Wednesday 30 October 2013

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.


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.


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.


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

Nicholas Tiverios
t 8684 0430

Wednesday 23 October 2013

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:

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

Matt Carrazzo
Senior Solicitor
t 8684 0497

Tuesday 15 October 2013

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

Katie Miller
Principal Solicitor
t 8684 0460

Tuesday 8 October 2013

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

Tuesday 1 October 2013

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