Monday, 22 January 2018

Court of Appeal considers parallel regulation under the Water Act 1989 and the Planning and Environment Act 1987

A recent decision of the Victorian Supreme Court of Appeal has provided authority on the interrelationship between parallel frameworks under the Water Act 1989 (Water Act) and the Planning and Environment Act 1987 (PE Act). In Stanley Rural Community Inc v Stanley Pastoral Pty Ltd, it was ultimately found that licences conferred under the Water Act cannot be limited by the PE Act without an express provision.

What is this case about? 


In 2013, Stanley Pastoral Pty Ltd purchased land which included a licence under s 51 of the Water Act to ‘take and use’ water on its property.  Stanley Pastoral applied to Goulburn Murray Water to split the entitlement to extract 19ML from groundwater and 31ML from surface water.

After the entitlement split was granted, Stanley Pastoral applied to Indigo Shire Council (Council) for a planning permit for the use and development of the land for a 'utility installation', which is defined as land used to collect, treat, transmit, store or distribute water.  Specifically, the permit application was for a change of use from an existing bore to the development of a water transfer station to include a shed, water silos, and associated equipment.

This case commenced after Council refused to grant the permit on the basis that the groundwater extraction would adversely affect the aquifer, diminish the potential for the land for agriculture and horticulture, and prejudice the land served by nearby bores.

VCAT grants permit


At first instance, VCAT granted the permit, finding that the means by which groundwater is extracted was not subject to controls under the PE Act or the planning scheme.  VCAT found that the Water Act provides the necessary controls for the flow, use and management of water (including groundwater).

Objectors appeal the decision


Objectors from Stanley Rural Community Inc appealed VCAT's decision to the Supreme Court.  McDonald J upheld the grant of the permit but for different reasons.

Intention to limit a conferred right should be expressly demonstrated


His Honour centred on the use of term 'expressly' in s 8(6) of the Water Act, which deals with continuation of private rights to water:

A right conferred by this section is limited only to the extent to which an intention to limit it is expressly (and not merely impliedly) provided in…any other Act or in any permission or authority granted under any other Act.

Stanley Pastoral's right was conferred under s 8(4)(a), which grants a person the right to use water taken or received by that person in accordance with a licence or other authority issued to that person under the Water Act.

His Honour found that because there were no words in the PE Act or in the planning scheme expressly qualifying the rights of a water licence under the Water Act, then rights created under the Water Act to take and use groundwater cannot be the subject of objection or control pursuant to a planning scheme.

Final outcome


In a decision dated 20 December 2017, the Court of Appeal refused leave to appeal. 

The Court found that powers to regulate or prohibit use or development of any land under s 6(2) of the PE Act do not expressly demonstrate an intention to limit the rights conferred under s 8 of the Water Act.  Therefore, the PE Act did not limit the right under s 8(4)(a) of the Water Act.  Their Honours further held that the words in parentheses 'and not merely impliedly' within s 8(6) of the Water Act make this clear.

The Court also found that the right conferred by s 8(4)(a) of the Water Act to use water 'taken or received…in accordance with a licence…under this Act' is:

one upon which the permit applicant can rely in respect of water taken and used under the s 51 take and use licence, by virtue of s 8(6) as 'limited only to the extent to which an intention to limit is expressly (and not merely implied) provided in…' statutory instruments of the various types specified.

Separately, their Honours overruled VCAT's finding at first instance that the planning scheme might have made express provision to limit water rights.  The Court cast doubt on the prospect that a planning scheme meets the description found in s 8(6) of the Water Act of 'any permission or authority granted under any other Act'.

Finally, the Court rejected the applicant's argument that the 'real and substantial purpose' of the proposed land use was an innominate 'groundwater extraction' use.  Instead, their Honours confirmed VCAT's finding that the 'real and substantial purpose' of the proposed land use fit within the broad definition of 'utility installation' in the planning scheme - therefore requiring a planning permit for 'utility installation'.

Key take-away


The case demonstrates that licences conferred under the Water Act cannot be limited by the PE Act as it does not currently make express provision in relation to the extraction of groundwater.

Further information


VGSO regularly advises in planning, water and related areas including development approvals, planning scheme amendments, drainage and sewerage projects and land management. For a discussion of the services VGSO can provide in this area, please contact Annette Jones, Principal Solicitor or Natasha Maugueret, Managing Principal Solicitor.

Annette Jones
Principal Solicitor
03 8684 0431

Natasha Maugueret
Managing Principal Solicitor
03 8684 0223

Friday, 22 December 2017

Progress on National water reform and future reform priorities

VSGO has a dedicated Land, Planning and Environment Practice Group.  Recently the Group heard Jane Doolan of the Productivity Commission speak about the Commission's inquiry into National Water Reform.

If you haven't had the chance to look at the draft report, we've summarised the key points in this blog.

National Water Reform 


Earlier this year the Productivity Commission launched a major review of Australian water reform and on 15 September 2017 the Commission released its draft inquiry report into National Water Reform. The purposes of the national inquiry report canvass an assessment on Australia's progress on national water reform such as how past water policy decisions have been made and how effective those decisions have been. In particular the report highlights Australia's water reform achievements and progress over the last 20 to 30 years. The inquiry has also developed draft future reform priorities in water resource management and rural and urban water services. The aim is to ensure the water sector's effectiveness and efficiency through 'consistent and coordinated regulatory and management arrangements that are aligned with the National Water Initiative' (NWI). An aim of the report is to ensure that future policies will reflect significant challenges facing the water sector such as population growth, climate change and community expectations and dependence on water environments. 

Australian Water Reform 


The Commission report identifies Australia's water sector as an international world leader in water management. It goes on to highlight the importance of a coordinated and thoughtful approach to water management, particularly given Australia's arid environment and reliance on our water economy. 

Australia's national approach to water reform began in 1994 through the COAG water reform framework and has continued through subsequent initiatives such as the introduction of the Water Act 2007 (Cth) and the Murray-Darling Basin Plan in November 2012; however the cornerstone of Australia's water reform efforts has been the 2004 NWI. 

Progress and achievements 


The report identifies that National water reforms have significantly improved Australia's approach to water management. The report endorses the continued national relevance of the NWI and its principles, emphasising that the NWI's objectives and outcomes have largely been met however notes that progress has slowed in recent years. Examples of such progress include the development of key foundations of water management such as the:
  • creation of legislative and policy frameworks which provide for clear and long-term water entitlements for consumptive uses
  • establishment of water planning arrangements for the majority of areas of intensive water use across Australia
  • establishment of water markets which allow water to be traded to higher value uses 
  • implementation of water resource accounting such as water metering
  • provision of integrated management of water for environmental sustainability purposes in most jurisdictions.
The report also identifies the improvement of urban water and irrigation infrastructure services as a consequence of improved institutional and pricing reforms.

The Commission further identifies that overall water reform has delivered significant benefits to irrigators, other water users and the broader community.

Why is reform required? 


Along with identifying progress made to date the Commission report identifies further work required by the Government such as:
  • actioning unmet NWI objectives and outcomes; 
  • addressing gaps and limitations in existing NWI policy settings highlighted by the Millennium Drought; and 
  • responding to the challenges which have emerged in the 13 years since the NWI was signed. The challenges are posed by population growth, climate change and changing community expectations and need to be addressed in policy frameworks. 
It is these gaps in current water policy that form the rationale for the recommended reform priorities. 


Future reform priorities


The report identified the following reform priorities: 
  • maintaining the key foundations of water management; and 
  • improving and enhancing national policy settings in areas such as entitlement and planning arrangements for extractive industries, and the water requirements of Indigenous people. 
Of importance are recommendations to revise existing policies such as the current arrangements for extractive industries and incorporating alternative water sources. 


Final Report 


The final report was handed to the Australian Government on 19 December 2017. The release of the final report by the Government is the final step in the process. 

Resource



VGSO frequently assists regulators and authorities with advice on policy implementation and legislative developments.  VGSO also assists with intergovernmental agreements, memoranda of understanding, and responses to inquiries.  For a discussion of the services VGSO can provide in this area, please contact Annette Jones, Acting Managing Principal Solicitor, or Natasha Maugueret, Managing Principal Solicitor. 

Managing Principal Solicitor
8684 0223

Acting Managing Principal Solicitor
8684 0431



Thursday, 14 December 2017

Royal Commission into Institutional Responses to Child Sexual Abuse releases final report


The Royal Commission into Institutional Responses to Child Sexual Abuse has today delivered its final report to the Governor-General. The final reports details the Commission's conclusions and recommendations, and cover a broad range of issues relating to both government and institutions.  Some parts of the report have been suppressed because their release would compromise the criminal investigation into the perpetrators involved.

At the final sitting in Sydney yesterday, Justice McClellan spoke of the former Prime Minister Julia Gillard's announcement of the Royal Commission on 12 November 2012, the Attorney-General's agreement to establish the Royal Commission and the issuing of its Letters Patent on 11 January 2013 and the first private sessions held on 3 April 2013.

Since then, the Royal Commission has heard from over 8,000 survivors and received reports of abuse occurring in more than 4,000 institutions across Australia.  Those institutions were observed to display a common theme: a culture in which the best interests of children were not a priority.  Instead, in many cases, the protection of the reputation of the institutions and the abusers were the priorities.

Justice McClellan reflected on the stories of personal trauma and tragedy of the survivors, acknowledging that it was impossible not to share the anger of victims in the face of what is for many, a trauma they can never escape.  He spoke of the Commissioners having witnessed the resilience of survivors and their steps towards recovery.  He acknowledged that the work of the Commission has been stressful and confronting.  He stated that the survivors have had a profound effect on the Commissioners and that they deserve the thanks of all Australians.

Survivors have contributed to a large volume of work, Message to Australia, to ensure that survivors' stories are never forgotten.  The National Library of Australia and the Library of each State and Territory will be the custodians of this book.

The Commissioners thanked the governments and all of the institutions and individuals who participated in their various consultation processes, including many roundtables, which assisted the Royal Commission in developing its recommendations.  Justice McClellan noted that many institutions and government agencies accepted that they had failed and engaged constructively with the Royal Commission in discussions about how they should change.

The Royal Commission has already provided three policy reports to government: Working with Children Checks, Civil Litigation and Redress, and Criminal Justice.


Link to final sitting address and its transcript.

Amie Herdman
Principal Solicitor

Peter Psarakis 
Solicitor


Wednesday, 13 December 2017

Heritage Update: Increased protection and reduced regulation


On the 1 November 2017, the Heritage Act 2017 (the Act) came into operation.  The new Act replaced the Heritage Act 1995, with alterations designed to increase the level of protection provided for places and objects of cultural heritage significance, while reducing regulatory processes.

Some of the most significant changes are described below.

Improved process for heritage registration


The Act has introduced changes to the heritage registration process, including:

  • The Executive Director, Heritage Victoria may now refuse a nomination that has 'no reasonable prospect of inclusion in the Heritage Register' (s 29(1)).  However, such a refusal may be reviewed by the nominator (s 30).   
  • There are further procedural variations, including a new 90 day time limit for Heritage Council hearing determinations (s 49(2)). 

Simplified process for permits


The Act has introduced changes to the process for obtaining permits, including:

  • There is a greater role for local heritage issues, by requiring consideration of local government submissions in determining applications (s 101(2)(c)) and in review (s 108(5)).  
  • The Executive Director is no longer required to consider 'undue financial hardship' of refusal, however the requirement to consider reasonable and economic use of the place remains (s 101(2)(b)).    
  • The Heritage Council has broader powers on review, and is now able to set aside a determination and make a substituted determination (108(7)(c)). 
  • There is a streamlined process for subdivision, with an exemption for works which comply with a permit of subdivision under the Planning and Environment Act 1987, where the Executive Director was a referral authority (s 91).

Strengthened enforcement and compliance


The Act has also introduced stronger enforcement and compliance provisions, including:

  • There has been a significant increase in penalties, including for works 'knowingly and recklessly' undertaken without a permit (s 87), as well as for negligently doing so (s 88) and a strict liability offence (s 89), which carries lesser penalties. 
  • The Executive Director has broader tools to protect heritage in addition to repair orders (s 155), by issuing rectification orders (s 160) and stop orders (s 165). 

Other changes in the Act include changes to the composition and operation of the Heritage Council and to protection of archaeological heritage.  Overall, the changes provide a stronger and clearer framework for protecting Victoria's heritage.

Where can I go for more information?


For more information about the changes in the Act and the review process that lead to these changes, please click here to be directed to the Department of Environment, Land, Water and Planning website.

If you would like advice about the changes and their implications for your practice, please contact:

Natasha Maugueret
Managing Principal Solicitor
8684 0402

Annette Jones
Acting Managing Principal Solicitor
8684 0431

Mark Egan
Principal Solicitor
8684 0489

Wednesday, 15 November 2017

Individualised justice and consistency: recent changes in Victorian sentencing law

Last month, the High Court handed down judgment in Director of Public Prosecutions v Dalgliesh (a pseudonym), a decision which alters the sentencing landscape in Victoria. Not long before that, amendments to the Sentencing Act were passed which are set to introduce 'standard sentences' for certain indictable offences. With all these changes on the way, we've taken the opportunity to prepare a summary of what you need to know when it comes to sentencing (adult) offenders in Victoria.

Sentencing in Victoria, a refresher


In Victoria, sentencing is governed by two sources: legislation and the common law. Offences and their maximum (and sometimes minimum) penalties are usually found in legislation, including the Crimes Act 1958, the Summary Offences Act 1966, the Drugs, Poisons and Controlled Substances Act 1981 and the Road Safety Act 1986.

Operating within the boundaries of these legislative provisions, decision-makers have discretion as to the appropriate penalty. In reaching a decision, they are guided by sentencing purposes, principles and factors, which are found in the common law and the Sentencing Act 1991. For those wanting to do background reading, there are many great resources on how sentencing works, including the Sentencing Council's Quick Guide to Sentencing and the Judicial College of Victoria's Sentencing Manual.

Of particular note for the recent changes are the sentencing factors outlined in s 5(2) of the Sentencing Act. Under this section, decision-makers are required to have regard to a range of factors including the maximum penalty for the offence; current sentencing practices for the offence type (the sentences that have been given for similar cases); the nature and gravity of the offence; and the impact of the offence on any victim.


The decision in Dalgliesh


The issue before the High Court in Dalgliesh was essentially about the weight that should be accorded to current sentencing practices.  Our system values individual justice. The High Court affirmed this much in Dalgliesh, observing that 'the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.' However, it is also the case, as Gleeson CJ said in Wong v The Queen (and as the High Court reiterated in Dalgliesh), that 'the administration of criminal justice works as a system … It should be systemically fair, and that involves, amongst other things, reasonable consistency.' The consistency being referred to by the Court is the application of the relevant legal principles, rather than the numerical outcome.

In this case, Mr Dalgliesh had been convicted and sentenced for a number of serious offences in the County Court. The DPP appealed the sentence on two grounds: that the sentence imposed on the incest charge was manifestly inadequate and the orders for cumulation resulted in a total effective sentence that was manifestly inadequate.

The Court of Appeal clearly expressed a view that current sentencing practices for the offences in question were inadequate, concluding that the range is so low it 'reveals error in principle' and is not proportionate to the objective gravity of the offending. However, the Court of Appeal dismissed the appeal, holding that the sentences were within the range indicated by current sentencing practices.

The High Court rejected this approach, ruling that the Court of Appeal had erred by treating the range established by current sentencing practices as determinative or decisive of the appeal before it. The High Court unanimously found that there was no statutory basis for this interpretation. It reiterated that the consistency sought is that of approach, rather than outcome and that the Sentencing Act 'does not require adherence to a range of sentences that is demonstrably contrary to principle.'

In doing so, the Court also overruled the decision in Ashdown, which emphasised that an offender who pleads guilty to an offence does so in the expectation that he or she is to be sentenced in line with current sentencing practices. The High Court emphatically rejected this approach, ruling that 'the only expectation an offender can have at sentence is of the imposition of a justice sentence according to law.'

More change to come … amendments to the Sentencing Act


The other change on its way for sentencing in Victoria is in the form of legislation. Parliament recently passed the Sentencing Amendment (Standard Sentences) Bill 2017, which will come into effect in April 2018, unless proclaimed earlier. The Bill introduces standard sentences for certain indictable offences. The standard sentence will be an additional factor for courts to take into account, in the form of a legislative guidepost. The Bill also makes some changes to the operation of guideline judgments. 


Key takeaways



  • The weight to be accorded to current sentencing practices in Victorian sentencing law has changed. The High Court has made it clear that current sentencing practices are one factor to be considered. They do not play a decisive or determinative role. 
  • The introduction of standard sentences will soon provide another factor to be taken into account by the courts when sentencing offenders for certain indictable offences. These amendments will come into effect in April 2018, unless proclaimed earlier. 


VGSO provides assistance to government on the application of sentencing principles and statutory interpretation.  For more information and assistance please contact our senior lawyers below.

This blog was prepared by Katharine Brown, Solicitor.

Paula Cumbo 
9032 3043

Tien Tran
8684 0414

Tuesday, 17 October 2017

Victorian Government releases its first cyber security strategy

Gavin Jennings the Special Minister of State announced the Victorian Government Cyber Security Strategy on 25 August 2017.  The Victorian Government Solicitor's Office is proud to host a panel discussion on Monday 23 October 2017 regarding Cyber Security and the whole of Victorian Government approach to improve capability and resilience. The event is free and all members of the Victorian Public Service are welcome to attend. You can register for the event here.

The Strategy is to bring a whole of government approach to cyber security to help Victorian Government digital infrastructure better respond to the evolving cyber security environment.  The strategy notes that the security environment is becoming significantly more sophisticated, and as such a more sophisticated approach to cyber security is warranted. This is addressed in 23 action points in 5 categories of action.

Previously, cyber security has been managed on an agency by agency basis, with guidance from sources such as the Victorian Protective Data Security Framework.  The strategy aims to leverage all Government learning in the area, in recognition that not all agencies have the same resources to deal with the cyber threat.

The key element announced is the creation of the Chief Information Security Officer within the Department of Premier and Cabinet. Mr John O'Driscoll has been appointed to the role and will be responsible for overseeing Government's response to the cyber threat, developing best practice, providing assurance, reporting internally on the Government's cyber security status and coordinating cross Government action. You can read the media release announcing the appointment here.

The strategy also aims to enhance Government capability in terms of strategic planning, reporting and technical proficiency, both through partnering agreements and a dedicated push for skilled workers.

We anticipate rapid change in this space, with 19 of the 23 action points due to be delivered by April 2018.

If you'd like to discuss managing the legal risks relating to a cyber security breach, please contact us:

Isabel Parsons
Managing Principal Solicitor
9947 1405

Tina Lee
Principal Solicitor
9947 1426

James Stephens
Principal Solicitor
9947 1422

Stuart Taylor
Solicitor
9947 1415

Thursday, 21 September 2017

Director of Public Prosecutions publishes new policy

In August 2017, the Director of Public Prosecutions published the Policy of the Director of Public Prosecutions for Victoria (Policy).  The Policy follows a comprehensive review of the DPP's policy material and replaces all former DPP policies.

The Policy is required reading for anyone involved in prosecution or employed in an agency with prosecutorial or regulatory functions.  You can and should use the Policy to guide your prosecutorial decisions in line with modern prosecutorial principles.  We've produced a quick summary of what the policy covers to help you easily identify the areas you might find most relevant to your day to day functions.


What does the Policy cover?

The Policy supplements the Public Prosecutions Act 1994 and relevant case law to promote  transparency, accountability and consistency in prosecutorial decision-making.  It aims to reflect, accurately and succinctly, the needs of modern-day prosecutors.  Importantly, the overriding criteria in making the decision to prosecute remain that there is a reasonable prospect of a conviction and the prosecution is in the public interest.

In summary, the Policy covers:

  • prosecutorial discretion 
  • the role of the prosecutor
  • victims and persons adversely affected by crime
  • resolution of criminal proceedings by agreement between the prosecution and the accused
  • the appropriate jurisdiction for indictable offences triable summarily
  • undertakings and indemnities
  • juries
  • family violence
  • appeals, references, retrials and reinvestigations
  • takeover of prosecutions by the DPP
  • proceeds of crime
  • giving reasons for prosecutorial decisions
  • advice from the Office of Public Prosecutions to external agencies
  • detention orders under the Serious Sex Offenders (Detention and Supervisions) Act 2009.


The DPP has also said that he will not print the Policy for distribution, but will treat it as a living, electronic document, to be continually reviewed and accessed as needed.  This approach ensures that the Policy is consistently relevant and up-to-date.  You can follow the DPP on Twitter to receive notification of updates to the policy.

What doesn't the Policy cover?

Inevitably, some matters covered by former policies are not covered in the Policy.  After all, the single, 50-page Policy replaces over 50 former policies, issued over several years and totalling almost 500 pages.  In the Policy Foreword, the DPP notes that this series of former policies did not bear a sufficient connection to the practice of a modern-day prosecutor.  Generally speaking, the Victorian public prosecutions service has sought to excise any policy material that was out of date, was related to internal DPP procedures or was seen as an unnecessary recitation of the law.

To give just a few examples, the new Policy does not reproduce the former policies on media communication, the investigation of jury offences or protocols for the prosecution of joint State-Commonwealth matters.  Several policies relating to specific applications or pieces of legislation have also been retired, such as those on notifications under s 49(1) of the Coroners Act 2008, the granting of consent to prosecute under the Racial and Religious Tolerance Act 2001 and the granting of consent to extend time to prosecute under the Funerals Act 2006.

What else does the Policy mean for me?

Agencies with prosecutorial or regulatory functions may also wish to review their internal policies and manuals to ensure they are up-to-date.  VGSO have a team of regulatory and enforcement specialists who can assist with investigations, prosecutions, as well as drafting of relevant policies, manuals and staff training.

Where can I go for more information?

If you would like further advice about the Policy or its implications for your practice, please contact:

Alicia Robson
8684 0494
Acting Managing Principal Solicitor

Michael Rancie
8684 0266
Solicitor