Previous issues:

The Federal Government has developed a new policy requiring all Australia government agencies to implement plans for the management of IP by 1 July 2008. Will this help agencies manage their key risks associated with the operation of their businesses? Or, will it turn out to be an administrative burden that has little value and diverts the attention of managers?

As a result of the High Court's recent decision in Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited, Crown immunity will no longer apply to commercial contracts involving Federal, State and Territory governments, as far as the corporation contracting with that government is concerned.

The Australian Law Reform Commission has recently released a detailed discussion paper, recommending a major revamp of the country's privacy laws. The discussion paper which contains more than 300 proposals, marks the largest consultation process in the ALRC's history.

There are several key obligations that an agency must fulfil before it can validly transfer a request for documents under the Freedom of Information Act. If an agency fails to meet these obligations they run the risk of the transfer being invalid.

The Australian Government's recently published better practice probity guide provides greater clarity and direction in relation to the important role that probity plays in public sector procurement.

The Full Federal Court recently reaffirmed the powers of the Migration Review Tribunal to review decisions that have been the subject of jurisdictional error.

A recent decision handed down by the Federal Court of Australia has provided important clarification as to whether procedural fairness needs to be afforded at the commencement of the exercise of a statutory power of an investigatory nature.

Procedural fairness obligations put the onus on decision-makers to put to the affected person all key issues in a case, and give the person the opportunity to address them. A recent decision raises the question of how decision-makers are to proceed in cases where there are aspects of the particular person's account that they consider may be important to the decision, but may be open to doubt.

The adoption by the Commonwealth 12 months ago of a new policy aimed at reducing the environmental impact of government operations is driving the construction of more energy-efficient commercial buildings and premises.  Increasingly, the market is driving the shift towards policy compliance, a trend likely to grow across the states as the commerciality of 'green business' becomes a market driver.

A recent case highlights the potentially broad scope of s.33(4) of the Acts Interpretation Act 1901 (Cth). The case highlights that s33(4) has broad operation and enables suspension without consultation, even if the power to appoint requires consultation. The Court also held that there is a difference between a statutory power to issue an instrument and a power to make a statutory decision that, in the interests of good administration, is later recorded in writing.

The management of intellectual property by Federal Government agencies is set for a shake-up following the release of the first IP-specific policy to bind them. The statement provides a broad framework for IP management by agencies and deals with procurement, record keeping, industry development, innovation policy and public access. Agencies are required to implement the Statement of IP Principles by 1 July 2008.

The High Court's recent decision in Bodruddaza v Minister for Immigration and Multicultural Affairs has important implications for Parliament's ability to restrict an aggrieved person's ability to apply for judicial review of decisions of Commonwealth officers. In the decision, the High Court again emphasised the central importance of the Court's original jurisdiction in the structure of Australia's system of government.

The Federal Court of Australia's decision in the matter of Copyright Agency Limited v State of New South Wales has significant implications for Crown ownership of copyright. The scope of the Crown ownership provisions may be narrower than currently contemplated by some Government departments or agencies. It also may suggest that some activities currently paid for by the Crown under its statutory licences might in fact be covered by an implied licence to use material to fulfil a department or agency's statutory or regulatory functions.

The final version of the SourceIT model contracts and user notes were released by the Department of Finance and Administration on Monday 28 May 2007. They replace the GITC4 contracts as the model contracts for simple Government information and communications technology (ICT) procurement.

On 2 February 2007, the Australian National Audit Office (ANAO) released a new Better Practice Guide titled 'Developing and Managing Contracts: Getting the right outcomes, paying the right price' to help public sector organisations to better understand the procurement process and contracts, and adopt better management practices.

The expansive construction of the corporations power in section 51(20) of the Constitution adopted by the majority of High Court justices in the WorkChoices Case has raised questions about future Commonwealth governments using the power to enter fields that have previously been regarded as the province of the States.

Agencies need to be aware of the types of technological security measures available to them in order to minimise their legal exposure to a possible breach of the Privacy Act when using the internet to send records that contain personal information.

As their range of activity continually expands in response to new government initiatives, Commonwealth agencies are constantly challenged to develop better procurement practices to deliver the goods and services required. The Department of Finance and Administration has issued two new booklets to help agencies with their procurement processes.

The increasing use of 'e-health' initiatives raises concerns about protecting patients' privacy when their medical information is electronically transferred to organisations in other countries.

In October 2006, in the matter of Australian Communications and Media Authority v Clarity1 Pty Ltd, the Federal Court imposed fines of $4.5 million and $1 million respectively on a Perth company and its managing director for repeatedly contravening the Spam Act 2003.

The recent decision of the Administrative Appeals Tribunal in Albanese and Chief Executive Officer of the Australian Customs Service took a restricted view of unreasonable disclosure of personal information for Freedom of Information Act purposes, but took a broad approach to the policy question of whether the disclosure of privileged material would cause real harm.

The Privacy Legislation Amendment (Emergencies and Disasters) Bill, presently in the Parliament, will enable privacy rules to be wound back when emergencies or disasters occur.

The High Court decision in McKinnon v Secretary, Department of Treasury may have the effect of widening the scope for Commonwealth agencies to refuse access to deliberative process documents.

The secrecy provision of the Public Service Regulations has been overhauled recently to ensure the effective working of government, without impinging unnecessarily on individual rights.

Commonwealth agencies need to be aware of the two restrictive tests used by the courts to interpret immunity provisions.

A recent High Court decision has confirmed the Commonwealth Parliament's ability to legislate on matters external to Australia while again drawing attention to the divergent views in the court on matters of constitutional interpretation.

Time is running out to register legislative instruments made between 1 January 2000 and 31 December 2004 on the Federal Register of Legislative Instruments (FRLI).

Further revisions to the National Code of Practice for the Construction Industry and the associated Implementation and Industry Guidelines have important implications for government agencies.

The Administrative Review Council's long-awaited report into the scope of judicial review has found that in some cases 'means other than judicial review' might provide a better solution.

In the recent decision of NAIS v Minister for Immigration, the High Court held that unreasonable delay can constitute an error which is reviewable in judicial review proceedings.

Two recent cases of the Federal Magistrates Court illustrate the importance of careful proof-reading when using templates for preparing statements of reasons.

With the Uhrig template reviews well underway, it is important to appreciate the complex legal issues involved and remember that governance is a means to an end.

Courts and tribunals have recently provided some guidance on what constitutes misbehaviour, in the content of a person's termination from a statutory office.

A major international conference – Corporate Governance in the Public Sector – will be held 8-10 March in Canberra.