Wednesday, 4 December 2019

New Victorian workplace manslaughter offences

Victoria now joins the Australian Capital Territory and Queensland in having specific health and safety manslaughter laws in place.  On 26 November 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 was passed, without amendment, by the Victorian Legislative Council and will commence operation by 1 July 2020.

This legislation creates two offences of workplace manslaughter in the Occupational Health and Safety Act 2004 (OHS Act) for the following duty-holders:

  • a person (which includes Victorian public sector bodies) who is not a volunteer.
  • a person who is an officer of an applicable entity, who is not a volunteer.

These offences have significant implications for both employers and officers.

A body corporate found to have negligently caused the death of an employee or member of the public will face fines of up to $16.5 million, and individuals will face up to 20 years in jail.

What constitutes 'workplace manslaughter'?


The new offences provides that employers, self-employed people and officers of the employers must not engage in conduct that:

(a) is criminally negligent; and

(b) constitutes a breach of an applicable duty that the person owes to another person; and

(c) causes the death of a person at or near a workplace.

An entity is an applicable entity if it is a body corporate or an unincorporated body or association or a partnership.  As such, it will also apply to the Crown and Victorian public sector bodies.

Key takeaways


  • two new offences of workplace manslaughter will commence operation in the OHS Act from 1 July 2020, at the latest.
  • the new offences will be not able to be determined in the Magistrates' Court.
  • WorkSafe Victoria will investigate the new offences of workplace manslaughter using their existing powers under the OHS Act.  
  • the privilege of self-incrimination will be able to be claimed by an individual.
  • volunteers and employees who are not 'officers' cannot be charged with workplace manslaughter under the OHS Act.
  • there will be no statutory time limit within which WorkSafe can bring a charge of workplace manslaughter.
  • the new offences will capture all types of workplace risks that cause death, including mental health risks and long-term occupational diseases.  For example, a suicide that is the direct result of negligent workplace practices and policies that substantially contribute to the death may constitute workplace manslaughter.
  • the Andrews Government has committed a $10 million package to boost WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences.

The VGSO Occupational Safety Team provides advice and conducts litigation in relation to all aspects of Victorian public sector occupational health and safety.  In particular, the Occupational Safety Team can provide advice and training to Victorian public sector bodies on their rights and obligations as a result of the introduction of these new workplace manslaughter offences.


To find out more contact:


Jodie Burns
Managing Principal Solicitor
Victorian Government Solicitor's Office

Harry Kinkead
Senior Solicitor
Victorian Government Solicitor's Office

Tuesday, 3 December 2019

VCAT confirms scope of data security obligations when serving documents

A recent VCAT decision found that privacy obligations with respect to court or tribunal documents that are served on a party cease upon valid service, even if the recipient refuses to accept service and abandons the documents.

On 1 December 2017, police officers attended Mr Zeqaj's workplace to serve him with documents on behalf of the Australian Taxation Office.  When Mr Zeqaj refused to accept service, the police officers placed the documents down in his presence and left.  Mr Zeqaj alleged that by serving him at his workplace and by leaving the documents unattended, Victoria Police contravened Information Privacy Principle (IPP) 4.1, which provides that an organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.

VCAT found that Victoria Police had not contravened IPP 4.1 because the disclosure was authorised.  Victoria Police had collected the personal information for the purpose of serving it on Mr Zeqaj, and had effected service by identifying Mr Zeqaj and giving him 'ready and unimpeded means of exercising physical custody or control' over the documents.  Once the documents had been served, Victoria Police no longer 'held' the information within the meaning of IPP 4.1 and any unauthorised access from that point was a result of Mr Zeqaj's decision not to take possession of the documents.

VCAT also found that it did not have jurisdiction to consider Mr Zeqaj's claim that his rights under the Charter of Human Rights and Responsibilities Act 2006 had been breached because the claim had not been included in the original complaint to the Information Commissioner, or in the referral from the Commissioner to VCAT.

Contact us: 

Louise McNeil
Senior Solicitor
louise.mcneil@vgso.vic.gov.au

Catherine Roberts
Lead Counsel
catherine.roberts@vgso.vic.gov.au

Case: Zeqaj v Victoria Police (Human Rights) [2019] VCAT 1641

Thursday, 28 November 2019

How to vary a custodial supervision order: clarifying the legal test

In a recent decision in Hammond (a Pseudonym) v Secretary to Department of Health and Human Services, the Court of Appeal took the opportunity to clarify when a court can vary a Custodial Supervision Order (CSO), a type of supervision order that can be made where a person is found unfit to stand trial or not guilty due to mental impairment. The decision gives further useful guidance about the relevant test and criteria for determining when such orders may be varied.

Key takeaways


  • When deciding whether to vary a CSO to an Non-Custodial Supervision Order (NCSO), the test is whether doing so would 'seriously endanger' the applicant or members of the public if released from the CSO. Courts must address this question directly, ensuring that restrictions on the person's freedom are kept to a minimum consistent with community safety.
  • If an appeal is unsuccessful, the Attorney-General can avoid an order to pay costs by showing exceptional circumstances, such as responding to a novel question of law.

What does the Act say?


Courts have the power to vary or confirm a CSO under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act). The court has three options under the Act:

  • to confirm the order;
  • to vary the place where the person is held in custody; or
  • to vary the order to an NCSO.

Section 32(2) of the Act is of particular note: a court must not vary a CSO to an NCSO unless satisfied that the person's release will not 'seriously endanger' them or members of the public. In reaching its decision, the court must take into account a number of considerations, such as the nature of the person's impairment and the need to protect the public from any danger. Courts must also apply the general principle that restrictions to a person's autonomy should be kept to the minimum consistent with the community's safety.

Mr Hammond's case


In 2010, Danyl Hammond (a pseudonym) killed his partner while experiencing psychosis and was placed on a CSO. In 2018, Mr Hammond applied to vary his CSO to an NCSO while he was on a period of extended leave from custody. Justice Champion decided not to vary the CSO and concluded that there was no 'substantial reason' to depart from another judge's previous extended leave grant. Further, Mr Hammond's circumstances had not changed sufficiently, and it was necessary to monitor his progress in the community for a longer period. Mr Hammond appealed that decision, arguing that the judge had failed to apply the correct test in deciding whether to vary the CSO.

The Court's decision


The main issue before the Court of Appeal was the proper test that judges should use when deciding whether to vary a CSO. The Court found in favour of Mr Hammond, affirming that the central task is to determine whether varying an order to an NCSO will 'seriously endanger' the person or the public.

The majority stated that the court must assess the probability of harm, as explained in NOM v Director of Public Prosecutions. In answering this question, the court should take into account the mandatory considerations (including whether the person is likely to endanger themselves or others) and should keep restrictions to a person's freedom to a minimum consistent with community safety.

The Court also shed light on some of the questions that should not determine the outcome of an application. For example:

  • that a person is on an extended leave order does not preclude them from successfully arguing that a CSO should be varied; and
  • it is not necessary for a person to show a positive change in their circumstances. (The majority of the Court reasoned that such an approach is inconsistent with the Act's requirement for an independent assessment of the risk of 'serious endangerment'.)

No costs order


The Court of Appeal decided not to order the Attorney-General to pay the costs of the proceeding on the following grounds:

  • the Attorney-General served the public interest by answering a novel legal question and assisted the Court by putting a clear position with substance;
  • Mr Hammond did not personally incur any expenses (he was funded by Legal Aid) and had no grounds to expect to receive costs;
  • the proceeding had the hallmarks of a criminal appeal where costs are not usually awarded against the State; and
  • awarding costs against the Attorney-General amounts to transferring funds 'from one emanation of the State to another'.

To find out more contact:


Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Tyrone Connell, winter clerk, July 2019.

Friday, 25 October 2019

A question of time: calculating statutory time limits

Statutory time limits for taking action are described in different ways within legislation, making (what should be) simple maths complicated for lawyers and decision-makers.

The Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) includes the following two examples of statutory time limits:

  • a Ministerial call-in notice is of no effect unless it is given no later than 7 days before the day fixed for the hearing of the proceeding (cl 58(2), Sch 1, VCAT Act);
  • a request to a decision-maker for a statement of reasons must be made in writing within 28 days after the day on which the decision was made (s 45, VCAT Act).

These examples alone could cause confusion. Does 'no later than seven days' mean one week, or more than a week? Does 'within 28 days' include the 28th day? What if the final date falls on a weekend?

The laws on statutory time limits


Luckily, we do have some guidance on how to count these time periods. Section 44 of the Interpretation of Legislation Act 1984 (IL Act) sets out rules for counting days under Victorian legislation. For example:

  • If a time limit for 'doing' something falls on a Saturday, Sunday or a public holiday, the time limit should extend to the next day that is not a Saturday, Sunday or a public holiday. This is sometimes called the 'extension rule'; 
  • If a period of time ends on a specific day, that day is included in the period;
  • If a period begins on a specific day, that day is not included in the period.

Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156 


Section 44 of the IL Act was directly at issue in the recent Supreme Court of Appeal decision of Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156.

The facts


The Applicant (Waterfront) owns land in Port Melbourne. On 24 October 2016, Waterfront applied to Port Phillip City Council (Council) for a planning permit to develop its land for the purpose of a 10 storey development.  The application was refused. On 12 September 2017, Waterfront commenced proceedings in the Victorian Civil and Administrative Tribunal (Tribunal) to review the Council's decision.

The Minister for Planning (the Minister) 'called in' (i.e. 'intervened in') the proceeding, pursuant to the power under cl 58(2) of Schedule 1 of the VCAT Act.

To be valid, a call in notice must be submitted no later than 7 days before the date of the hearing. In this case:

  • the hearing was listed on Monday, 30 July 2018; and
  • the Minister called in the proceeding on Monday 23 July 2018.

The issue was whether the call in notice was submitted in time. The Court of Appeal held that it was, and so the Ministerial call in was valid.

The Court reasoned as follows:

  • as a first step, 'no later than 7 days before' Monday 30 July 2018 meant that the last date for the call in notice to be filed was Sunday 22 July 2018 (all parties agreed with this first proposition);
  • under s 44 of the IL Act, Sunday is a 'holiday' and, applying the extension rule, if the last day for doing something falls on a holiday, the time extends to the following day;
  • therefore, the last day that the Minister was permitted to call in the proceeding was Monday 23 July 2018.

The Court rejected Waterfront's arguments that the extension rule in the IL Act did not apply to the statutory time frame in this case, due to the phrase 'no later than' and the adverse impacts on the Tribunal and the parties arising from a 'late' call in notice. In particular, the Court emphasised that the extension rule should be the 'general rule', and, because it is a rule of 'practical common sense', it should only be displaced where the legislation expressly intends for it to be displaced. The Court found there was no such express intention in this case.

Key takeaways


The decision is a reminder that calculating statutory time frames can be more complicated than you might think. There will be rules in other statutes dictating how to calculate those particular timeframes, some of which may lead to surprising results. The Waterfront decision is a perfect example of this - as a matter of law, applying the extension rule to the phrase 'no later than 7 days', the time to file a call in notice was seven days before the hearing.

For further information, please contact:

Annette Jones
Principal Solicitor
8684 0431

Lisette Stevens
Solicitor
8684 0475


Thursday, 10 October 2019

Language matters in the transition to new legislation

The importance of clear and well-drafted transitional provisions was illustrated in the case of Director of Public Prosecutions (DPP) v Lyons (a pseudonym) [2018] VSCA 247 (Lyons).

Key points:


  • Despite some unclear and inconsistent language in the 2018 Act's transitional provisions, the Court focused on the "irresistibly clear" language in Clause 5(2) of Schedule 4 to the 2018 Act and concluded that the application for a renewal of a detention order was to be heard and determined using the 2018 Act.
  • Use clear language when drafting transitional provisions and ensure consistency of word use within clauses! When words can be given a ‘plain meaning’ this interpretation will be followed.
  • A clause will only have a deeming effect if clear and express words are used (e.g. "is deemed to be").
  • When using the Charter to interpret a statutory provision, the Court still looks first to the ‘plain meaning’ or the clear language of the statute.

Background


In Victoria, serious sex offenders and serious violent offenders that present an unacceptable risk to the community can be subject to ongoing supervision or detention after they have served their prison sentence. This post sentence scheme is contained in the Serious Offenders Act 2018 (2018 Act), which replaced the Serious Sex Offenders (Detention and Supervision) Act 2009 (2009 Act).

In Lyons, the Department of Public Prosecutions (DPP) sought to renew a detention order against Mr Lyons. The application was made under the 2009 Act; however, before the matter could be heard the 2009 Act was repealed and the 2018 Act commenced.

Which Act should the Court use to make its decision?


If the 2009 Act applied, only Mr Lyons’ risk of sexual re-offending could be considered by the Court. If the 2018 Act applied, the Court could consider Mr Lyons’ risk of sexual re-offending, violent re-offending, or both.

Clause 5(2) of Schedule 4 to the 2018 Act [Applications commenced under superseded Act that have not been determined] contains the transitional provisions and is as follows:


(1) Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day— 

(a) an application for a supervision order, a detention order or an interim order; 

(b) an application for the renewal or extension of an order referred to in paragraph (a);   

(c) an application for the review of an order or a condition of an order referred to in paragraph (a). 

(2) An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act.
[our emphasis added]

 

The Court of Appeal considered the proper interpretation of the words ‘made under this Act’. The parties' positions were as follows:

  • The DPP submitted that the application should be determined using the 2009 Act (meaning the Court could only consider Mr Lyons’ risk of sexual re-offending) but that the order should be ‘made’ following the form of the 2018 Act. The DPP relied on the text of clause 5(1).
  • The Secretary to the Department of Justice and Community Safety submitted an order for Mr Lyons should be made and determined using the 2018 Act, meaning the Court could consider Mr Lyons’ risk of sexual or violent re-offending, or both.

The Court of Appeal's Judgment - key aspects of the decision


The Court focused on the "irresistibly clear" language in clause 5(2), namely ‘made under this Act’. The Court considered that these words clearly meant the application for a detention order against Mr Lyons was to be heard and determined using the 2018 Act. The Court also considered that this construction is consistent with the primary purpose of the 2018 Act which is to provide, from the commencement of the 2018 Act, for enhanced protection of the community.

The Court noted that its interpretation does not render clause 5(1) redundant because it operates to ensure that neither the DPP nor the Secretary need to bring fresh applications upon the commencement of the 2018 Act and repeal of the 2009 Act. Clause 5(1) also requires that any question concerning the adequacy of procedural steps taken before 3 September (the commencement date of the 2018 Act) is to be determined in accordance with the 2009 Act.

Some other points made by the Court of Appeal


Deeming provision: If clause 5(2) was a deeming provision, any order made under the 2009 Act would be 'deemed' to be an order made under the 2018 Act. The Court determined that clause 5(2) was not a deeming provision as it lacked the clear and express wording required of a deeming provision (for example, in Spear v Hallenstein 1  - the specific words 'is deemed to be' were used).

The Charter of Human Rights and Responsibilities: The Charter requires that, where possible, laws should be interpreted in a way that is compatible with human rights. If the 2018 Act applied, Mr Lyons' human rights would be detrimentally impacted because there would be an interference with Mr Lyons' liberty, freedom of movement and privacy on broader grounds than were previously available under the 2009 Act. However, the Court considered that there was no room for the Charter here because the 2018 Act's words were so clear. Also, the Statement of Compatibility (which records the Act's compatibility with human rights) did not refer to the transitional provisions. The Court held that the Minister's silence on a particular topic cannot be used to draw an inference as to the statute's proper interpretation nor can it be used as a substitute for an objective reading of the words in dispute.

Inconvenience caused? The Court acknowledged that inconvenience would result from the 2018 Act being used to determine the application for Mr Lyons (and for other matters). However, the Court found that some inconvenience is unavoidable when transitioning to new laws.

To find out more contact:


Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Rita Scammell, winter clerk, July 2019.


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Spear v Hallenstein [2018] VSC 169.

Monday, 30 September 2019

So I'm a 'retail' landlord - but what does that mean?

Government agencies are often landlords of 'retail premises' under the Retail Leases Act 2003, for example where the agency leases land at a train station for use as a café or part of a public hospital for use as a florist or kiosk.

The Retail Leases Act was introduced in 2003 to provide greater certainty and fairness in the commercial relationship between landlords and tenants. This was driven by a desire to protect and provide greater security of tenure for small businesses.

When you are negotiating a lease, it is crucial to identify at the outset of negotiations whether it is a 'retail lease' within the meaning of the Act. Where the Act applies, the parties to a lease cannot agree otherwise. A provision in a lease is void if it is inconsistent with anything in the Act.

In some instances, if the Act applies, a landlord may even prefer not to proceed with the transaction, for example, if the premises are likely to require significant and expensive capital repair or refurbishment, as this burden could fall on the landlord. It may be more economical to find a tenant who wishes to make use of the premises for non-retail purposes, if the nature of the premises permits.


Landlords' obligations


The Act imposes quite onerous obligations on landlords. Depending on the circumstances, there can be serious consequences for failure to comply, for example, the tenant may have a right to terminate (or conversely, to extend) the lease.

Some of the main obligations which the Act imposes on landlords are:

  • Provide a copy of proposed lease and information brochure: the landlord must provide to a tenant copies of the proposed lease and the Victorian Small Business Commission information brochure, as soon as the parties enter into negotiations. Failure to do so is an offence against the Act.
  • Disclosure requirements: the landlord is required to provide a Disclosure Statement to a tenant at least 7 days before entering into the lease, which sets out the key information about the lease.  If the landlord fails to provide a Disclosure Statement, the tenant may, after complying with certain notice requirements, withhold rent owed and is not liable to pay rent for the period from the day on which the tenant's notice was given until the tenant receives a Disclosure Statement. The tenant may also terminate the lease at any time before the end of 7 days after receiving the delayed Disclosure Statement.
  • 5-year minimum term: the landlord must offer an initial term of at least 5 years (but the tenant can waive its right to a 5-year term with the Small Business Commissioner's approval).
  • Provide a copy of the executed lease: the landlord must give the tenant a copy of the lease signed by the parties within 28 days of it being signed. If the landlord fails to do so, the tenant may give written notice terminating the lease.
  • Obligation to notify tenant of options for renewal: where a lease contains an option to renew, the landlord must give the tenant notice in writing of the last date to exercise the option, between 6 and 12 months in advance of the date on which the option is no longer exercisable. Failure to do so means that the lease continues, and the period for exercising the option extends to six months after the landlord notifies the tenant as required.
  • Notice of landlord's intentions concerning renewal: where a tenant does not have an option for renewal under the lease, the landlord must also give written notice between 6 and 12 months before the end of the lease. This notice must either offer lease renewal or state that the landlord is not offering a lease renewal. If the landlord fails to give notice within the period, the lease continues until six months after notice is finally given to the tenant, or when the tenant terminates the lease.
  • Must allow transfer of lease: a landlord can only refuse consent to assign a lease in limited circumstances set out in s 60(1) of the Act, such as where the proposed use is not consistent with the permitted use under the lease.
  • Obligation to maintain premises: the landlord must maintain the structure, fixtures and plant and equipment in the premises consistently with their condition at the beginning of the lease. The landlord cannot pass on capital costs incurred in complying with this obligation, such as major repairs and replacements, to the tenant.1
  • Cannot pass on certain costs: the landlord cannot recover from the tenant any capital costs (unless the lease expressly requires the tenant to undertake certain specific capital works at the tenant's own cost), depreciation, land tax or legal costs related to preparing the lease.
  • Unconscionable conduct: the Act prohibits unconscionable or unfair conduct by both landlords and tenants, and allows for compensation for loss caused by that conduct. 


Resolving disputes


Where parties cannot agree on resolution of an issue arising under a retail premises lease, either party may refer the dispute for mediation to the Victorian Small Business Commission (VSBC).

Only once the VSBC certifies that mediation has failed, can the parties apply to the Victorian Civil and Administrative Tribunal (VCAT) for a formal hearing.

VCAT has exclusive jurisdiction to hear and determine some disputes arising under a retail premises lease. VCAT also has the same jurisdiction and powers as the Supreme Court in relation to proceedings for relief against forfeiture. This means that tenants can seek an order allowing them to stay in the premises, even in circumstances where they have breached the lease and failed to rectify the breach within time, by satisfying VCAT that the tenant is in a position to promptly rectify the breach and the lease should be reinstated.

As property law experts within Government, the VGSO Property Team is well placed to assist you with retail leasing arrangements and other property issues.

For advice and assistance, please contact:

Anthony Leggiero
Managing Principal Solicitor
Ph: 9947 1430

Margaret Marotti
Managing Principal Solicitor
Ph: 9947 1410

Elizabeth Wortley 
Principal Solicitor
Ph: 9947 1433

This blog was prepared with the assistance of Margie Brown, Law Graduate.

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Small Business Commissioner Reference for Advisory Opinion [2015] VCAT 478

Friday, 9 August 2019

#dismissed: High Court upholds dismissal of public servant for anonymous tweets critical of government

In a landmark case on whether a public servant's use of social media can be a valid reason for terminating their employment, the High Court has unanimously upheld restrictions on a public servant's ability to make public comment where it may damage the integrity and good reputation of the public service.

In doing so, the Court has emphasised the importance of an apolitical and professional public service that will faithfully implement accepted government policy, irrespective of employees' personal political beliefs.

In Comcare v Michaela Banerji [2019] HCA 23 (7 August 2019), a now former Department of Immigration employee Ms Michaela Banerji had an anonymous twitter account where she was highly critical of Government and Opposition immigration policies, members of Parliament and the Department of Immigration.  After an investigation uncovered her identity, she was dismissed from her role for inappropriately using social media in contravention of the Public Service Act 1999 (Cth) (PS Act), the Australian Public Service (APS) Code of Conduct and APS Values.

Ms Banerji argued that the PS Act and APS Code of Conduct imposed an unjustified burden on the implied freedom of political communication under the Constitution.

The Court unanimously rejected this argument, emphasising that the implied freedom of political communication is not a personal right to free speech.  The Court held that the restrictions placed on political communication by public servants under the PS Act were consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance and protection an apolitical public service.

However, the Court emphasised that any action taken in response to a breach of the PS Act or APS Code of Conduct must be proportionate to the nature and gravity of the employee's misconduct.  Depending on the circumstances, this may range from a simple reprimand to the termination of a person's employment.  In responding to a potential breach, an employer must act reasonably, provide procedural fairness and take into account the personal circumstances of the employee.

A summary of the Court's decision can be found here.

VGSO's Workplace Relations and Occupational Safety Branch has significant expertise and experience in advising employers on potential breaches of the Code of Conduct for Victorian Public Sector Employees and Victorian Public Sector Values.  We also run training programs for human resources professionals in the public sector, including on the use of social media in the workplace. 

VGSO's Constitution and Advice Team also has significant experience and expertise in dealing with the intersection between the implied freedom of political communication and state laws, including decision-making under those laws.

If you work in the public sector and require further information please contact us:

Workplace Relations team

Frances Anderson
Assistant Victorian Government Solicitor

Ronan O'Donnell
Solicitor, Workplace Relations and Occupational Safety

Constitution and Advice team

Alison O'Brien
Assistant Victorian Government Solicitor

Jessica Cleaver
Managing Principal Solicitor, Constitution and Advice team

Maya Narayan
Principal Solicitor, Constitution and Advice team


This blog was prepared with the assistance of Margie Brown, Law Graduate.