffiti Control Act 2008 to determine whether the policy objectives of the Act remain valid and if its terms remain appropriate for securing those objectives. Submissions close on 10 February 2020

JUDCOM Bench books

LocalCourt Bench Book - Update 135, January 2020
[32-000] Small Claims has been revised at [32-020] and the information on pre-trial management has been updated.
[34-000] Proceedings under the National Consumer Credit Protection Act 2009 the jurisdictional limit has been updated at [34-020].
[46-000] Extradition has been revised and updated. The amendments relate to the following areas:
[52-000] Review and Appeals has been revised and updated.
The Index, Table of Statutes and Table of Cases have been updated to Update 135.

NSW DCJ: Update to child protection reporting
From 1 March 2020 amendments to the Children and Young Persons (Care and Protection) Act 1998 (Care Act) will commence to expand mandatory reporting groups and provide greater protections for reporters (20 January 2020).  More...

Call for submissions on the Legal Profession Uniform Admission Rules 2015 (NSW) removal of the word 'fame'
The Legal Services Council's (LSC's) Admissions Committee invites comment about its recommendation that the text of the Legal Profession Uniform Admission Rules 2015 (Admission Rules) be amended to reflect the language of the Legal Profession Uniform Law 2014 (Uniform Law). Specifically, the Admissions Committee supports the removal of the word 'fame'. Submissions close on 28 February 2020.  More...

Published – articles, papers, reports

Corruption perceptions index 2019
Transparency International - The index offers an annual snapshot of the relative degree of corruption by ranking countries and territories from all over the globe. In 2012, Transparency International revised the methodology used to construct the index to allow for comparison of scores from one year to the next (23 January 2020).  More...

Cases

Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1
CONTRACTS – express obligations of confidence allegedly preventing voluntary communications with the solicitors for opposing party in litigation
CONFIDENTIAL INFORMATION – consideration of the sources of obligations of confidence
PRACTICE AND PROCEDURE – consideration of orthodox approaches to enforcing obligations of confidence and obtaining information from potential witnesses in advance of trial

Dolton v Eurobodalla Shire Council [2020] NSWCATAD 36
Administrative Law – Freedom of Information – access application – whether agency holds further information – reasonableness of searches

Nilufar v Secretary, Department of Education [2020] NSWCATAD 37
ADMINISTRATIVE LAW – provision of education and care services to children - prohibition notice issued – whether there may be an unacceptable risk of harm to children – what is an unacceptable risk – content of prohibition notice exceeding risk – amendment of decision

EEZ v TAFE NSW [2020] NSWCATAD 35
HUMAN RIGHTS — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave

Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30
ADMINISTRATIVE LAW — Freedom of information — Access to information – application for Tribunal to refuse to deal with administrative review application under s 109 of the Government Information (Public Access) Act 2009– access application seeking access to excluded information – access application invalid - Tribunal refused to deal with and dismissed administrative review application

Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23
FREEDOM OF INFORMATION – government information - misconduct investigation into allegations of breach of confidence and privacy – witness evidence received in confidence – results of investigation – personal information – personal factors.

Hayley Paddon v Northern NSW Local Health District [2020] NSWCATAD 24
ADMINISTRATIVE LAW – government information – preliminary question - whether the board of a local health district is an public authority 

DRX v City of Canada Bay Council [2020] NSWCATAD 26
ADMINISTRATIVE REVIEW – personal information – review of conduct of agency admitted to be a contravention of Privacy and Personal Information Protection Act 1998 – order for compensation

Legislation

Regulations and other miscellaneous instruments
Casino Control Amendment (Miscellaneous) Regulation 2020 (2020-18) — published LW 24 January 2020
Local Government (General) Amendment (Tendering) Regulation 2020 (2020-19) — published LW 24 January 2020
Public Health Amendment (Scheduled Medical Conditions and Notifiable Diseases) Order 2020 (2020-17) — published LW 21 January 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rebecca Weakley

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