Wednesday 18 December 2013

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

Tuesday 10 December 2013

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

Bruce Chen
Senior Solicitor
t 8684 0425

Tuesday 3 December 2013

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. 


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