Wednesday, 9 January 2019

Government buyers, are you up to speed on the new Local Jobs First Policy?

New Policy Overview


All Victorian Government departments and agencies procuring goods, services or construction need to consider the State's revised industry participation framework, the Local Jobs First Policy (Policy).

The Policy harnesses the Victorian Government's purchasing power to support Victorian businesses and workers by requiring certain local content and skills thresholds in procurement projects.  The Policy aims to develop local industries, create job opportunities and boost economic development in Victoria.

The existing Victorian Industry Participation Policy Act 2003 has been amended to the Local Jobs First Act 2003 (Act) which now comprises the Victorian Industry Participation Policy (VIPP) and the Major Projects Skills Guarantee (MPSG).

VIPP


VIPP applies to procurement activities funded by the State government and comes in two forms:
  1. Standard Projects are those where the procurement activity meets or exceeds either:
    1.1 $1 million in regional Victoria; or
    1.2 $3 million in metropolitan Melbourne or for state-wide activities.
  2. Strategic Projects are those where the procurement activity is valued at $50 million or more, excluding maintenance and operational costs.
The value of a project refers to the total budget allocated over the life of the project and not the value of individual contracts, excluding GST.  Depending on the project, VIPP requires that a percentage of a project's value is comprised of content from Australia or New Zealand (Local Content).

Local Content Requirements 


Standard Projects must have a minimum of 10% Local Content while Strategic Projects must meet Local Content requirements of at least:
  • 90% for construction projects;
  • 80% for services projects or maintenance projects; and
  • 80% for the maintenance or operations phase of a Strategic Project. 
Local Content requirements for other types of Strategic Projects will be set on a case-by case basis, on advice from the Industry Capability Network (ICN).

The ICN is a not-for-profit organisation funded by the Victorian Government and can assist parties in sourcing goods and services in local markets ('contestable goods or services').

Non-Contestable Goods or Services


If a good or service cannot be procured locally it is deemed non-contestable.  The cost of non-contestable goods or services may be subtracted from the Local Content requirement of a project.

MPSG


MPSG is a mandatory requirement for Victorian Government departments and agencies funding building, construction, infrastructure, civil engineering or other capital works contracts totalling $20 million or over (inclusive of GST).

MPSG requires a minimum 10% of the total labour hours for a project be performed by either Victorian apprentices, trainees or cadets, or from any combination from these groups.

The total labour hours of a project is calculated using formulas proscribed in the MPSG Guidelines published by Jobs Victoria.  Using the total cost of a project (inclusive of GST) a contractor can determine the amount of labour hours of the project in order to set a specific MPSG.

Tender Process


For projects covered by the Policy, bidders will be required to submit a Local Industry Development Plan (LIDP) for approval by ICN.

An LIDP must detail how a bidder will achieve Local Content and MPSG requirements and assists Government buyers to determine which bidder to award a contract to.

Reporting and Compliance


There are mandatory reporting and compliance requirements for any project covered by the Policy which must be included in procurement contracts.  Model clauses for reporting and compliance, (among other relevant clauses) will be released shortly.

A contractor's failure to comply with VIPP or MPSG requirements will constitute a breach of contract.  All breaches are reported to the Department Economic Development, Jobs Transport and Resources.  Non-compliance with VIPP or MPSG will be considered in any assessment or review of that contractor’s eligibility to tender for Victorian Government contracts in the future.

How we can help -further information


We provide responsive legal services exclusively for the Victorian Government and public sector and our team has extensive experience advising government buyers in a wide range of contexts.

We speak your language, share your values, and we understand the policy and accountability frameworks in which you operate.  Our ability to understand the complexities of government means we provide tailored and independent advice to help you serve the State of Victoria.

For responsive advice on procurement and the new Local Jobs First Policy please contact our team who have a long history of advising the Victorian Public Sector and are best placed to help you find strategic and practical solutions.

Please contact :

Rebecca Radford
Managing Principal Solicitor
9947 1403

Brendan McIntyre
Principal Solicitor
9947 1435

Benjamin Lunardi
Solicitor
9947 1440


Thursday, 3 January 2019

Recent amendments to the Coroners Act

The Justice Legislation Miscellaneous Amendment Act 2018 (Vic) (the Amendment Act) received Royal Assent on 25 September 2018.  As well as amending a number of justice-related Acts to "improve the law, reduce delay and protect victims", [1] the Amendment Act makes critical revisions to the Coroners Act 2008 (Vic) (2008 Act) to:

  • allow certain persons to apply to the Coroners Court of Victoria (the Court) for an amendment to the wording of a decision made by a coroner or the Court, without re-opening the death investigation; and
  • make it clearer that a person has the legislative option to have, under the Coroners Act 1958 (1958 Act), the Coroners Act 1985 (1985 Act) and the 2008 Act, findings set aside regardless of whether the investigation is re-opened, provided the Court is satisfied that there are new facts and circumstances that make it appropriate to do so.

The changes are in response to the Coronial Council Appeals Review which examined the review and appeal rights under the 2008 Act.

Section 76A - Amending the wording of a decision


The Amendment Act now enables, within three months after a decision is made, the following categories of people to apply to the Court for an Order to amend the wording of a decision made by a coroner or the Court in relation to a death investigation:

  • senior next of kin of a deceased person; or
  • an interested party in relation to an inquest in respect of the death; or
  • any other person that the Court is satisfied:
    • has a sufficient interest in the investigation; and 
    • that it is appropriate to be granted leave to make the application.

The new provision allows for an Order that the wording of the decision be amended if the following criteria is satisfied:

  • the amendment would not be inconsistent with a finding, under section 67(1) of the 2008 Act, in relation to the investigation to which the decision relates;
  • the amendment would not require the investigation to be re-opened;
  • the amendment does not appear to be prejudicial to a person (other than the applicant) who is an interested party in relation to an inquest in respect of the death; and
  • the amendment is appropriate in all the circumstances.

It is envisaged that this provision will allow for corrections of a mistake or removal of inappropriate comments, provided they do not change the substance of the finding.

An Order for amendment to the wording of a decision must be made by the coroner who conducted the original investigation unless that coroner no longer holds the office of coroner; or there are special circumstances as to why they cannot determine the application.

Prior to the Amendment Act, there was no legal power for a coroner to amend the wording of a decision or findings that they had made. The only legislative options available were:

  • for a person with a sufficient interest in the investigation to lodge an appeal, in the Supreme Court, against the findings of the coroner; or
  • for a person to lodge an appeal against a refusal by a coroner to re-open an investigation.

The new provision now allows for amendments to be made to a finding that are not captured by the slip rule in section 76 of the 2008 Act (which allows for the correction of accidental slips or omissions, or other clerical mistakes).

The Supreme Court matter of Hecht v Coroners Court of Victoria [2016] VSC 635 highlighted the need for this amendment.  This case involved an application by the deceased's parents to amend two impugned paragraphs of the coroner's findings which they maintained were adverse to the reputation of their deceased daughter.  Prior to the appeal, the parents made an application to the Court to re-open the investigation into their daughter's death and have the impugned findings set aside.  The parents' application was refused and they subsequently lodged an appeal in the Supreme Court.

Prior to the Supreme Court hearing, the parties reached agreement as to the disposition of the appeal to delete the two impugned findings. However, the Associate Justice declined to make the orders as his Honour was concerned there was no legislative basis for such an agreement.

Section 77 - Clarifying the provisions in relation to re-opening an investigation or setting aside a finding


When the 2008 Act originally came into force, it was commended for broadening appeal and review rights of families, better facilitating appeals to the Supreme Court, and permitting the Court to re-open investigations into a death regardless of whether a formal inquest was held.

Many of the fundamental changes were drawn from the work of the Victorian Parliament Law Reform Committee (VPLRC).  The VPLRC conducted a comprehensive analysis of the coronial system, as it existed under the 1985 Act.[2]

Despite the laudable aims of the 2008 Act, ambiguous wording of section 77 of the 2008 Act and the transitional provisions created a jurisdictional hurdle for parties seeking to re-open a historical investigation and set aside any findings which occurred prior to the commencement of the 2008 Act.  This was despite potentially critical new evidence concerning a death coming to light post commencement of the 2008 Act.

Judicial consideration


In early 2018, the State Coroner, Judge Sara Hinchey, was called upon to consider the above ambiguity, and consider her jurisdiction to re-open historical investigations for the purpose of setting aside certain findings.

Prior to the State Coroner reaching a conclusion on this point, the interpretation of section 77 of the 2008 Act was the subject of proceedings brought in the Supreme Court before his Honour Justice Niall.  Representatives for families of deceased persons argued that the 2008 Act was designed to enhance, not restrict, families' access to the coronial system and as such it could not have been Parliament's intention that section 77 not operate retrospectively.[3]

In the course of parties waiting for judgment in this matter, and as a response to a 2017 Coronial Council of Victoria Appeals Reference Report,[4] then Attorney-General Martin Pakula announced proposed changes to the 2008 Act to clarify the ambiguity.

What was the ambiguity?


The 2008 Act introduced a provision which allowed a person to apply to the Court for an order to re-open an investigation and set aside the findings of a coroner.  This was a broader right than what existed under the 1985 Act, which only allowed the State Coroner to revisit inquests, rather than investigations.[5]  However, 'findings of a coroner' and 'investigation' were not defined in the 2008 Act.  As such, it was unclear from the face of the legislation whether findings could be set aside, or an investigation could be re-opened, in circumstances where that investigation occurred under a predecessor act. 

In addition, the wording of section 77 created ambiguity as it only provided that some or all of the findings be set aside and that an investigation could only be re-opened if considered appropriate.

The Amendment Act now makes it clearer that a person has the legislative option to have (regardless of whether the findings were made under 1958 Act, the 1985 Act or the 2008 Act) findings set aside regardless of whether the investigation is re-opened, provided the Court is satisfied that there are new facts and circumstances that make it appropriate to do so.

Also of note are that the terms 'findings of a coroner' and 'investigation' are now defined in the 2008 Act.

Any investigations which are re-opened under this section will be conducted as if they are investigations under the 2008 Act.  The Amendment Act also extends the time limit for lodging an appeal against a refusal by the Coroners Court to re-open an investigation from 28 days to three months.

The Amendment Act also provides that the Attorney-General must cause a review, for the purpose of assessing the operation and effectiveness of amendments, to be conducted within three years of the amendments commencing.

For further information on the amendments and their implications please contact:

Jodie Burns
Managing Principal Solicitor
9032 3012

Laura Elliott
Solicitor
8684 0134
__________________

[1] Victoria, Parliamentary Debates, Legislative Council, 26 July 2018, 3401-02 (Jenny Mikakos, Minister for Families and Children).

[2] Law Reform Committee, Parliament of Victoria, Coroners Act 1985 (2006).

[3] Justice Niall had previously ruled that parties could not bring their applications under the repealed 1958 and 1985 Acts: See James v Mason [2018] VSC 170 and Spear v Hallenstein [2018] VSC 169.

[4] Coronial Council of Victoria, Coronial Council Appeals Review - Reference 4 (2017).

[5] See Coroners Act 1985 (Vic) s 59A.

Thursday, 13 December 2018

Let’s get this show on the road!


Often, our clients' projects require the temporary or permanent use and occupation of land to construct improvements, or to support nearby construction.

If some or all of that land is a road at law, it can only be used for the project if it is temporarily closed, which is not always possible, or discontinued.  The danger of not properly discontinuing the land's status as a road is that the use or occupation of the land may amount to public nuisance, with legal consequences. 

What is a road?

In Victoria, a road includes any area of land that is a highway at common law.  More specifically, a highway is an area of land, at soil level or in stratum, over which the public may pass on or over at all times.

It is not necessary that land is physically a road for it to be a highway at common law.  The land may be suitable only for pedestrian access or for use by bicycles or horse-riders, rather than cars or other vehicles.  Even where land is only capable of passage by ferry, the ferry route itself may be a highway.  As long as the land meets the legal requirements, it will be a highway, and therefore a road.

Roads also include areas of land (at soil level or in strata) regulated under statutes, such as the Road Management Act 2004 (RM Act).  Under the RM Act, roads are generally categorised as freeways, arterial roads, non-arterial State roads and municipal roads.

Who owns roads?

If you wish to temporarily or permanently access or occupy land which has the status of a road, you will probably need to negotiate with the land owner on the scope of the required rights and changes to the road's status.
As a general principle, the Crown owns land over which there is a freeway or arterial road, regardless of whether the road is at surface level or in stratum, as well as certain land declared as road under general legislation governing Crown land.  Otherwise, roads are generally owned by the municipal council of the municipal district in which the road is located.

Acquiring and dealing with land which is a road

If land is a road, it is generally not possible to exclusively access or occupy the land unless its status as a road is temporarily paused (where this option is available under legislation) or permanently discontinued.  First, it is necessary to identify the relevant legislative power to temporarily close or discontinue the road, and then to do so in accordance with the power.  

These powers exist in a wide range of statutes, such as the RM Act in relation to roads generally, and  the Project Development and Construction Management Act 1994 and the Major Transport Projects Facilitation Act 2009 in relation to roads over land which is required for a particular project.

A number of formalities may be required before a road can be discontinued, for example:
bringing the land within a declared project area;
public notification and/or consultation;
obtaining the consent of other parts of Government; and 
amending a planning scheme.

Depending on the applicable legislative power and exemptions, discontinuation of a road can be achieved in as little as 28 days or take as long as 18 months.  
Once the road has been formally discontinued in accordance with the relevant power, the owner of the land can deal with that land as it pleases.  As a general rule, where roads on Crown land are discontinued, the underlying land normally returns to unreserved Crown land status.

Need some help?

Victoria's roads are governed by a complex legal framework.  Our Property Team has expertise in advising Government clients on a broad range of issues that arise when accessing and acquiring rights to land comprising a road.

For further advice, please contact: 

Managing Principal Solicitor
03 9947 1430

Managing Principal Solicitor
03 9947 1410

Principal Solicitor
03 9947 1493

Senior Solicitor
03 9947 1433

Tuesday, 14 August 2018

What is in the Environment Protection Amendment Bill 2018?

The Environment Protection Amendment Bill 2018 (the Bill) is the second tranche of reforms following the Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority (EPA)

The first major reform, the Environment Protection Act 2017 created a new statutory objective for the EPA and clarified its focus; to protect human health and the environment from the harmful impact of waste and pollution.

The Bill, if passed, will repeal and replace the current Environment Protection Act 1970 (the old Act), and create a prevention-focussed regulatory regime that gives the EPA a wider array sanctions and controls to manage high-risk activity.

The Bill has a forced commencement date of 1 December 2020, but is intended to take effect from 1 July 2020.

General environmental duty

The cornerstone of the Bill is a general environmental duty modelled after the duty on employers in the Occupational Health and Safety Act 2004.  It creates a positive obligation on duty-holders to proactively minimise the risk of harm to health and the environment from pollution and waste.  Both individuals and people conducting a business or undertaking (duty-holders) breach the duty if they fail to take steps that are reasonably practicable to minimise the risk of harm.

The type of actions required of duty-holders are laid out in the Bill and include:

  • using and maintaining plant, equipment, processes and systems in a manner that minimises risks of harm to human health or the environment from pollution and waste; 
  • using and maintaining adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised; and
  • ensuring that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health or the environment from pollution and waste.

Those who breach the duty while conducting a business or an undertaking commit an indictable offence, and face a fine.

This duty will impact businesses, bodies and departments who engage in activities that pose a risk of harm to health or the environment from pollution and waste.

Permissions

There are three main tiers of permissions within the Bill: Licences (which are divided into operating, development and pilot project licences), permits and registrations.

In the old Act, licences and other types of approvals only applied to 'premises', whereas the Bill's permissions structure will apply to 'activities'.  The regulations will prescribe the types of activities that can be approved for each permission type.

The most easily granted permission, registrations, are meant for low to medium risk activity.  Permits are for less complex activities with a medium to high risk, and will include a standardised assessment process within the regulations.

The most onerous permission, in terms of application process and possible conditions is a licence.  It is designed for complex and high-risk activities and allows the EPA to customise conditions to suit the project.

Bodies that hold old permissions immediately prior to the Bill's commencement date will hold new permissions from the day the Bill commences.

Contaminated land

The Bill will create a duty to notify the EPA and an obligation to manage land contaminated by waste, a chemical substance or any other prescribed substance.  For the duty to apply, the contamination must be on or under the surface of the land, be present in a concentration above the background level and create a risk to human health or the environment.

If the land is contaminated, the Bill makes it clear that the person with management or control of the land is under the general duty to minimise risks of harm to human health and the environment from the contaminated land, which may include cleaning up the land.

The person with management or control must notify the EPA that the land is contaminated as soon as reasonably practicable.  Failure to do so results in a civil penalty.

Third party rights

The Bill will enable third parties to enforce breaches of the law and seek civil remedies where the EPA has not taken action.  The third party must be a person whose interests are affect by the contravention or non-compliance with the law, or anyone else with leave of the court where it is in the public interest.

If eligible, the third party has the same rights as the EPA to seek orders remedying or restraining breaches of the law, its regulations, or to licences and other permissions.

The right to enforce the law and seek remedies creates a new accountability mechanism on the EPA, where the regulator has failed or chose not to take action.

The Bill passed the Legislative Council on 9 August 2018.

For further information on the Bill and its implications, please contact:

Annette Jones
Principal Solicitor
8684 0444

Natasha Maugueret 
Managing Principal Solicitor 
8684 0223

This blog was produced with the assistance of Emma Buckley Lennox, Graduate Lawyer.

Monday, 23 July 2018

You can’t do that! Restricting use and sale of Government land

The Victorian Government Landholding Policy permits the sale or transfer of land to a government or community organisation for a public or community purpose where the terms of sale include a restriction on title reflecting that purpose which allows the State to control the future use and transfer of the land after disposal.[1]

The transfer of State owned or Crown land for public or community purposes will often be for nil consideration in recognition of the fact that the transferee will have obligations to make the land available for the intended purpose and to ensure that it is properly maintained for safe and enjoyable community use.

Once an agency has determined that it wishes to transfer land to an appropriate entity for public or community purposes, the next question is how best to ensure that the entity uses the land for the designated purposes and does not sell it to a third party to achieve a windfall gain or a profit.

Options for restricting use and sale of Government land


Restrictive covenants


As the Landholding Policy states, the restrictions are to be registered on the title to the land.  The traditional means of restricting use of land is via a restrictive covenant registered on the title of the land to be burdened by the covenant.  A restrictive covenant is an agreement between two landowners that one land owner will not do certain things on their land which could negatively affect the amenity of adjoining owners, for the benefit of the land held by the other owner. 

However, restrictive covenants are often not available to the State because they generally require that the State owns adjoining or reasonably contiguous land in freehold which will benefit from the restrictions set out in the covenant.  If these requirements are not met, the option will not be available.  The other challenge is that restrictive covenants can only include negative obligations (ie: an obligation not to do something on the land) and cannot oblige the burdened owner to spend money.

Statutory agreements


To address the shortcomings of restrictive covenants, various Acts provide for statutory agreements that can be entered into for public purposes and impose positive land use and development obligations on landowners.  Such agreements may be registered on the title to the land and can bind future transferees of the land, if transfer is permitted under the terms of the agreement.  Some of the more common statutory agreements are discussed below.

Section 173 of the Planning and Environment Act 1987 allows a responsible authority, commonly a local Council, to enter into an agreement with a land owner.  The agreement can provide for a restriction on the use or development of land, or any matter intended to achieve a planning objective in Victoria.  The responsible authority can enter into the agreement on anybody's behalf, and assumes responsibility for its enforcement once the agreement is recorded on the title to the land.

Where land is part of a designated project area, section 22 of the Project Development and Construction Management Act 1994 and section 49 of the Development Victoria Act 2003, allow the project authority under each Act to enter into an agreement with the transferee regarding use or development of the land.  In both cases, the agreements may be registered on title to the land as if they were an agreement under s 173 of the Planning and Environment Act 1987.  The key difference is that these agreements do not rely on the cooperation of the local Council to enforce the landowner's promises under the agreement and can instead by led and enforced by the project authority or facilitating agency.

Similarly, under s 69 of the Conservation, Forests and Lands Act 1987, the Secretary body corporate under that Act may enter into an agreement with a land owner relating to the management, use, development, preservation or conservation of land.  An agreement may also be entered into to give effect to the purposes of a law considered to be a relevant law.  The Act provides that any agreement will bind successors as long as the Secretary applies in writing to the Registrar of Titles to have it recorded on the title to the land.

A relatively recent example is the advent of the forestry and carbon management agreements as well as the carbon sequestration agreements.  These are provided for by a detailed scheme contained in the Climate Change Act 2017 (Vic).  The Act recognises proprietary rights in carbon sequestration and allows for the recording of various agreements between the landowner and the relevant person, which create binding obligations that run with the land and ensure the ongoing management of forestry, soil, and carbon sequestration rights.

As Property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  If you need further advice in relation to restricting the future use and transfer of State owned land, please contact:

Elizabeth Wortley
Senior Solicitor
9947 1433
elizabeth.wortley@vgso.vic.gov.au

Eloise Connelly 
Senior Solicitor
9947 1493
eloise.connelly@vgso.vic.gov.au


__________________

[1] Department of Treasury and Finance, Victorian Government Landholding Policy and Guidelines (September 2017) ii.

Tuesday, 17 July 2018

Functus Officio - myth or reality?

If you work as a government decision-maker, there may be times when you want to reconsider a decision you have made under an Act.  Perhaps there has been a change of policy or you are concerned there was a mistake in the first decision.  What are the lawful options available to you to reconsider that decision? 


Options for reconsideration of decisions


The options available will depend upon the legislative context in which the relevant decision has been made and the nature of the decision itself.  At a general level:

  • Where a decision is affected by 'jurisdictional error', it can, in many cases, be treated as no decision at all and revoked and remade (following the High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [1]).  Whether a decision is affected by jurisdictional error and may be treated in this way is a complex question on which we can provide advice.
  • Where the relevant legislation sets out a formal process for internally reviewing decisions (see, for example: Building Act 1993 (Vic), Pt 11, Div 4, sub-div 2), a decision can be reconsidered in accordance with the prescribed process.
  • Where a decision is not affected by jurisdictional error and no internal review process is prescribed, determining whether internal review is allowed (that is, without the decision being appealed to a court) can be a complex task, with which this article is principally concerned.

Indeed, this third scenario has recently been considered by the Full Court of the Federal Court in Minister for Indigenous Affairs v MJD Foundation Ltd (MJD).[2]

Background


Recent authorities on the source and scope of a decision-maker's power to undertake internal review must be understood in the context of the common law doctrine that a statutory power, once exercised, becomes spent and cannot be exercised again, without express statutory authorisation.  (This doctrine even has a fancy Latin name: functus officio).  The operation of this doctrine can prevent a decision-maker from exercising a statutory power in respect of more than one person or circumstance.

Legislation now seeks to avoid the inconvenient consequences of the operation of this doctrine, in provisions such as s 40 of the Interpretation of Legislation Act 1984 (Vic) (ILA) and s 33(1) of the Acts Interpretation Act 1901 (Cth) (AIA), which provide that statutory powers may be exercised 'from time to time'.  The operation of these provisions is considered further below.

The Full Court's decision in MJD


MJD concerned the Minister's power under s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) to direct that money be paid 'for the benefit of Aboriginals living in the Northern Territory'.  On the making of such a direction, the Act required an equivalent amount be debited from the Aboriginal Benefits Account. 

The Minister had directed under s 64(4) that a payment be made to a particular charity.  The charity then determined that it required additional funding, so sought to vary the size of the original grant.  Accordingly, the Minister gave a further direction that an additional sum be paid to the charity.  Before the additional amount was paid, there was a change of government and the incoming Minister decided to reverse the outgoing Minister's second decision (ie directing that the additional funds not be paid). 

The questions before the Full Court were whether s 33(1) of the AIA empowered the incoming Minister to revoke the outgoing Minister's decision and whether, assuming the provision operated as such, the Land Rights Act revealed a contrary intention sufficient to displace the operation of s 33(1).

Mortimer J, with whom Perry J agreed,[3] held that the Land Rights Act revealed such a contrary intention and that s 33(1) of the AIA had no application to the outgoing Minister's second decision.  This meant that the incoming Minister could not reverse the outgoing Minister's decision. 

Although that was a sufficient basis on which to determine the appeal, Mortimer J then made a number of observations about the scope of s 33(1).  Her Honour considered that s 33(1) did not extend to a general implication of a power to reverse or undo an exercise of power, whether by revocation of a decision made in exercise of the relevant power or otherwise.[4]  To the extent that such a power is to be found in legislation, the source of that power would be the legislation itself, rather than s 33(1) of the AIA.  The effect of s 33(1) is merely that, subject to any contrary intention, powers may be exercised and functions performed on more than one occasion, in relation to different individuals and circumstances.[5]

Victorian context


The leading Victorian authority on this issue is the Court of Appeal's, now 13-year-old, decision in Kabourakis v Medical Practitioners Board of Victoria (Kabourakis),[6] which was cited with approval in MJD.

Kabourakis concerned an application for judicial review of a decision made by the Medical Practitioners Board of Victoria to hold a second hearing on allegations that a doctor had engaged in unprofessional conduct, after an earlier hearing had found that the doctor had not engaged in such conduct.  The relevant professional supervision scheme provided for the Board to hold a preliminary investigation, which it did, as part of which it received a number of reports from medical professionals that were relevant to the specific allegations made against the doctor.  Following the preliminary investigation, a panel of the Board was convened to hold an informal hearing on the allegations.  After the panel found that the doctor had not engaged in unprofessional conduct, the Board realised that it had neglected to provide the panel with one of the reports that it received during its preliminary investigation. 

The primary judge held that the error, a factual one, was sufficient to enliven a power in the Board to revisit the earlier decision (on the basis of the High Court's decision in Bhardwaj).  On appeal, the Court of Appeal held that Bhardwaj did not apply (because the error was non-jurisdictional)[7] and that the Board otherwise lacked power to revisit a final and binding decision about the doctor's conduct.[8] 

Nettle JA, with whom Chernov JA agreed, pointed to a number of features of the statutory scheme as revealing an intention that findings and determinations of the Board, which do not involve jurisdictional error and which are not challenged in accordance with procedures prescribed by the Act or by judicial review, 'are effective for all purposes notwithstanding they may involve reviewable error'.  This construction also reflected 'the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand'.[9]

Having arrived at a construction of the legislation that did not permit the Board to revisit its earlier decision, Nettle JA also expressed doubt as to whether s 40 of the ILA would operate to imply a general power to add to, subtract from or reverse a previous exercise of the power.[10]

Determining whether internal review can be conducted


Ultimately, whether a government decision-maker is empowered to reconsider, alter or revoke an administrative decision will be a matter of statutory construction, which will require close consideration of the relevant legislative scheme.

Relevant factors may include:

  • whether the decision in question is of a character usually understood as being irrevocable;
  • whether the power in question must be exercised upon satisfaction of certain criteria; 
  • whether the decision affects a person's rights;
  • whether the decision triggers certain other obligations under the statutory scheme; and
  • whether the statutory scheme provides for a decision concerning rights following on some process of formal determination.

Further information


The VGSO has extensive experience providing advice to government decision-makers on review of administrative decisions and can assist decision-makers to design internal review procedures and draft relevant policies where no such procedures or policies have been prescribed by legislation.  For advice in this respect, please contact Alison O'Brien, Assistant Victorian Government Solicitor, or Leveasque Peterson, Assistant Victorian Government Solicitor.

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0277

Leveasque Peterson
Assistant Victorian Government Solicitor
8684 0462

This blog was written by Maya Narayan, Senior Solicitor, and Jack Maxwell, Solicitor.

___________________________

[1] (2002) 209 CLR 597.
[2] (2017) 250 FCR 31.
[3] MJD, [256] (Perry J).  Perram J, in dissent, held that s 33(1) could be invoked as a source of power to revoke the decision in question and that no contrary intention sufficient to oust the operation of that provision was evinced by the relevant legislative scheme: [62], [96].
[4] MJD, [100] (Mortimer J).
[5] MJD, [254] (Mortimer J).
[6] (2006) 25 VAR 449.
[7] Kabourakis, [4] (Warren CJ), [6] (Chernov JA), [43]-[46] (Nettle JA).
[8] Kabourakis, [6] (Chernov JA), [83] (Nettle JA).
[9] Kabourakis, [48] (Nettle JA).
[10] Kabourakis, [83] (Nettle JA).

Monday, 14 May 2018

The 2018-2019 Victorian Budget: Does your project involve sale, acquisition or leasing of land?


In response to the demands placed on existing State services and public infrastructure by strong population growth, the Victorian Budget announced allocation of funding for several substantial infrastructure projects.  Funded projects have been identified in diverse fields, such as: road and rail; building and expanding hospitals; purchasing land for new schools; and delivering new or upgraded facilities for emergency services staff and volunteers.  In addition, the Federal budget announced funding for the State's Airport Rail Link and North East Link freeway infrastructure projects.  In order to deliver these infrastructure projects, sponsoring agencies will need to acquire, sell, lease and access land, and in doing so, navigate legislative and policy frameworks regulating Government dealings with land.

The Victorian Government Land Transactions Policy and Guidelines April 2016 establishes strict requirements for Victorian Government agencies when dealing with the sale, acquisition and leasing of land.  Key features of the policy include that in the absence of an exemption, agencies:

  • must obtain the Victorian Government Land Monitor's approval for any sale or purchase of an interest in land with a value of $750,000 or more before an offer is made;
  • must not grant an interest in land at a price less than the current market rent or sale value, as determined by the Valuer-General Victoria (VGV);
  • must not purchase an interest in land at a price which is greater than the current market rent or sale value, as determined by the VGV;
  • must not sell any land without following a public process such as an auction, tender or expression of interest campaign;
  • prior to offering land for sale by a public process, have in place the most appropriate zoning which enables the land to be used or developed in accordance with its highest and best use; 
  • must not grant a lease of land which contains an option to purchase; and
  • must have regard to the existence of native title rights and interests in the land.

Where a lease over Crown land is proposed, an agency must consider: whether the land is reserved for a public purpose; who the appointed land manager is; the criteria for approving the permitted use and agreement terms as set out in legislation; and the maximum tenure lengths permissible.  These are typically set at 21 years for leases and 10 years for licences (each including options).  This analysis will help to identify the Government entity with authority to grant the lease and any salient legislative restrictions such as maximum terms and limitations on permitted uses.  The Leasing Policy for Crown Land in Victoria 2010 administered by DELWP ensures a consistent approach to leasing of Crown land by requiring:

  • use of DELWP's standard form leasing documentation; and
  • all lease proposals by a land manager other than the Minister for Energy Environment and Climate Change to have the Approval in Principle of the Minister and subsequent terms and conditions approval.

The VGSO Property and Native Title Teams have extensive experience in Government property transactions and are well placed to assist agencies in navigating compliance with legislation and policies applicable to sale, acquisition and leasing of land.

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Mary Scalzo
Managing Principal Solicitor
9947 1419