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15 Oct 2020

Government services 5 Minute Fix 06

By the Government Services team

Get your 5 Minute Fix of government sector news. This issue: more administrative law news; COVID-19 triggers law reform in the west; procurement is on many people's minds, but are they doing it correctly; the Queensland caretaker period; making sure you're not on a road to nowhere; environmental approvals get bilateral; building resilience in dealing with bushfires; and the intriguing Tales from the Bar.

Administrative law

Our Administrative Law Mythbuster series continues with:

Notwithstanding its status as an outlier, the decision in NEAT Domestic Trading continues to have effect.

Development and decision-making: Parliament tables Report of the Inquiry into the City of Perth

In Parliament's tabling of the much awaited report, the Power Inquiry into the conduct of the City of Perth, a spotlight has been shone on, amongst other things, the failure of good government in the exercise of statutory decision-making. Notably, such failures in decision-making occur even in instances where legal framework (and precedent authority) makes clear the relevant considerations to which due regard must be had. Learn more here.

Contracts and procurement

Webinar: Reining in risk in Government contracts

Donna Charlesworth and Eloise Hopkinson share strategies for managing counter-party risks in Government contracts, including practical steps agencies can take when procuring services during the current COVID-19 climate. Watch here.

The legal ramifications of a falsely applied electronic signature

Prior to COVID-19, electronic signatures were already relatively common, but their adoption has since accelerated, for obvious reasons. Electronic signatures present unique risks, including the risk of unauthorised use by someone who has either gone beyond their authority or is even a fraudster. For those seeking to rely on an electronic signature to enforce a document, it may be dangerous to assume it was applied with authority without making any inquiries. Learn more here.

NSW launches remote witnessing pilot scheme; Treasurer remakes e-signing arrangements for companies 

Both the Federal Government and NSW have extended COVID-19 relief for witnessing and execution of documents into 2021.

In good news for businesses, the NSW Parliament has extended the operation of provisions permitting the witnessing and attestation of documents via audio-visual link until the end of 2021. It has done so as a pilot scheme in order to assess whether the changes should be implemented on a long-term basis.

In late September, the Federal Treasurer formally extended existing arrangements that allow documents to be signed electronically under section 127(1) of the Corporations Act 2001 and shareholder meetings to be conducted online until 22 March 2021. This follows the Treasurer's pledge in July that existing arrangements would be extended to assist businesses to continue operating during COVID-19. Read more here.

Conflicts of interest in procurement - time to review your risks

Amid a number of high profile conflict of interest issues being reported in the media (think iCare and Sports Rorts), and the increased government grant and procurement activity resulting from the bushfires and the Covid-19 pandemic, now seems like an appropriate time for a quick conflict of interest refresher.

The appropriate management of conflicts of interest is important in all government procurement and grant activities to ensure that public monies are spent appropriately. Commonwealth and state procurement and grant guidelines highlight the importance of processes being free from conflicts of interest. In short, all individuals involved with Government grant and procurement processes must declare any actual, potential or perceived conflicts of interest. A conflict of interest is a broad term and can encompass personal relationships, financial arrangements and even personal opinions. Declared conflicts must be recorded, and should be carefully considered with regard to the specific process and any risks that may arise. Conflicts cannot always be avoided, but they must be carefully managed and processes must be put in place so that perception risks are minimised.

Some key processes that agencies should have in place to ensure the management of conflict of interest risks are:

  • have a conflict of interest policy that is reviewed regularly
  • provide regular training to staff on conflicts of interest, including what may constitute a conflict and the risks that they pose to government agencies
  • require staff to advise of any secondary employment and / or material interests, and require that this be updated regularly
  • develop process specific conflict of interest procedures for procurement and grant activities as early as possible in the planning phase, and ensure that any persons involved in these processes are required to provide (and update as required) a conflict of interest declaration
  • for particularly large or contentious procurements, it can sometimes be worth undertaking some background checking on key personnel in the process to ensure all potential conflicts of interest are known.

If you are looking for guidance around conflict of interest issues, the NSW Independent Commission Against Corruption has an excellent guide titled Managing Conflicts of Interest in the NSW Public Sector. This guide provides detailed examples of situations that would give rise to conflicts of interest, provides sound advice on their management, and can be applied across both Commonwealth and state government agencies.

If you would like to know more about broader issues in procurement and best practice, read " Spending the Federal Government's $27b investment incentive wisely by getting procurement in order."

COVID-19 and business continuity

WA keeps business moving: COVID-19 Response and Economic Recovery Omnibus Bill 2020 

On 11 September 2020 the WA Government approved new legislation to support swift Government decision-making in a COVID-19 environment and to modernise legislation to permit online meetings and witnessing of certain documents by video link.

There are three key features of the new COVID-19 Response and Economic Recovery Omnibus Act 2020:

  • to ensure that if there is a "second wave" in WA, Government will continue to be able to function effectively;
  • to waive a range of business and licensing fees to ensure business continuity and to support the economic recovery from the current crisis; and
  • to validate actions taken by the WA Government since 16 March 2020 which were not in strict compliance with the law.

These changes allow Government to ensure business continuity under pandemic conditions, and bring a significant number of Acts into the 21st century by allowing government departments and agencies to use digital technology to keep the machinery of government moving. Learn more here.

Elections and caretaker periods

Webinar: 2020 State Election: Caretaker in the time of COVID

As the date for the Queensland State election fast approaches, Eleanor Dickens and Tim Gordon discuss the critical questions surrounding what the Government can and cannot do during the Caretaker Period, and a number of post-election issues. Watch here.

Environment and planning

EPBC Act reform process underway with new Bill for approval bilateral agreements regime

The reform process for the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is underway with the introduction into Parliament last week of a Bill to streamline the bilateral approvals process.

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 is the first phase of the amendments the Federal Environment Minister foreshadowed last month when releasing Professor Graeme Samuel's interim report of the independent statutory review of the EPBC Act.

The Bill would establish the legal framework for streamlined approvals via approval bilateral agreements with States and Territories. Learn more here.

NSW Bushfire Inquiry: Identifying opportunities to improve bushfire resilience and firefighting capability

Last summer's bushfires were on a scale not seen in modern Australian history. In NSW alone, the fires resulted in the deaths of 26 people, damaged more than 5.52 million hectares of land and destroyed 2,400 homes.

On 30 January 2020, the NSW Premier announced an inquiry into the 2019-20 bushfires, seeking recommendations relating to bush fire preparedness and response in advance of the 2020-21 bush fire season.

Authored by former Deputy Police Commissioner Dave Owens and former chief scientist Mary O'Kane, the inquiry's final Report made 76 recommendations that the NSW Government has said will be accepted in principle, which include proposed changes to prioritise the renewal and upgrading of the State's firefighting capabilities and also to enhance interstate resource-sharing. Learn more here.

Property

The road that you’re on, same road that you know / Just not the same as it was a minute ago. Is that true in law?

While registered owners of Torrens title land usually do not need to concern themselves with unregistered rights, historical common law roads created over their land can be an instance where they do need to worry. Learn more here.

Litigation

No smoother path for setting aside settlement agreements in New South Wales… yet

NSW's removal of the limitation period for child abuse claims alone does not permit earlier settlements of statute-barred claims to be revived through the courts.

That is the result of a recent decision by the NSW Court of Appeal which has reinforced that the amendments effected by the Limitation Amendment (Child Abuse) Act 2016 (NSW) to remove the limitation period relating to child abuse claims does not, of itself, permit earlier settlements of statute-barred claims to be brought back to life through the courts. The decision also affirmed the key elements and high threshold for establishing that a contract is unjust under the Contracts Review Act 1980 (NSW) or unconscionable in equity (Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167). Learn more here.

Tales from the Bar

Q&A: From the Court room to the lounge room: Advocacy in the virtual world

Four experienced barristers join us to share some tips and tricks for court work in a time of COVID-19. Learn more here.

Conjecture or inference: winning your case through inferences in the absence of direct evidence

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Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.