Sweet child o’ mine

Birth registration is important. It is the first step in the process of formal recognition of an individual by the state. But for some in the community, the process of registering a birth is difficult (and not just because filling out a three page form is tough for anyone on two hours sleep per night).

Whilst getting bubs to sleep is beyond the State Government’s control, it recently asked the Victorian Law Reform Commission to look into the process for birth registration.

The Commission heard from different sections of the community about their experiences of obtaining a birth certificate, including some adults whose birth was never registered. It examined whether the current process makes getting a certificate difficult, particularly for already marginalised groups.

The Commission handed down its report in November.

The report identified reasons for failing to register a birth or apply for a certificate, including:

• a lack of awareness of the requirement to register;
• a poor understanding of the importance of registration;
• the cost of obtaining a birth certificate; and
• other issues such as mental illness or family violence concerns.

In short, disadvantaged background is a common theme for late registration or non-registration of a birth.

The Commission made 26 recommendations, 23 of which relate to changes in procedure at the Births Deaths and Marriages Registry.

The recommendations include:

• Changing the way in which the particulars of birth notification are collected and how, and by whom, a birth can be registered.
• Changing procedure where family violence may be a barrier to the registration of a birth.
• Better facilitation of the birth registration process and access to birth certificates for cross-border Indigenous communities.
• Streamlining birth registration with applications for services by the Commonwealth.
• Broadening who may certify identity documents as well as the type of proof of identity documents the Registrar will accept to support an application.
• Clarifying the fee exemption policy.

Whilst the recommendations relate to the birth registration and birth certificate application process, the report is useful reading for any government officer designing a policy that balances the need for consistency (or certainty of public records) with the flexibility to ensure that a program can actually work across diverse groups in society.

Flexibility is a fundamental aspect of good government decision-making. Where there is discretion in a decision-making process, there should be a policy to ensure decisions are made consistently and fairly. But that policy must be sufficiently flexible to cover a range of circumstances. This report by the VLRC provides a good concrete example of how an agency can tailor its policies and guidelines to achieve flexibility without compromising on certainty or consistency in program implementation.

For more information about this report, designing flexible decision-making policies or working Gunners references into your professional writing, please contact:

Elsie Loh
Principal Solicitor
t 8684 0144 
elsie.loh@vgso.vic.gov.au

Managing serial complainants

Managing serial complainants is a challenge for all public administrators. Dealing with these complainants is resource and time intensive and can pose difficulties if a particular complainant is aggressive or abusive towards staff.

Administrators need to take care in the strategies they adopt to deal with complainants, especially if complainants' behaviour is symptomatic of any underlying disability.

In the recent VCAT decision of Slattery v Manningham City Council, a complainant successfully claimed that the Manningham City Council (Council) had directly discriminated against him on the ground of disability in banning him from all Council buildings, breaching s 44 of the Equal Opportunity Act 2010 (EO Act).

The case is significant because it is one of the first decisions to consider how the test for direct discrimination operates under the EO Act.

Since 1998, Mr Slattery had made thousands of written and verbal complaints to the Council in relation to matters Mr Slattery had identified as 'safety issues'. Many of Mr Slattery's complaints were derogatory or offensive towards Councillors or Council staff. Over a fifteen year period, there were a handful of physical altercations between Mr Slattery and Council staff members. Council estimated that it spent approximately $10,000 per year dealing with Mr Slattery's complaints. In April 2009, the Council imposed the ban on Mr Slattery.

Mr Slattery had a number of diagnosed disabilities, including post-traumatic stress disorder (PTSD), bipolar disorder and a brain injury following a stroke, however has not received treatment for any of these conditions for a number of years. Council had, at one stage, engaged the assistance of a psychiatrist, to formulate strategies for dealing with Mr Slattery.

Senior Member Nihill first considered what constituted unfavourable treatment within the definition of direct discrimination, and whether it was necessary to carry out a comparative analysis to determine if a person has been treated unfavourably because of a protected attribute (in this case, a disability).

SM Nihill's starting point was the Court of Appeal's decision in Aitken v State of Victoria, where the Court of Appeal accepted that the question as to whether a comparative analysis is required under the EO Act remains an unresolved question of law in Victoria.

Following a discussion of helpful case law, interpretation legislation and extrinsic material, SM Nihill concluded that the definition of direct discrimination in the EO Act does not require a comparator (a conclusion also reached in the recent VCAT decision on Victoria Police's beard policy). Rather, what is required is an analysis of the impact of treatment on the person complaining of it. This analysis may be informed by the treatment afforded to others, however, such a consideration is not required under section 8 of the EO Act.

SM Nihill formed the view that Council's maintenance of the ban, preventing Mr Slattery from accessing services in any building owned, occupied or managed by Council, particularly after Mr Slattery requested that the ban be lifted in November 2012, constituted unfavourable treatment.

SM Nihill next went on to consider whether the unfavourable treatment of Mr Slattery was because he had a protected attribute.

The Tribunal heard psychiatric evidence from Dr Farnbach, who had been Mr Slattery's treating psychiatrist. Dr Farnbach gave evidence that as a result of his PTSD and impulse control disorder, Mr Slattery experienced a strong and urgent compulsion to make reports to Council, particularly about public safety and about 'people doing the right thing'. After reports were made, Mr Slattery would experience relief.

SM Nihill concluded, on the basis of Dr Farnbach's evidence that Mr Slattery's tendency to complain compulsively is a symptom of his disabilities, and therefore fell within the definition of disability contained in s 4 of the EO Act.

Given, that Mr Slattery's behaviour in compulsively complaining to the Council, was a result of his disability, and that one of the reasons that Council had imposed the ban was to 'manage' Mr Slattery, SM Nihill concluded that Mr Slattery's disability was a substantial reason for the Council's unfavourable treatment of Mr Slattery, and therefore that Mr Slattery had been the subject of direct discrimination by the Council.

The Council was unsuccessful in arguing that an exception under ss 75 or 86 of the EO Act applied (that is, that it was necessary to impose the ban on Mr Slattery to protect the health and safety of Councillors, Council staff and the wider public).

The question of remedies was left to be discussed by the parties in a compulsory conference.

If you are in the Victorian Government and would like advice on the EO Act or this case, please contact:

Penina Berkovic
Principal Solicitor
t 8684 0226
penina.berkovic@vgso.vic.gov.au

Bruce Chen
Senior Solicitor
t 8684 0425
bruce.chen@vgso.vic.gov.au

High Court tells lawyers to play fair

Play fair and double-check what you send to the other side are the two lessons for litigators coming out of the recent High Court decision of ERA Group v Armstrong.

In the course of discovery in a commercial dispute involving some 60,000 documents, the ERA Group’s solicitors mistakenly provided Armstrong’s solicitors with documents that were confidential and subject to client legal privilege. 

Oops. 

ERA Group’s solicitors then sought return of the material and an undertaking from Armstrong’s solicitors not to use the privileged material in the litigation.  But Armstrong’s solicitors refused to return the documents, arguing that the privilege attaching to the documents had been waived.

The trial judge found for the ERA Group and ordered return of the documents.  But the Court of Appeal sided with Armstrong.  The High Court overturned that decision with a very clear message about lawyers’ professional and ethical obligations to support the proper administration of justice. 

In doing so, it noted that mistakes are more likely to occur in discovery in ‘heavy litigation conducted by large teams of lawyers of varying experience and the indiscriminate use of photocopying’ so the good faith of the parties is paramount in such matters.

The Court noted that the new Australian Solicitor’s Conduct Rules (not yet incorporated in Victoria) require a solicitor to return material which is known or reasonably suspected to be confidential, where the solicitor is aware that its disclosure was inadvertent.

The Court suggested "such a rule should not be necessary," as "in the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications…  It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.”

It is a fundamental principle of legal professional practice that, as lawyers, our duty to the court trumps all of our other duties.  Fortunately, such behavior is rare in government lawyers as they must also follow the Model Litigant Guidelines.  These require government litigants to (amongst other things):

• act fairly in litigation
• not cause unnecessary delay
• keep litigation costs to a minimum.

But this reminder by the High Court to think twice about adopting a win-at-all-costs approach is still a useful read for government lawyers, even just for the reminder to do one last proofread before hitting ‘send’…

If you are in the Victorian Government and would like advice on the ethical obligations applicable to government litigants, please contact:

Andrew Suddick
General Counsel (Litigation)
t 8684 0458
andrew.suddick@vgso.vic.gov.au

10 tips for drafting top witness statements

1. Interview witnesses alone (or with an interpreter only, if necessary).  Otherwise, it is open to suggestion later that there was collusion between witnesses.  It also makes it easier to assess the impression a witness will ultimately give when in court. 
2. Use the first person and the witness’s own words.  The witness may be cross-examined on the statement and needs to be able to understand their own evidence.  Draft the statement in chronological order.  It should tell a story. 
3. Use the past tense – the witness is describing the state of affairs at the time of the relevant incident. 
4. Use short sentences and short paragraphs.  Each paragraph should be numbered and should cover a single point.
5. Where a witness makes a statement in their professional capacity, the statement may state their business address rather than residential address.
6. You generally need to avoid hearsay evidence (that is, evidence based on what someone has told the witness and not of direct knowledge).  You can however include hearsay evidence in witness statements for interlocutory hearings, provided the witness identifies the source of the evidence given.  The best way to avoid including hearsay evidence is to draft the statement so the witness’s evidence is confined to what they actually saw, heard, or smelt.
7. Statements such as ‘I understood’ or ‘I thought’ or ‘I intended’ should be avoided unless state of mind is an issue.  If state of mind is an issue then set out the words of a conversation or describe what the witness saw from which the court can conclude that the witness had the relevant state of mind.
8. Similarly, avoid conclusions in a witness statement.  
• Just describe what the witness did.  The lawyer can ask the court to make the necessary conclusion during argument.  
• For example, rather than ‘I would not have said something like that because it is not written in my notes’, try 'I always take my notebook with me when I meet with a client.  My practice during any meeting with a client is to write in my notebook any recommendations that I make to a client about the next steps they should take'.
9. Where possible, conversations should be expressed in the actual words used by the relevant people.  
• For example: On 24 December 2012, I met with Mr Claus at his business address, and we had a conversation to the following effect: ‘Rudolph would be available to work this week’. 
• Otherwise, use words describing the nature of the recollection of the witness, for example: I met with Mr Claus on 24 December 2012 at his business address.  I do not recall the actual words used.  I asked him a number of questions.  One thing I asked him about was the staff numbers he expected over the holiday period.  In his answer, he referred to Rudolph, Dasher and Dancer as employees who were confirmed to work the following week. 
10. A witness statement needs to be signed by the person who made the statement, but does not need to be witnessed by someone else.  Australian legal practitioners, plus the following categories of Victorian public servants, are able to witness affidavits and statutory declarations:
• Non-executive employee grades 2 to 6 (inclusive) and Senior Technical Specialist
• Solicitor, Senior Solicitor, Principal Solicitor and Principal Solicitor (Team Leader)
• Executive (Level 1, Level 2 and Level 3)
• Principal Scientist or Principal Scientist Level PS-1 and PS-2
• Science A to D (inclusive)
• Forensic Officer Level 2 to Level 7 (inclusive)
• Child Protection Practitioner CPP 2 to CPP 6 (inclusive)
• Children Youth and Families CYF 2 to CYF 6 (inclusive)
• Housing Services Officer HSO
• Senior Medical Adviser SMA
• Disability Development and Support Officer DDSO4 to DDSO9 (inclusive)
• Custodial Officers COG4 to COG6 (inclusive).

If you are in the Victorian Government and want more information about drafting witness statements or litigation strategy, please contact:

Martin Pike
Principal Solicitor
t  8684 0413
martin.pike@vgso.vic.gov.au

8 things you need to know about the Open Courts Bill

The Open Courts Bill kicks off in December 2013, popping all the suppression order powers of the Victorian courts and VCAT into one convenient piece of legislation.

In case you don’t know, a suppression order is a court order restricting publication or other disclosure of information in connection with a court proceeding.  A closed court order is an order restricting who can be in the courtroom during a proceeding.

Whilst it is primarily a consolidation of the current law, there are some important differences for Victorian litigators to keep in mind:

1. The Bill creates express presumptions in favour of disclosure of information and holding hearings in open court.  A court or tribunal must have regard to these presumptions when considering whether to make a suppression order or a closed-court order.
2. The Bill expressly provides that that suppression and closed court orders can only be made in specified limited circumstances where there is a strong and valid reason for doing so.
3. Where a suppression order is made, the information that is restricted from disclosure must be limited to that which is necessary to achieve the purpose for which the order is made.  The information to which the order relates must also be clearly stated in the order.  Also, the order must be limited to achieving the purpose for which it is made.
4. Suppression orders must be limited in their duration.  A court or tribunal may only make an order for a fixed or ascertainable period, or until the occurrence of a specified future event.  If it is possible that the future event will not occur, the order also must contain an expiry period of less than five years.
5. Before making a suppression order, a court or tribunal must be satisfied on the basis of sufficient credible information that the applicant has satisfied the grounds for making a suppression order.  
6. The Bill expressly protects the right for news organisations to be heard on and contest an application for a suppression order.  News organisations are also given express statutory rights to seek review of orders that are made.
7. The Supreme Court does retain its powers to make suppression and closed-court orders in the exercise of its inherent jurisdiction, but subject to:
• The presumptions in favour of disclosure and public hearings; and 
• The procedural requirements regarding duration, limited scope, evidentiary basis and review.
8. The Bill proposes grounds on which a suppression order may be made.  These include:
• Preventing prejudice to the proper administration of justice
• Preventing prejudice to national or international security
• Protecting the safety of any person
• Avoiding undue distress or embarrassment to a party to or witness in criminal proceedings involving a sexual offence or family violence offence
• Avoiding undue distress or embarrassment to a child who is a witness in any criminal proceeding.

This consolidates the existing grounds, except for the last two, which are worthy additions.

If you are in the Victorian Government and want more information about suppression orders or the Open Courts Bill, please contact:

Dianna Gleeson
Acting Managing Principal Solicitor
t 8684  0404
dianna.gleeson@vgso.vic.gov.au

Giving good reasons: a how-to guide by the High Court

The High Court’s recent decision of Wingfoot Australia Partners Pty Ltd v Eyup Kocak was eagerly awaited by government lawyers and decision-makers. Although primarily a decision about the interaction between the statutory and common law personal injury regimes, it provides helpful guidance on the standard of written reasons required by different government decision-makers.

Facts and procedural background

The case involved the assessment of the injuries of a worker by a medical panel appointed under the Accident Compensation Act 1985 (Vic) (AC Act).  The panel was referred questions about the worker’s injuries.  It then provided a report of its ‘written opinion and a written statement of reasons for that opinion’, as required by s 68(3) of the AC Act.

The worker claimed the reasons of the panel were inadequate.

That claim was rejected by the trial judge but accepted by the Court of Appeal.  The Court of Appeal agreed the reasons were inadequate and held that the opinion should be quashed by the remedy of certiorari.

The employer appealed to the High Court, arguing that the reasons given by the panel were adequate in the circumstances and that even if the reasons were inadequate, this should not lead to the opinion being quashed.

The High Court agreed.

Certiorari and its availability

By way of background, the writ of certiorari is a judicial review remedy that sets aside an unlawfully made decision or a decision tainted by an ‘error on the face of the record’.  At common law, the ‘record’ of a decision does not include its reasons unless they are incorporated into the order itself. However, in Victoria, the definition of the ‘record’ has been expanded by s 10 of the Administrative Law Act 1978 (Vic) (AL Act) to include any statement of reasons.

This means the certiorari remedy is available to quash a decision made by a Victorian government decision-maker with inadequate written reasons, so long as the decision continues to have legal effect.

Did the opinion of the medical panel continue to have legal effect?  This was the issue of most interest to personal injury lawyers awaiting the decision, as it turned on the use of panel opinions from proceedings under the AC Act in other types of personal injury compensation proceedings.

In this case, the Magistrates' Court had procured the panel opinion for its statutory compensation proceedings.

The question was whether s 68(4) of the AC Act compelled the County Court, in determining its common law compensation proceedings, to adopt the opinion, or whether the opinion had ceased to have legal effect once the Magistrates' Court proceedings were complete.

The Court of Appeal held that the opinion did continue to have legal effect.  The High Court, however, disagreed, holding s 68(4) only compelled a panel opinion to be adopted for any further questions arising under the AC Act. This meant the s 68 medical panel opinion had no continuing legal effect to quash, and certiorari was not available.

Thus, the orders made by the Court of Appeal were set aside, and the order of the trial judge (dismissing the worker's application) restored.

Standard of reasons

Despite having allowed the appeal on the above basis, the High Court went on to consider the more interesting issue of standard of reasons.

It started by noting that there is no common law obligation to provide reasons for a decision but, in this case, the panel was obliged by the AC Act to provide reasons for its opinion.

The Court held that where there is such an obligation and the statute is silent on the requisite standard, the standard could be determined by a 'process of implication' from the statute.  It identified two considerations to help determine this standard:

• the nature of the function performed by the decision maker in making their decision; and
• the objective, within the scheme of the relevant legislation, of the requirement for written reasons to be provided.

The Court noted that the nature of the function of a medical panel is to form and give its own opinion on the medical question referred for its opinion.  In doing so, it will consider the material put forward by the various parties.  However, its function is not to make up its mind by reference to competing arguments, but to form and give its own opinion on the medical question referred to it by applying its own expertise.

The objective of the requirement for written reasons is to allow people affected by the opinion to automatically be provided with the statement of reasons, rather than having to request it under the AL Act (as used to be done using the power under s 8).  This enables such a person to ask the Supreme Court to remove the legal effect of the opinion if the panel made an error of law in forming the opinion, as the error will appear on the face of the decision.

Combining these considerations, the High Court determined that the medical panel's statement of reasons must explain 'the actual path of reasoning' by which the panel arrived at their opinion, in sufficient detail to enable a court to see whether the opinion involved any error of law.  The Court held that the panel’s opinion in this case met this standard.

This can be contrasted with the higher standard that the Court of Appeal required of a medical panel, which was the judicial standard of reasons.  This would require the panel to provide an explanation, were it to form an opinion that did not accord with an expert opinion put to it.

Consequences for Victorian government decision-makers

This case did not provide the opportunity to reconsider the position that there is no common law duty to provide reasons, because of the express requirement in s 68 of the AC Act.

However, it does provide government decision-makers with useful guidance on what standard of reasons are required when an obligation does arise, be it through a request under the AL Act or because of an explicit requirement, as here, to provide reasons with the decision.

The Court reiterated that the standard of reasons required for a particular decision turns on the particular statutory context.  Decision makers must consider the specific legislation (particularly, the nature of the particular decision and the objective behind the requirement to give reasons) in determining the standard required for the written reasons they provide.

If you are in the Victorian Government and seek further information about this case, please contact:

Elsie Loh 
Principal Solicitor
t 8684 0419
elsie.loh@vgso.vic.gov.au

Water law changes in the pipeline

The Water Act 1989 (Vic), one of the longest Acts in the statute book, is under review.  Changes are not expected to significantly impact water users, however, it will change the way the Government manages water so it is important for government officers who work in areas affected by water law or the emergency services (as the review affects flood mitigation infrastructure) to keep abreast of the changes.

The Act provides the framework for allocating surface water and groundwater across Victoria.  It details the Crown’s entitlements to water and private entitlements to water from all rivers, streams and groundwater systems in Victoria, providing Water Authorities with bulk entitlements to water for urban supply or irrigation.  Authorities allocate a volumetric water entitlement to licenced individuals or companies for commercial or irrigation purposes.  It also gives individuals the right to take and use water for domestic and stock purposes.

The Act was developed over 20 years ago when the pressures on the State's water resources were very different.  Its predecessor was enacted in the 1800s to allow the development of irrigation in northern Victoria.  Environmental considerations are a much more recent addition.  In particular, in 2005, the Act pioneered the use of the environmental water reserve, which was designed ‘to set aside a share of water in rivers and aquifers across the State for the environment’. This was the first time that rivers and aquifers gained a legal right to a share of their own water.

The purpose of the review of the Act is to streamline the legislative framework for water management and use.  This includes considering whether changes are needed to implement the Commonwealth's Murray-Darling Basin Plan, released in November 2012.  The review will also implement new water policies adopted by the Government, including the Living Melbourne Living Victoria urban water plan and the land use change policy developed through the Western and Gippsland regional sustainable water strategies.

Currently, we are waiting with baited breath for the release of a discussion paper outlining proposed reforms to the Act and an exposure draft.  An expert panel established by the Minister is preparing this.  A six-week consultation process will occur following the release of the paper.

The discussion paper will consider the following issues:

• Whether the way water resources are managed and allocated can be simplified, without having an adverse impact on entitlements.
• Whether public dams that could present a hazard if they fail should be licensed in the same way as private dams.
• Whether any further refinements to the water corporation governance reforms of 2012 are required.
• Whether the current water service delivery functions and powers of water authorities can provide sustainable and integrated water services.  This includes ensuring the rights to alternative water sources are clear enough to enable greater use of recycled water and stormwater.
• Whether the functions and powers that aim to protect and improve river health, floodplain management and regional drainage are sufficient.  This includes making legislative changes needed to implement the government's response to the Environment and Natural Resources Committee inquiry into floodplain mitigation infrastructure in Victoria, some of which are discussed in the recently released Government’s Response to this inquiry.

If you are in the Victorian Government and require advice about how the water law reforms could affect your area, please contact:

Eliza Bergin
Principal Solicitor
t 8684 0267
eliza.bergin@vgso.vic.gov.au

Occupy Melbourne – lessons for decision makers

27 December 2013 update: the VGSO newsletter on this case is now online. Happy holiday reading!

Remember the 'Occupy Melbourne' protests?  The Federal Court recently handed down its decision in the 'Occupy Melbourne Case' – Muldoon v Melbourne City Council.  We note that the protestors have just lodged an appeal to the Full Federal Court, so watch this space...

In Muldoon, members of the 'Occupy Melbourne' protest failed in their constitutional challenge to the response by public authorities to their occupation of public gardens.  The decision is a win for equitable use of public space and reasonable regulation.  It also guides administrative decision makers seeking to protect their decisions from constitutional challenges based on free speech.

Facts

Muldoon arose from the 2011 occupation of public gardens in the City of Melbourne by a group of protestors called 'Occupy Melbourne' and the response by public authorities to those actions.

Two protestors challenged the exercise of enforcement powers by officers of the Melbourne City Council. The exercise of these enforcement powers prevented Occupy Melbourne from continuing its protest through constant occupation of public space.

The relevant enforcement powers were located in Melbourne City Council Activities Local Law 2009 and Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations 1994. 

The laws prohibited:

• a person camping, without a permit, in a public place in a tent or any type of temporary or provisional form of accommodation; and
• erecting signage in a public place, without a permit.

The Council issued a number of Notices to Comply to Occupy Melbourne for the removal of tents, temporary accommodation and signage from the gardens, and, with police assistance, removed tents and other accoutrements of the occupation.

Arguments

The Muldoon decision considered the constitutionality of both the enforcement provisions and the specific exercises of powers under those provisions, in light of the constitutional implied freedom of political communication.

The applicants also unsuccessfully argued that the Local Laws and Regulations were incompatible with their rights to freedom of expression or peaceful assembly or freedom of association under the Charter of Human Rights and Responsibilities Act 2006.

Reasons

In Australia, whether a law infringes the implied constitutional freedom of political communication depends on the answers to two questions.

• First, whether the law in its terms, operation or effect, burdens the freedom of communication about government or political matters?
• Secondly, if the law does burden the freedom of communication it will be invalid unless it is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

 

First limb - did the law burden the implied freedom of communication?

The applicants won the first limb, the Court finding that the Local Law and Regulations did burden the implied freedom of political communication.  This was because the tents and banners were symbols of the cause of the Occupy Movement, conveying a message about political matters.

The fact that the Local Laws and Regulations were found to burden the implied freedom is not a surprising result.  When applying the implied freedom courts almost always reach this outcome.  Indeed, this led Heydon J to observe in early 2012 that

[t]his common practice of concession or assumption that the first [implied freedom of communication] limb is met tends to generate an insidious belief that it will always be met.  

Lawmakers and decision-makers should therefore focus on the second stage of the required analysis: what is reasonable regulation?

 

Second limb - was the law reasonably appropriate and adapted to a legitimate end?

Justice North held that the Local Law and Regulations were valid as they were reasonably appropriate and adapted to the legitimate end of providing for the preservation, care, and maintenance of the gardens and for the equitable use of them.  His Honour found:

First, the extent to which the provisions restricted political communication was limited.  They prohibited camping in tents without a permit and bringing certain items into the gardens without a permit.  But the impugned provisions left open a wide range of other forms of political protest in the gardens.

Secondly, the extent of the restriction on political communication was not absolute.  Protesters could apply to the Council for a permit to camp in tents in the gardens or bring specific items into the gardens.  The ability for the Council to grant or refuse such a permit must be exercised in accordance with the purpose of the power, namely, to preserve the gardens and ensure accessibility to them (including taking account of rights of free expression). 

Thirdly, the applicants failed to demonstrate how the Council could have protected the gardens with any less restriction on the freedom of political communication.  In reaching this conclusion, North J rejected the argument that the Local Law and Regulations could be drafted to exclude political communication, as defining this concept was not practical.

Finally, North J rejected the argument that the Local Law enforcement procedure was immunised from judicial scrutiny due to the haste in which enforcement could occur.  His Honour noted that the courts were 'available every day and for 24 hours in each day, including during holiday periods and on public holidays'.

 

The intersection between constitutional law and administrative decision-making

The decision of North J in Muldoon demonstrates how the implied constitutional freedom of political communication affects administrative decision-making.  More specifically, the decision is important for at least three reasons.

First, it shows how non-verbal methods of communication can be protected by the implied freedom.

Secondly, it reinforces that even broad powers are limited by:

• the implied freedom; and
• the requirement that administrative powers be exercised for a proper purpose. (Note: the Charter imposes similar limits on seemingly broad powers).

Thirdly, it explains how administrative decisions can be protected from constitutional challenges based on free speech. Lawmakers and decision-makers need to ensure:

• that administrative decision-makers exercise powers in accordance with the proper purposes for which they were conferred; and
• that evidence exists in each case as to why an administrative power was exercised in a particular manner.

If you are in the Victorian Government and require advice on whether administrative decisions or laws are consistent with the implied freedom of political communication, you can attend our client seminar on Monday, 11 November 2013.  Details of the seminar can be found here. 

Alternatively you may wish to contact:

Sky Mykyta
Managing Principal Solicitor
t 8684 0220
sky.mykyta@vgso.vic.gov.au

Nicholas Tiverios
Solicitor
t 8684 0430
nicholas.tiverios@vgso.vic.gov.au

How to give your prosecutions the best chance of success

Regulators don’t prosecute lightly.  So when they do, it is important to get it right.

This involves more than good investigation.  As the Victorian Auditor-General’s Office has noted in a number of its recent reports, good regulatory outcomes come from agencies having clear and comprehensive systems in place for their enforcement activities. 

VAGO's reports include recommendations such as:

• establishing a compliance framework for determining appropriate enforcement action;
• documenting the procedures and standards required of staff carrying out compliance and enforcement activities; and
• ensuring staff understand the legislation and rules for their regulatory area.

Here are some tips for building your agency’s capacity to conduct prosecution casework and achieve good regulatory outcomes.

Know the law

Investigators and prosecutors should have a good understanding of the regulatory laws that they apply, including relevant acts, regulations and other rules (such as Ministerial orders).  This can be developed through training, information sharing and reference material as much as through experience.

Investigators and prosecutors should be particularly familiar with the criminal offences under their legislation, the 'elements' or 'points of proof' for those offences, and the evidence required before a prosecution can be commenced.   Template investigation plans for these offences help investigators identify the evidence to be gathered and inquiries to make.

Companies and other organisations may operate in your regulatory space. Proving criminal offences against companies can be complex.  Investigators and prosecutors should know how relevant laws apply to companies as well as to individuals.

Develop appropriate investigative techniques and use statutory powers carefully

Successful prosecution outcomes start with good investigations.

Basic investigatory techniques, such as effective communication and interpersonal skills, are important for any investigation.  However, some offences require specialised investigative techniques or resources to gather the required evidence. 

This may include:

• developing information systems or databases to store, manage and access information;
• using appropriate interviewing or questioning techniques (for example, when dealing with children or persons from different social, cultural and linguistic backgrounds); or
• obtaining technical support for gathering evidence (such as a forensic computer analyst or accountant).

Operational training is important to ensure staff can use these techniques and resources.

Investigators sometimes have special powers, for example, to enter buildings, search for items and seize possible evidence.  It is very important to know the limits of these powers, not only because their improper use can affect the admissibility of evidence, but also because they can infringe important civil rights.  Agencies should develop guidelines for the use of these powers, and regularly audit how they are being used.

Prepare well-organised and comprehensive briefs

Investigators ordinarily compile all of the evidentiary material they obtain into a brief.  A well-organised brief allows a prosecutor to easily:

• understand the alleged offending;
• assess the evidence against the allegation;
• identify what further evidence the investigator should attempt to obtain;
• provide appropriate disclosure of the prosecution case to the defence; and
• prosecute the case in court.

Investigators should make sure the brief includes:

• well-prepared witness statements for all witnesses (in coming weeks, we will write in more detail about witness statements, watch this space!)
• a complete list of exhibits (including copies of all relevant evidentiary documents and details of any 'real evidence', such as items seized during a search);
• details of any prior criminal history of alleged offenders; and
• any other documents which may need to be disclosed under the pre-hearing disclosure provisions of the Criminal Procedure Act 2009 (for example, the investigator's notes, relevant documents that will not be relied on in evidence). 

A covering memorandum from the investigator to the prosecutor, explaining the substance of the allegations and any other relevant matters, is always helpful.

Original evidentiary documents and 'real evidence' should not be included with investigation briefs, but should be kept safely.  The investigator may need to demonstrate the 'chain of custody' of particular evidence, and include these details in his/her witness statement.  Agencies should ensure that there are procedures for handling and storing important evidence, particularly seized documents or items.

Agencies should have a standard format for investigation briefs.  Investigators should work with prosecutors to create a useful format, and discuss proposed prosecution briefs at an early stage.

Make good decisions about when to prosecute offences

Having clear guidelines for making decisions about whether or not to prosecute offences is especially important.  It is not in the public interest to prosecute all offences. 

Good guidance as to the range of considerations in making such decisions can be found in the DPP's policy on prosecutorial discretion).

Agencies have a range of regulatory compliance and enforcement tools available, of which criminal prosecutions are only one option.  Most agencies that conduct compliance activities will have an established, risk-based framework for determining the appropriate enforcement action.

Some good resources for establishing a risk-based compliance framework include:

• the Department of Treasury and Finance's 2011 Victorian Guide to Regulation;
• the Department of Premier and Cabinet's 2010 Improving Governance of Regulators: Principles and Guidelines; and
• the Chartered Secretaries of Australia’s 2009 Good Governance Guide: Compliance in the Public Sector.

If you are in the Victorian government and would like advice or assistance with any aspect of your agency’s regulatory compliance and enforcement activities, please contact:

Greg Elms
Managing Principal Solicitor
t 9247 6790
greg.elms@vgso.vic.gov.au

Matt Carrazzo
Senior Solicitor
t 8684 0497
matthew.carrazzo@vgso.vic.gov.au

To whom can Victorian public servants report corruption?

Recent changes to Victoria's integrity framework, including the establishment of several new integrity bodies and a system to monitor and oversee them, has changed the way in which to report allegations of corruption or improper conduct in the Victorian public sector.

Here’s a summary of some of the options available to a public servant or a member of the public who suspects improper conduct.  More information can be found from VGSO's publications, IBAC's website or the website of the body about which a complaint is to be made.

Type of conduct: ‘police personnel misconduct’

Body: the Independent Broad-based Anti-corruption Commission (IBAC)

IBAC started on 10 February 2013. It replaced the Office of Police Integrity and is the sole integrity agency with responsibility for dealing with matters relating to the misconduct of sworn and unsworn police members (described as 'police personnel conduct').

For a sworn officer, this includes:

• conduct that constitutes an offence punishable by imprisonment;
• conduct that is likely to bring the police force or police personnel into disrepute or diminish public confidence in them; and
• disgraceful or improper conduct, whether in their official capacity or otherwise.

The definition of police personnel misconduct is narrower for an unsworn officer.  It does not include conduct which constitutes an offence punishable by imprisonment, or disgraceful or improper conduct.  Unsworn members include those members who assist in the administration of the police (i.e. VPS members employed by Victoria Police), police recruits and Protective Services Officers.

Type of conduct: ‘corrupt’ conduct of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC

IBAC can receive complaints about ‘corrupt conduct’ of ‘public officers’ and ‘public bodies’.

Public officers/bodies include public servants, departments and statutory authorities, local councils, Members of Parliament, public schools and universities, public hospitals, judges and magistrates, except those bodies covered by the Inspectorate, set out below.

‘Corrupt conduct’ of public officers/bodies includes:

• dishonesty;
• breach of public trust;
• misuse of information; and
• conspiracy to do any of the above acts.

The conduct must, if the facts were found proved beyond reasonable doubt at a trial, constitute either:

• a statutory indictable offence; or
• the common law offences of perverting, or attempting to pervert, the course of justice or bribery of a public official.

IBAC can investigate only where it is ‘reasonably satisfied’ that the corrupt conduct is ‘serious’.  It can refer complaints to the Ombudsman, Chief Commissioner of Police, Auditor-General, Victorian Inspectorate or WorkSafe for investigation if it thinks it more appropriate for that body to investigate it.

IBAC is not prevented from investigating a complaint simply because the subject of the complaint is no longer a public officer or body.

Type of conduct: ‘improper conduct’ of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC/ Protected Disclosure Coordinator within a Department or Administrative Office (when it concerns their employee)/ the Ombudsman

IBAC can receive ‘disclosures’ about ‘improper conduct’ and has responsibility for determining whether a disclosure is a protected disclosure and which body will investigate.

Improper conduct means ‘corrupt conduct’ (as above) or specified conduct that is outside 'corrupt conduct' which includes:

• a substantial mismanagement of public resources, or
• a substantial risk to public health or safety, or
• a substantial risk to the environment.

The conduct must be serious enough that if proven it would constitute a criminal offence or reasonable grounds for dismissal.

‘Protected disclosures’ about employees of Departments or Administrative Offices can also be made to the Protected Disclosure Coordinator or the head of that Department or Administrative Office; or the supervisor of either the person making the disclosure (if they are a public servant) or the supervisor of the employee who is the subject of the disclosure.

The Ombudsman may also receive 'disclosures' about 'improper conduct', but only if the Ombudsman would be authorised to investigate the subject matter of the disclosure in the event it was determined by IBAC to be a protected disclosure.  If in doubt, a disclosure about improper conduct should be made to IBAC.

Protected disclosures about particular senior public servants including the Chief Commissioner of Police, the DPP and the Solicitor General can only be made to IBAC.  For a full summary, see VGSO’s previous newsletter on this topic.  The newsletter also sets out the whistleblower protections that come with making a ‘protected disclosure’.

 

Type of conduct: complaints about IBAC and its officers

Body: the Victorian Inspectorate (Inspectorate)

The Inspectorate started on 10 February 2013.  The Inspectorate can receive and investigate complaints about conduct of IBAC and its officers.

Type of conduct: complaints about the Chief Examiner, an Ombudsman officer or an officer of the Auditor-General's office

Body: IBAC or the Inspectorate

IBAC or the Inspectorate can receive and investigate complaints about conduct of the above officers.

Type of conduct: complaint about decisions and conduct under the Freedom of Information Act 1982 (Vic)

Body: Freedom of Information Commissioner

The Freedom of Information Commissioner started on 1 December 2012.  She deals with complaints about freedom of information (FOI) decisions.

With the establishment of the Commissioner, complaints about FOI decisions must be made to the FOI Commissioner, not the Ombudsman.  Complaints about the FOI Commissioner can be made to the Ombudsman or, if the complaint is about 'corrupt' conduct or 'improper' conduct, IBAC. 

Type of conduct: complaints about the performance of the duties and functions of the Inspectorate or the FOI Commissioner

Body: the Accountability and Oversight Committee of Parliament

Under the new integrity regime, Parliamentary committees have also been established to oversee a number of integrity bodies.  The Accountability and Oversight Committee is a joint investigatory committee established to monitor, review and report on the exercise of duties, powers and functions of the FOI Commissioner, the Ombudsman, and the Inspectorate (in respect of Ombudsman officers).

Type of conduct: complaints about IBAC or the Inspectorate

Body: the IBAC Committee of Parliament

The IBAC Committee is a joint investigatory committee established to monitor, review and report on the performance of duties and functions of IBAC and the Inspectorate (other than in respect of officers of the Ombudsman or the Auditor-General).

Type of conduct: complaints about the Auditor-General

Body: the Public Accounts and Estimates Committee of Parliament

As before, the Auditor- General remains subject to the Public Accounts and Estimates Committee, which now also has responsibility for oversight of the Inspectorate’s functions in respect of the officers of the Auditor-General.

Type of conduct: ‘protected disclosures’ about members of Parliament

Body: Speaker/ President

Disclosures about members of the Legislative Assembly must be made to the Speaker of the Legislative Assembly.  Disclosures about members of the Legislative Council must be made to the President of the Legislative Council.

For more information about public sector governance and integrity in the Victorian Public Sector, please contact:

Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au

Katie Miller
Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au

Time to spring-clean your privacy policy?

Big reforms are afoot in federal privacy law.  They don’t change Victorian law but they do give Victorian agencies some reasons to spring-clean their privacy policies.

Federal changes

From 12 March 2014, the Australian Privacy Principles (APPs) will apply to private sector organisations and Commonwealth Government agencies.

The APPs are a single set of principles that will replace the separate sets of public and private sector principles at the federal level, known as the Information Privacy Principles (IPPs) and the National Privacy Principles (NPPs) respectively.

These are the most significant amendments to the Privacy Act 1988 (Cth) since its commencement.  Most of the APPs are based on the existing IPPs and NPPs.  However, the APPs also include some significant changes in order to keep pace with changing technology, emerging privacy issues and developments in privacy law in Australia and internationally.

What does this mean for State government entities?

These reforms don’t change Victorian law.  However, it is an important development for the Victorian government to monitor because:

• it affects the privacy rights of individual Victorians; and
• if the move toward national uniform legislation proposed by the previous federal Government proceeds, it could ultimately affect the privacy obligations of Victorian public sector bodies.

The privacy principles in the Information Privacy Act 2000 (Vic) and the Health Records Act 2001 (Vic), which apply to the handling of personal information and health information by the Victorian public sector, are both adapted from the NPPs.  This was done, as explained in the Explanatory Memorandum to the IP Act, to maintain as ‘much consistency as possible’ with ‘perceptions and practice already operating nationally’.

Because the Victorian principles are based on the NPPs rather than the IPPs, the obligations of Victorian government agencies are, in many respects, similar to those that private sector organisations and Commonwealth government agencies will now have to comply with.  Victorian agencies have long been required to:

• have a clear and accessible policy about the management of personal information by the agency; and
• provide individuals with the option of not identifying themselves when entering transactions with the agency.

Other requirements of the APPs do not explicitly feature in Victorian law.  These include new obligations when an entity receives unsolicited information or engages in direct marketing.

Privacy policies

Although these new federal privacy reforms do not directly affect the privacy obligations of the Victorian public sector, there are two reasons why Victorian agencies might want to review their current privacy policies.

Firstly, whilst VIPP 5 has long required Victorian public sector organisations to have clearly expressed policies on managing personal information, the new APP 1 is far more prescriptive as to what an agency’s privacy policy should specify.  It requires privacy policies to contain the following information:

the kinds of personal information that the entity collects and holds;

how the entity collects and holds personal information;

the purposes for which the entity collects, holds, uses and discloses personal information;

how an individual may access personal information about the individual that is held by the entity and seek the correction of such information;

how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint;

whether the entity is likely to disclose personal information to overseas recipients;

if the entity is likely to disclose personal information to overseas recipients—the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.

Further guidance on each of these items is set out in the draft guideline for APP 1.

Given that the previous acting Victorian Privacy Commissioner wrote approvingly of the level of detail in APP 1, it would be a worthwhile exercise for Victorian agencies to consider if their policies match these more prescriptive requirements.

Secondly, the Office of the Australian Information Commissioner (OAIC) has recently conducted a ‘privacy sweep’ of the websites most used by Australians.  It assessed nearly 50 website privacy policies for accessibility, readability and content. 

The OAIC found that most sites had issues with either readability, provision of contacts for further information, relevance or length.  In particular, it was concerned that the average length of policies was over 2600 words, which it considered was too long for people to understand the key points.

The OAIC helpfully identified the following characteristics of the better privacy policies, which might be of interest to Victorian agencies thinking of updating their privacy policies:

Some of the best examples observed during the sweep were policies that made efforts to present the information in a way that was easily understandable and readable to the average person.  This was accomplished through the use of plain language; clear and concise explanations; and the use of headers, short paragraphs, FAQs, and tables, among other methods.

Most organisations included contact information for the particular individual responsible for privacy practices.  Providing more than one option for contacting that individual (eg mail, toll-free number and email) is a thoughtful way of ensuring there are no barriers to contacting an organisation about its privacy practices.

Some policies had been tailored for mobile apps and sites, going beyond simply providing a hyperlink to an organisation's existing website privacy policy.

In some instances, organisations provided both a simplified and full policy to assist their customers to understand what will happen to their personal information.

If you are in the Victorian government and would like advice on these developments or your privacy policy, please contact:

Carolyn Doyle
Principal Solicitor
t 9032 3038
carolyn.doyle@vgso.vic.gov.au

What to do when someone throws the Constitution at you

It can happen to any litigator.  Show up to court, ready to argue your (seemingly non-constitutional) case, only to be faced with a constitutional argument and the resultant scurrying around as the parties try to ascertain and meet the notice requirements under the Judiciary Act 1903 (Cth).

The procedure isn’t complicated, but it has been known to catch parties unaware.  This is because constitutional arguments can pop up in many types of litigation and often after proceedings have commenced.  This means that lawyers who would not otherwise practice in these areas may need to quickly get their head around the procedure and its rationale.

Here’s a quick how-to guide.

Section 78B of the Judiciary Act requires a notice to be sent to all nine Attorneys-General whenever any court proceeding ‘involves a matter arising under the Constitution or its interpretation’.  Don’t forget the Territories!  See our previous post on how to serve the Victorian Attorney-General.  The other jurisdictions have similar agreements with their government solicitors.

The court ‘cannot proceed’ until it is satisfied that this procedure has been followed.  However, s 78B(2)(c) enables a court to continue to hear evidence and argument on matters that are severable from the constitutional question.  And s 78B(5) provides that a court may proceed immediately to hear urgent interlocutory proceedings where the court thinks it necessary to do so. 

If the constitutional point is frivolous or unarguable, the Court can determine that s 78B does not apply.  The matter must ‘really and substantially’ involve a matter arising under the Constitution to invoke s 78B, meaning the argument has to relate to a live issue in the proceeding and has to have some merit.

The court does not need to wait for a response from all Attorneys-General before proceeding.  It is sufficient if steps have been taken that ‘could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General’.

The point of the s 78B procedure is to make sure that the Commonwealth and the various States and Territories have the opportunity to be heard before any court decision about the Constitution.  This is because their interests can be affected by decisions on constitutional law, particularly ones decided by the High Court.  When an Attorney-General intervenes, the courts also get the benefit of the legal skills of the various Solicitors-General (who generally represent their respective Attorneys-General in constitutional proceedings, at least in the High Court).

The obligation to issue notices applies in every court in Australia, from the High Court to the Magistrates Court.  VCAT does not have power to determine questions arising under the Constitution and thus the 78B question should not arise in that forum.

The courts have introduced Rules to regulate procedural issues arising from the giving of s 78B notices – see Part 5 of the High Court Rules, Division 8.2 of the Federal Court Rules, Order 19 of the Supreme, County and Magistrates Court Rules.  Note that in the federal courts, the party that raised the argument must prepare the notice, whereas the State Rules permit a court to order a different party prepare the notice.  Victorian courts have been known to order that the State party prepare a notice outlining a constitutional argument raised by another party, which can be very difficult if that party is unable to clearly enunciate that argument.

If you are in the Victorian Government and require advice on constitutional litigation, please contact:

Rachel Amamoo
Managing Principal Solicitor
t 8684 0899
rachel.amamoo@vgso.vic.gov.au

Sex - the new definition

Is ‘sex’ limited to male or female, or can it include individuals who identify as neither?  For the first time, an Australian court has legally recognised people who do not identify as male or female.

This case doesn’t have any immediate consequences for the interpretation of Victorian laws.  However, it provides food for thought for Victorian legislative drafters, policy developers and certain public servants, such as those working in criminal law or other laws premised on a binary understanding of sex.  It could also be raised in Victorian matters involving recognition of the non-specific gender of a person.

In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, the NSW Court of Appeal considered the meaning of ‘sex’ in the context of the NSW Births, Deaths and Marriages Registration Act 1995 (NSW BDMR Act).  The decision was handed down on 31 May 2013.

The appellant, Norrie, was born male and had a sex change operation that left Norrie not identifying with either gender.  In March 2010, the NSW Registrar of Births, Deaths and Marriages issued Norrie with a Recognised Details Certificate, which recorded Norrie's sex as 'not specified'.  This type of certificate is issued to immigrants to Australia, such as Norrie who was born in Scotland, who have changed sex and want it formally recorded.  However, shortly afterwards, Norrie was advised by the Registrar that the Certificate had been issued in error and was invalid.  The Registrar claimed that her power to register a sex change was limited to a change from male to female or vice versa.

Norrie first applied for review of the Registrar's decision to the NSW Administrative Decisions Tribunal (ADT), which dismissed the application.  Norrie was also unsuccessful before the Appeal Panel of the ADT.  Accordingly, Norrie appealed the Appeal Panel's decision on a question of law in the NSW Court of Appeal. 

The issue was whether the Registrar's power under s 32DC to register a person's change of ‘sex’ after a ‘sex affirmation procedure’:

• is limited to registering a change of a person's sex from male to female (or vice versa); or
• extends to changing the sex to some other specification.

‘Sex’ is not defined by the NSW BDMR Act.  Section 32A defines ‘sex affirmation procedure’ as:

a surgical procedure involving the alteration of a person's reproductive organs carried out:
(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
(b) to correct or eliminate ambiguities relating to the sex of the person.

Section 32A(b) was relevant to Norrie.

The Registrar contended that:

• ‘Sex’ should be given its ordinary meaning – that is, male or female – given there was no contrary intention in the Act. 
• The use of the phrase ‘opposite sex’ in s 32A confirmed this interpretation, as the meaning of sex should remain constant throughout the Act. 
• As other NSW legislation was premised on a binary construction of ‘sex’, it would be contrary to the purpose of the Act, which was to clarify a person’s legal status, to enable registration of a sex not recognised in any other NSW law.

This last point may be of interest to Victorian legislative drafters and certain public servants, particularly those working in criminal law.  The decision identifies several NSW legislative provisions based on a binary understanding of sex that may no longer protect a person like Norrie.  Such examples also exist in Victoria, including: 

• Criminal offences committed against females such as compelling sexual penetration of a vagina and offences relating to unlawfully detaining a female for immoral purposes.
• Protections in the criminal process, including:
• bodily searches under the Crimes Act 1958, the Control of Weapons Act 1990 or the Terrorism (Community Protection) Act 2003
• the taking of photographs under the Sex Offenders Registration Act 2004
• the composition of meetings of the Youth Parole Board and Youth Residential Board.
• Pension entitlements under the Coal Mines (Pensions) Act 1958.
• Construction of implied covenants under the Property Law Act 1958.
• Nomination to be a community visitor under s 28 of the Disability Act 2006, or to be a member of the Forensic Leave Panel or the Mental Health Review Board.
• Arguably, adoption leave under the Payroll Tax Act 2007.

The Court disagreed with the Registrar, finding it was open to the Registrar to register Norrie’s sex as ‘non-specific’.  It reasoned as follows:

• The word ‘sex’ no longer bears a binary meaning of male or female, according to extrinsic material including the most recent Oxford Dictionary, academic material, a very broad interpretation of the Second Reading Speech and the rule that beneficial legislation should be interpreted liberally.
• The use of the word ‘sex’ in the definition of ‘sex affirmation procedure’ did not limit its meaning in s 32DC (where it is unqualified).  Rather, the recognition in s 32A(b) of sexual ambiguities is an indication that Parliament intended ‘sex’ in s 32DC to be interpreted liberally.
• The possible legislative consequences of the registration of a person as neither male nor female should not dictate the construction of s 32DC.  This is because no one is compelled to seek a change of sex, and because courts may be able to interpret legislation in individual cases to avoid any absurdity.

The Registrar has applied to the High Court for special leave to appeal the decision. 

The only people for whom this decision has direct consequences are those in NSW who meet the requirements of Part 5A of the NSW BDMR Act (ie persons who have undergone a 'sex affirmation procedure').

The Victorian Act is likely distinguishable as its definition of 'sex affirmation surgery' excludes the second limb of the NSW definition.

However, the decision may have indirect consequences in Victorian case law and legislative and policy development.

Firstly, the decision may be persuasive to a Victorian judge, regardless of the differences between the two Acts.

Secondly, the decision is consistent with new federal laws and the policy of the previous federal Government to define ‘sex’ more broadly than as male or female and to change public service practices in this regard.

The federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed by the previous Parliament on 25 June 2013 and will commence before the end of the year.  It amends the Sex Discrimination Act 1984 to cover discrimination on a range of new grounds, including intersex status.

Assuming the amendments are valid, if the Victorian Act is not proscribed under the new s 40(2B) of the federal Act, any sections of the Act that are inconsistent with the Commonwealth law will be invalid to the extent of the inconsistency.  The Explanatory Memorandum noted that the previous federal Government had not yet decided which Victorian laws that might be proscribed under this provision.

Also, the previous federal Government developed guidelines on sex and gender recognition for federal departments and agencies.  The Australian Government guidelines on the recognition of sex and gender, which came into force on 1 July 2013, standardise sex and gender classification in federal government records and evidence required to establish or change sex.  All departments and agencies have until 1 July 2016 to comply with the guidelines.

If you are in the Victorian Government and would like more information about this decision and its possible consequences, please contact:

Joanne Kummrow
Managing Principal Solicitor
t 8684  0462
joanne.kummrow@vgso.vic.gov.au

Changes to the Public Private Partnerships guidelines

In May 2013, the Treasurer Michael O'Brien announced significant reforms to the Victorian Government's public private partnership (PPP) guidelines.  The new Partnerships Victoria Requirements, together with the National PPP Policy and Guidelines, apply to the next phase of Victorian PPP projects.

The areas of reform include the following.

Expanding the type of services that can be provided

The Government will consider expanding the type of services that can be provided under the PPP model to include services that were previously delivered by the public sector.  For example, the Ravenhall Prison Project (for which Expressions of Interest are currently being evaluated) will include custodial services provided by the private sector. 

Applying the PPP model to small-scale projects

Projects valued at less than $50 million may use a streamlined PPP model to generate private investment if they have suitable value for money drivers.  Alternatively, projects can also be bundled together to attract the PPP model.

Changing how value for money is assessed

The Public Sector Comparator (PSC) will continue to be used as a benchmark to test value for money for PPP projects.

However, if bidders do not meet the risk adjusted PSC cost expectations through the procurement process, this does not necessarily mean the Government will revert to traditional design and construct delivery.

Government must also now develop a scope ladder alongside each PSC.  Its purpose is to identify any scope items that bidders can remove or add should bids be over or under the PSC. 

Reducing bid costs

The reimbursement of partial bid costs for some PPP projects will be trialed.  Government will communicate its approach for reimbursement for a particular project at the time of releasing the Expression of Interest.  The Government may also consider reimbursing some bid costs incurred by losing bidders in exchange for intellectual property in their unsuccessful bid, on a project specific basis.

The new requirements are also aimed at process improvements, including to:

• minimise information submission requirements; 
• shortlist only two bidders where appropriate; and 
• avoid ‘best and final offer’ processes where possible.

Modified financing structures

The Government will consider making partial capital contributions for some PPP projects.  Normally, construction of PPPs is financed entirely by the private sector and repaid by the Government over the life of the project.  This change in policy is aimed at increasing private sector investment by providing an alternative to full private finance.

Government contributions could be made either as:

• milestone payments during construction (eg for large scale projects); or
• a lump sum payment once construction is complete. 

For more information about public private partnerships, please contact

Julie Freeman
Assistant Victorian Government Solicitor
t 9947 0404
julie.freeman@vgso.vic.gov.au

How to sue the government

As government lawyers, you may receive originating processes served on your department or agency.  One of the first questions you should ask is whether it identifies the correct State party.

This is not always as easy as it seems.  Here’s an overview of the basic rules.

Of course, if you are served with documents and you intend to engage our office, you should do so as soon as possible to ensure you meet the deadlines for filing response documents.

Civil and constitutional cases

Federal courts

In federal courts, the State must bring any suit in the name of the Attorney-General of Victoria or his appointee.  But in the rare situation that the State responds to an action in a federal court, the correct party would generally be the State of Victoria (as here).

To serve the State in a Federal or High Court proceeding, you should serve the Attorney-General or the VGSO (on his behalf).  Our service details are here.

State courts

To sue the Victorian government in a State court, the correct party is generally the State of Victoria.

This includes where the State of Victoria is vicariously liable for the torts of its servants or agents.  However, if the grievance is with a statutory corporation about a contract it has entered into or a tort of any of its servants or agents, the correct party is the relevant statutory corporation.

In all State courts, service of documents on the State of Victoria is via the VGSO.
We are also authorised to accept service on behalf of Ministers.

Judicial review (in the Supreme Court)

In judicial review proceedings (whether brought under Order 56 or the Administrative Law Act), the application for review or originating motion must be directed to:

• the relevant decision-maker (or its members); and
• any party interested in maintaining the decision.

For example, in this case, the Municipal Building Surveyor had issued notices asking a property owner to demonstrate why he was permitted under the Building Act to use some flats at Docklands as serviced apartments.  The property owner appealed the notices to the Building Appeals Board, who dismissed the Appeal.  The parties to the Supreme Court judicial review proceeding were:

• as plaintiff – the property owner;
• as first defendant – the Building Appeals Board (who took a Hardiman position, that is, took no active role in the proceeding);
• as second defendant – the person fulfilling the role of Municipal Building Surveyor who issued the notices; and
• as third defendant – the Council who appointed the Surveyor.

If the decision-maker is a judicial or public authority or the holder of public office, he or she should be described by the name of the authority or office.  For example, in this case, the defendant was correctly identified as the “Health Services Commissioner” (an office created by statute), rather than the name of the person who held the office at the time. 

What if the body that made the decision is not a legal entity?  For example, in this case, the respondent was the Appeals Costs Board – a statutory body comprised of a number of people appointed by the Attorney-General that was not a body corporate.  The Supreme Court said the proper respondents were the particular members of the Board who made the decisions sought to be reviewed.

Finally, it is important to identify the person or body who actually made the decision being challenged.  In this case, a prisoner sought (amongst other things) an injunction allowing him to send a letter to one of his victims.  He applied for an injunction against the Commissioner for Corrections.  But under the Corrections Act, it is the Governor of a prison that has the power to stop letters from prisoners, not the Commissioner.  The Court asked for the application to be brought against the correct defendant.

Merits review (in VCAT)

In a merits review proceeding, the parties are:

• the applicant;
• the decision-maker who made the decision;
• any person joined as a party to the proceeding by the Tribunal; and
• any other person specified by legislation as a party (for example, co-owners of land in an application to sell co-owned land).

As with judicial review, a decision-maker who is the holder of a public office or holds a position in the public service is to be described by their position.

Unlike judicial review, a person whose interests are affected by the decision does not have a right to party status.  The tribunal may decide not to join a party if their joinder would cause expense or delay.

Also unlike judicial review, the appropriate respondent may be an unincorporated body. For example, in freedom of information cases, unincorporated bodies can be considered the ‘agency’ that made the decision.

And finally, unlike judicial review, the decision-maker who made the decision may not take a Hardiman approach and must play an active role in the proceeding, helping the Tribunal understand the decision.

If you are in the Victorian government and have been served with court documents, please contact:

Stephen Lee
Assistant Victorian Government Solicitor
t 8684 0410
stephen.lee@vgso.vic.gov.au

How to be a five-star witness

Government solicitors are often asked to prepare departmental or other witnesses to give evidence in court or VCAT.  You may not coach witnesses, that is, suggest answers to questions.  But here are some tips that you can provide to them to make their (and your) life easier before what can be a nerve-wracking experience.

The days before

• Do not discuss your evidence with other witnesses.
• Review any notes or statements you have made.
• Find out where the court is and how long it will take you to get there.
• Find out how long you will be needed for.  Courts normally sit from 10 until 4, with a one-hour break at 1pm.  VCAT listings vary.  Every effort will be made to minimise the time you spend at court, but be prepared to wait.

On the day

• Bring any statements or notes you have made about the case with you to court. Tell the solicitor which documents you have brought.
• Choose clothes that show respect for the judge and the court proceedings.  Look professional, dressing appropriately for your position.
• Make sure there are no sharp or glass objects in your bag (e.g. knitting needles, tweezers, umbrellas).
• Get to court in good time.  There may be a queue to pass through security.
• Turn your phone off before you enter the courtroom.

In the minutes before

• Sit outside the courtroom until it is time for you to give evidence.  Someone will come and get you when it is your turn.
• Before giving evidence, you will be asked if you wish to take an oath or make an affirmation that your evidence is true.   

Giving evidence

• The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined (by asking additional questions).  The witness may then be ‘re-examined’. Once this process has happened, the defence will do the same with its witnesses.
• The Judge, Magistrate or Member may also ask you questions about your evidence.  You should address the Judge or Magistrate as ‘Your Honour’.  In VCAT, it depends on the seniority of the Member hearing your case:
• The VCAT President is addressed as ‘Your Honour’
• Vice Presidents are addressed as ‘Judge’.
• Members are addresses as ‘Sir’ or ‘Madam’ or as ‘Ms’ or ‘Mr’ and the Member’s surname. 
• Giving evidence is not a memory test.  You don’t get points for answering every question.  Do not guess or speculate. If you are not sure about an answer, just say so, else you may do more harm than good.  You can’t say, for example, ‘I would have done X’ or speculate about why a person acted in a particular way.
• Listen to and think about each question before you answer. 
• Give evidence in your own words.
• Make your answers as specific as you can.  Do not generalise.
• If you do not understand a question, you should say so.
• Do not say what someone else has told you unless you are asked.
• Explain any technical terms you have to use.
• Speak clearly so that your evidence can be understood. The microphone in front of you only records your voice. It does not make it louder.  You are giving evidence to the judge, so face them when answering a question
• You should not look at your notes without permission from the Judge.  If you are having trouble remembering details or accurately answering the questions, ask the Judge for permission before looking at any notes that you made at the time when the events were fresh in your memory.
• Cross-examination normally takes the form of a series of propositions put to you by the other side’s barrister. If you do not agree with all parts of the proposition, say so.  If you do not know whether a proposition is right, say so.  Don’t just agree with the barrister because you don’t want to seem obstinate.
• Don’t lose your patience with the other side’s barrister when being cross-examined.  The best witnesses remain neutral and focused. 
• If a witness has never been cross-examined before, one way a solicitor can help a witness understand how it feels is to engage in a mock cross-examination beforehand, using the type of questioning styles that a barrister would use in court.  This mock cross-examination should not be based on facts similar to the actual hearing.
• If you qualify as an expert witness (and meet all the requirements for this status), you may give opinions within your expertise.  Otherwise you can only give evidence of facts.

After

• After you have given your evidence and are excused by the court, you are free to leave. You may stay in the courtroom if you wish, unless you are expected to give evidence again later in the case.

VGSO has a network of experienced advocates who can represent Victorian government clients in all courts and tribunals.  Briefing our in-house advocates, rather than a barrister, can be more cost effective and ensures access to our expertise in specialist areas of Victorian government law.  Having regard to the demands of a particular matter, we can provide advocates ranging from our Special Counsel to solicitors of various seniority.  For more information about VGSO advocates, please contact

Hayley Petrony
Assistant Victorian Government Solicitor
t 9947 3011
hayley.petrony@vgso.vic.gov.au