A duty to prevent a person from harming others? The latest from the High Court

On 12 November 2014 the High Court handed down judgment in Hunter and New England Local Health District v McKenna, unanimously allowing an appeal against an award of damages arising out of the deliberate killing of a man by his severely psychiatrically disturbed friend. While the Court's judgment only directly concerns the liability in tort of medical practitioners who exercise statutory functions relating to the involuntary hospitalisation of psychiatric patients, it is likely to have significant implications for statutory bodies charged with the exercise of public functions.

The Facts

Early in the morning of 20 July 2004, Mr Stephen Rose became concerned about the mental state of his friend Mr Phillip Pettigrove, who suffered from schizophrenia. Mr Rose took Mr Pettigrove to Manning Base Hospital in Taree. Upon his arrival at the hospital, Mr Pettigrove was admitted as an involuntary patient under the former Mental Health Act 1990 (NSW).

During the afternoon of 20 July 2004, hospital staff examined Mr Pettigrove and discussed his condition with Mr Rose. It was determined that Mr Pettigrove would be discharged into the care of Mr Rose, who would take him by car to his mother's home in Echuca. On the morning of 21 July 2004, Mr Pettigrove and Mr Rose departed Taree for Echuca. That night, while in a delusional state, Mr Pettigrove strangled Mr Rose to death.

Mr Rose's mother and his two sisters alleged that they had sustained psychiatric injury as a result of Mr Rose's death and commenced proceedings for damages against the hospital authority. They alleged that hospital staff had been negligent in failing to order the continued involuntary treatment of Mr Pettigrove and that this negligence had been a cause of Mr Rose's death and of their subsequent psychiatric injuries. At trial, the plaintiffs were unsuccessful. However, they successfully appealed to the New South Wales Court of Appeal. The hospital authority then appealed to the High Court.

The NSW Act

Central to the case were the provisions of the NSW Act. Section 21 provided for the involuntary detention of a person in a hospital if a medical practitioner certified that he or she was mentally ill. However, the Act contained numerous safeguards to protect the rights of patients. In particular, it provided that a decision to involuntarily admit a patient was subject to multiple stages of internal review by specialist medical practitioners and that the involuntary admission of a patient pursuant to the order of a medical practitioner could not exceed three days' duration. Thus the Act manifested a strong bias against involuntary detention. This policy was reflected in the express terms of section 20 of the Act, which provided that involuntary admission was not to be ordered where a less restrictive treatment option was reasonably available.

Judgment

The High Court held that staff at the hospital owed no duty to take reasonable care in determining whether or not to order the continued involuntary treatment of Mr Pettigrove. The Court considered that this conclusion was mandated by the express terms of s 20 of the NSW Act and by other provisions which 'reinforced' the policy enunciated in s 20. The Court determined that to impose upon hospital staff a common law duty to take reasonable care in determining whether to order the continued involuntary treatment of Mr Pettigrove would be inconsistent with the strong presumption against involuntary treatment manifested in the Act.

Implications for Decision Makers

While the judgment of the Court directly concerns only the specific provisions of the (now repealed) NSW Act, it will be welcomed by parole boards, quarantine authorities and other decision makers whose powers require them to balance the interests of individuals against the interests of the wider community. The imposition of a duty to take reasonable care in the exercise of such powers has the potential to act as a potent incentive to a decision maker to make the decision that he or she considers least likely to result in an award of damages, rather than the one he or she considers to be correct or preferable. It thus may place a decision maker in an impossible situation in which the proper performance of a statutory function carries with it a risk of incurring liability in damages, while minimising the risk of liability entails neglecting the performance of a statutory duty. The judgment of the High Court contributes to a body of authority, which includes such cases as Sullivan v Moody, Regent Holdings v State of Victoria and X v State of South Australia, that holds that a duty of care will not be found to exist in such circumstances.

If you are in the Victorian Government and would like further guidance on decision-making, risk and liability, we can help.

Jonathan Bayly
t 8684 0223
jonathan.bayly@vgso.vic.gov.au

Show us the documents - a precursor to show us the money?

Settling claims prior to the issuing of court proceedings saves time and money, and complies with the State's model litigant obligation to pay legitimate claims without recourse to litigation.  But does the State have an obligation to provide a claimant with documents pertaining to the claim during pre-litigation settlement negotiations, or when a Generally Endorsed Writ (GE Writ) has been filed with the court?

Pre-litigation settlement negotiations

At its commencement, the Civil Procedure Act 2010 (the CPA) included 'Chapter 3 - Before a Civil Proceeding Commences'.  Chapter 3 contained pre-litigation requirements, including that each person involved in a civil dispute (defined as a dispute which may result in the commencement of a civil proceeding) must take reasonable steps:

•  to resolve the dispute by agreement; or
•  to clarify and narrow the issues in dispute in the event that civil proceedings were commenced. 

This included the exchange of documents critical to the resolution of the dispute.

However, Chapter 3 of the CPA was repealed in 2011 and there is now no obligation under the CPA for the State to provide documents to a claimant prior to a civil proceeding being commenced.

Filing of a GE Writ

Recently we have encountered matters where pre-litigation settlement negotiations have commenced, but claimants' solicitors have subsequently filed GE Writs with the court in order to protect their clients' rights in respect of time limit provisions under the Limitation of Actions Act 1958 (the LAA).  This effectively safeguards claimants from having to bring an application for an extension of time to commence a proceeding, if settlement negotiations ultimately prove unsuccessful. 

The claimants' solicitors have provided us with a copy of the GE Writs on an informal basis, rather than formally serving them on the State, on the basis that settlement negotiations would continue and that no action was required with respect to responding to the GE Writs. 

 What is a GE Writ?

Usually when a proceeding is commenced, a Writ and Statement of Claim (SOC), pleading the causes of action and particulars of the claim, is filed with the court and served on the State.  However, a plaintiff has the option of filing a GE Writ, which the Supreme Court (General Civil Procedure) Rules 2005 and the County Court Civil Procedure Rules 2008 (the Rules) define as a writ containing an indorsement of claim comprising 'a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding'. 

A GE Writ typically does not plead detailed particulars of the claim as in a SOC, and is generally followed by the filing and service of a SOC at a later stage.

Request for documents

Notwithstanding that in many circumstances the filing of a GE Writ was not intended to 'formally' commence proceedings, claimants' solicitors have requested that the State provide them with copies of documents pertaining to the claim in order to progress settlement negotiations.  Such requests have been made under the auspices of the CPA.

Section 26 of the CPA

Section 26 of the CPA provides that a person to whom the overarching obligations apply (being a party to a civil proceeding and their legal representatives) must disclose to each party the existence of all documents which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.  Such disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document; or such other time as a court may direct.

Is the filing of a GE Writ the commencement of a civil proceeding for the purposes of s 26 of the CPA?

The CPA defines civil proceeding as 'any proceeding in a court other than a criminal proceeding or quasi criminal proceeding'.  'Court' is defined as the Supreme, County or Magistrates' Court.

The Rules define 'proceeding' as 'any matter in the Court commenced by writ or originating motion'.  The Rules further provide that 'a proceeding shall be commenced by filing the originating process' and that 'a writ shall be valid for service for one year after the day it is filed'. 

Accordingly, notwithstanding circumstances where a GE Writ has not been formally served on the State and that its filing was intended only to preserve a claimant's rights in respect of time limit provisions under the LAA, its filing constitutes the commencement of a proceeding and consequently s 26 of the CPA applies in respect of requests for documents. 

Are there any grounds to resist a request for documents?

As noted previously, a GE Writ must provide 'reasonable particularity' about the plaintiff's claim and causes of action.  If the Writ fails to provide satisfactory detail about the claim and does not accurately identify or particularise the causes of action with any precision, we consider that it is possible and reasonable to resist a request for documents under s 26 of the CPA on the grounds that the State:

•  has insufficient knowledge about what the 'dispute' is alleged to be; and
•  is unable to identify whether documents are 'critical to the resolution of the dispute'.

If you are in the Victorian Government and would like more information about this area of law, please contact:

David Ryan

Managing Principal Solicitor

t 8684 0417

david.ryan@vgso.vic.gov.au

Andrea Robinson

Senior Solicitor

t 8684 0232

andrea.robinson@vgso.vic.gov.au

Victoria one step closer to one stop shop for environmental approvals

The Commonwealth Government has proposed to overhaul environmental approvals in Australia, by creating a 'one stop shop' approval process in each State and Territory.

In short, the Commonwealth proposes to transfer some of its current responsibilities under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to the States.  It plans to do this by creating bilateral agreements under the EPBC Act.

Bilateral agreements under the EPBC Act can do two different things.  An agreement may declare that actions assessed under State law do not need to follow an EPBC Act assessment process.  An agreement may also declare that actions that have been approved by the State do not need separate Commonwealth approval at all.

In a number of other States and territories, draft approval agreements have already been published.  Those agreements propose to implement the 'one stop shop', by removing the need for Commonwealth approvals under the EPBC Act for some actions where those actions can be and have been approved under the agreement.

On 27 October 2014, the Commonwealth and Victoria entered into a bilateral agreement, as part of the implementation of the proposed reform in Victoria.  The agreement is a step along the path towards creating the 'one stop' approval, following the steps identified in the Memorandum of Understanding between Victoria and the Commonwealth.  The agreement itself is reasonably modest.  It mainly updates and extends existing arrangements between Victoria and the Commonwealth, which allow expanded Victorian environmental assessments to stand in for assessments that would ordinarily be completed under Commonwealth legislation.

The new bilateral agreement will affect Victorian departments and agencies when taking actions with environmental impacts, when preparing environmental assessments under various Victorian Acts, when acting as decision makers, or when advising the Minister responsible for the Victorian Acts.  It is important for Victorian entities to be familiar with the updated process in the agreement.
This newsletter explains what the new agreement does, how it fits within the proposed 'one stop shop' policy, and what it will mean for Victorian departments and agencies.

If you are in the Victorian Government and would like more information about these changes, please contact:

Juliette Halliday

Acting Managing Principal Solicitor
t 8684 0299
juliette.halliday@vgso.vic.gov.au

Mark Egan
Principal Solicitor
t 8684 0489
mark.egan@vgso.vic.gov.au

Victoria reins in vexatious litigants

The Victorian courts have far greater powers to manage troublesome serial litigants since the new Vexatious Proceedings Act 2014 (Act) came into effect as of 31 October 2014.  More courts will be able to make vexatious litigant orders, more parties will have standing to apply for orders, and the threshold for making orders will be much lower.

How did the old system work?

Previously, the Attorney-General could apply to the Supreme Court under s 21 of the Supreme Court Act 1986 for a person to be declared a vexatious litigant.  The Court had to be satisfied that the person had 'habitually, persistently and without any reasonable grounds' instituted vexatious proceedings.

Vexatious proceedings include those that are commenced to annoy or embarrass the person against whom they are brought, or are so obviously groundless as to be utterly hopeless.

Vexatious litigants sometimes sue the same people repeatedly and sometimes sue a series of different people.  A vexatious litigant order can severely restrict a person’s access to the justice system.  It may prevent that person from commencing or continuing any legal proceedings in any court or tribunal without leave of the courts.

Vexatious litigants can cause a significant strain on the legal system, wasting courts’ valuable time and causing genuine stress to affected parties.  In 2008, the Victorian Law Reform Commission reported that the threshold for making orders against vexatious litigants was too high and resulted in the system being of limited utility and effect. In the past 85 years, only 21 people have been declared vexatious in Victoria.  The cost of defending or responding to such litigation can be significant for those drawn into such litigation, including on the public purse.

What are the major changes under the new system?

In addition to the Supreme Court, the Magistrates' Court, County Court, Children's Court and VCAT are now able to make vexatious litigant orders.

The Act also introduces a graduated system whereby courts can choose from one of three 'litigation restraint orders' (LROs) – a limited LRO, an extended LRO or a general LRO (the last of which is similar to the order currently available to the Supreme Court).  These orders range in restrictiveness based upon the litigant's history and pattern of behaviour.

A person who is sued by a vexatious litigant, and other persons with a sufficient interest in the matter, may now apply to the court for an LRO to be made against a person.  Only the highest-level order, a general LRO, restricts standing (to the Attorney-General) and jurisdiction (to the Supreme Court).  As a result, it is likely that a far greater number of applications will be brought under the new Act.

Will it be easier for the courts to declare someone vexatious?

Yes, both generally and with regards to the new graduated system of orders.

'Vexatious' proceedings and applications have been defined for the first time in Victoria and expand on common law principles.  Such proceedings and applications now include those that are conducted or pursued to harass or annoy, cause delay or detriment, or for another wrongful purpose.  Therefore, courts can now look beyond the merits of a litigant’s legal actions to their actual conduct.

The courts can now take into account all Australian legal proceedings and applications relevant to a vexatious litigant, not just those commenced in Victoria.  Importantly, 'relevant proceedings' include interlocutory applications and appeals, two legal avenues commonly utilised by vexatious litigants.

The tests for the lowest and mid-level LROs are also much easier to satisfy than the previous vexatious litigant order available through the Supreme Court.  All Courts and Tribunals are now empowered to make a limited LRO where a person has made at least two vexatious interlocutory applications in a given proceeding.  This order can prevent a person from continuing or making further interlocutory applications in the proceeding without the leave of the court.

Alternatively, courts and tribunals may make an extended LRO where a person has frequently commenced or conducted vexatious proceedings against a specified person (or entity) or in relation to a specific matter.  Such an order can prevent a vexatious litigant from continuing or commencing any proceedings against that person (or entity), or in relation to that matter, without the leave of the court.

Further information on vexatious litigants

Make sure to check out the Department of Justice's very useful legislative guide on the new regime. The ABC's Law Report  program has also recently uploaded an interesting episode on vexatious litigants from both the legal and health perspectives.

If you are in the Victorian Government and would like more information about these changes, please contact:

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

Alison O'Brien
Assistant Victorian Government Solicitor
t 8684 0416
alison.o'brien@vgso.vic.gov.au

Joanne Kummrow
Special Counsel
t 8684 0462
joanne.kummrow@vgso.vic.gov.au 

Dr Adrian Hoel
Principal Solicitor
t 8684 0244
adrian.hoel@vgso.vic.gov.au

High Court upholds broad anti-consorting laws (is it time to "unfriend" your bikie mates on Facebook..?)

New South Wales had a win on 8 October 2014, with the High Court upholding laws making it a crime to 'consort' with convicted offenders are valid (Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014] HCA 35). You can read the full judgment here.

The anti-consorting legislation empowers police to give people a notice to not 'habitually consort' with named persons.  'Consorting' is quite widely defined under the relevant legislation and includes consorting via electronic media, for example via Facebook or Twitter.  Breach of the notice is an offence.  The case involved a challenge by three plaintiffs (two of whom were members of the Nomads bikie gang) who had each been given a notice, and were subsequently charged with consorting.

The plaintiffs all argued that the legislation breached the constitutionally implied freedom of political communication.  Two also argued that it breached a constitutionally implied right to freedom of association, and that it was invalid for inconsistency with the International Covenant on Civil and Political Rights.

All of the grounds raised by the plaintiffs failed.

The laws are appropriate for stopping crime

A majority of 6:1 found that the anti-consorting provisions burden the implied freedom, but that the provisions are appropriate and adapted to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government (see below for Justice Gageler's distinct approach).  The High Court noted that the provisions do not unduly limit all political communications, or occasions for such communications, and that the proscribed consorting would need to be 'habitual' for the prohibition to apply, which again limited the scope of the prohibition.

But such laws could be read down in future

Justice Gageler, reaching the same conclusion via a different route, found that the provisions are not appropriate and adapted to the purpose of preventing crime, where they limit communications on political matters.  However, he found that the provisions could be read down to exclude 'consorting which is or forms part of an association for a purpose of engaging in communication on governmental or political matter', and the legislation was saved on this basis.  If this approach finds favour in future, it could lead to different results, with laws being held to not apply to political communication.

Only Chief Justice French dissented, in finding that the legislation was not appropriate and adapted because it applied to what he referred to as 'entirely innocent habitual consorting'.  The Chief Justice therefore found the provisions to be invalid.

As for the other grounds, the Court found that the freedom of association was either unnecessary to consider or could not be implied into the Constitution, and unanimously rejected the proposition that a treaty which has not been incorporated into Commonwealth law could circumscribe the legislative power of State Parliaments.

What does this mean for Victoria?

If similar legislation were introduced in Victoria, its interpretation and application would be affected by the processes required under the Charter of Human Rights and Responsibilities Act 2006, which expressly protects rights to freedom of expression and association.  The approach to determining any challenge to hypothetical similar Victorian laws may involve different considerations depending on how the legislation is framed and the nature of the dispute between parties. In determining whether Charter Act rights are limited in such a case, the court would need to engage in a balancing exercise that may involve similar considerations as those considered in this case.  Ultimately, the outcome would depend upon whether any limitation of Charter Act rights could be shown to be lawful and justified.

If you are in the Victorian Government and require advice on constitutional or human rights issues, we can help.

VGSO will be presenting a seminar, open to all Victorian Government client agencies, on this case and its implications.  It will be held on Wednesday, 19 November 2014, from 12:30-2:00pm at Level 33, 80 Collins Street, Melbourne. Please register your interest in attending by emailing marketing.team@vgso.vic.gov.au

For further information about the topic contact:

Adrian Hoel
Principal Solicitor
t: 8684 0244
e: adrian.hoel@vgso.vic.gov.au

Nahal Zebarjadi
Solicitor
t: 8684 0401
e: nahal.zebarjadi@vgso.vic.gov.au

Changing Times: Sex discrimination damages on the rise as the 'old range' debunked by 'community standards'

The Full Court of the Federal Court has blown the lid off what key commentators have been calling the discrimination damages time capsule. In Richardson v Oracle an award at trial of $18,000 for pain and suffering caused by sexual harassment at IT company, Oracle, was increased to $100,000 on appeal. The decision has some lawyers quoting Bob Dylan's 'the time's they are a-changin'. So, what happened, and why the revolutionary tenor?

The Full Court did two main things - both are critical for public sector employers who could be liable for unlawful conduct by their employees.

1. 'Unofficial range' rejected

Justice Kenny (with whom Besanko and Perram JJ agreed) held that the $18,000 awarded by the trial Judge was 'manifestly inadequate' compensation for Ms Richardson's pain and suffering. In doing so, the Court rejected a long-standing unofficial range of between $12,000 and $20,000 within which damages for all but the most extreme sexual harassment injuries have previously been awarded.

While her Honour accepted that the trial Judge fixed a sum squarely 'within the range', this was not, as her Honour put it, 'the end of the matter'. The Court identified a 'substantial disparity' between Ms Richardson's compensation and the amounts now awarded outside the sex discrimination space to victims of workplace bullying and harassment (especially in Victoria). After highlighting the dangers of relying too heavily on an unofficial range at all, the Court rejected it. The range had, her Honour stated, 'remained unchanged' for over a decade 'notwithstanding that the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience'.

Once the range was cast aside, the Court assessed Ms Richardson's loss by reference to 'general standards prevailing in the community' regarding the value of her pain and suffering: In this case, the amount was determined to be $100,000.

2. Damages awarded for Ms Richardson's 'choice to leave'

Perram and Besanko JJ (with whom Kenny J agreed) also overturned the trial Judge's finding that Oracle was not liable for Ms Richardson's financial loss upon leaving the company. Although she was not constructively dismissed or demoted, Oracle was still liable for Ms Richardson's loss. The clincher here was causation. Even though Oracle had not 'forced her out', it was liable once she 'chose' to leave because this 'choice' was itself caused by the sexual harassment. Such an analysis is not entirely new, but in Richardson the Court applied these principles to what may be a very common series of events where sexual harassment is proven.

TAKE HOME POINTS

So what does this mean for the public sector? In short, it seems the times are a changin'.

This decision confirms that, as always, employers must take sexual harassment in the workplace seriously. A failure to do so can now amount to higher damages than traditionally awarded against employers who are held to be vicariously liable for an employee's discriminatory conduct. The impact of the sexual harassment in this case, although significant, was not considered to be traumatic. Nevertheless, Ms Richardson was awarded $100,000 in recognition that 'community standards' and expectation have altered.

It is also important to bear in mind that these principles could be applied more generally in cases involving unlawful discrimination on the basis of other attributes, such as disability, race or age discrimination. The decision, therefore, has significant implications beyond cases involving sexual harassment.

Richardson is a timely reminder to review your agency's anti-discrimination policies and provide appropriate training to ensure that all employees are aware of the law and their obligations under it.
For further information about the case, advice on your agency’s anti-discrimination policies or how to keep up with the law involving anti- discrimination, please contact:

Vicki Moulatsiotis
Principal Solicitor
t 9032 3012
vicki.moulatsiotis@vgso.vic.gov.au

Katherine Francis
Senior Solicitor
t 9032 3014
katherine.francis@vgso.vic.gov.au

Hollie Kerwin
Solicitor
t 8684 0241
hollie.kerwin@vgso.vic.gov.au

White Paper on Reform of the Federation - what's in it for the States?

Australians want good services and infrastructure with minimal red tape, but accountability is important, and dividing up responsibilities and duties in our constitutional system isn't always easy. While the States have significant responsibilities for service delivery, the Commonwealth is more able to raise revenue to pay for those services. 

There are some areas that are better dealt with locally. There are other areas where a coordinated national approach is appropriate. But which approach is best and when? What does our constitutional system allow? 

The White Paper on Reform of the Federation will hopefully shed some light on these questions.

Just what is a white paper anyway?

A white paper is a report or guide helping stakeholders understand an issue, solve a problem, or make a decision. White papers tend to present a finished outcome, and so there are often green papers along the way. Green papers are usually more open-ended, presenting a range of options to facilitate consultation and help government reach a decision. And before the green papers, there may be issues papers as high level backgrounders on discrete topics. 

What's happening when?

The terms of reference for the White Paper on the Reform of the Federation were released on 30 June 2014. The first Issues Paper, "A Federation for our Future", was released 12 September 2014, and includes a detailed history of Australia's federal system. 

The Commonwealth will prepare further Issues Papers on health, education, housing and homelessness. The White Paper process will also consider transport and infrastructure, Indigenous affairs, justice, disability, welfare services, settlement services, family and parental support, disaster recovery, environmental regulation, adult and community education, and youth transitions. 

A Green Paper setting out options for reform will be released during the first half of 2015. The final White Paper setting out the Commonwealth's position is to be released by the end of 2015.

Why is the White Paper on Reform of the Federation important?

The White Paper has lofty aims: to clarify the roles and responsibilities of each level of government, to improve fiscal sustainability, and in turn help the public understand the federal system better and make interacting with government easier. 

In recent years there has been an accelerating trend towards centralisation of policy and funding in many areas, due in part to the High Court's broad interpretation of Commonwealth powers under the Constitution. 

The Commonwealth has indicated an intention to apply the principle of "subsidiarity" (or decentralisation), whereby responsibility for government services lie with the lowest possible level of government, closest to the beneficiaries of the services. 

How this might happen in practice is where it gets interesting. Under the Constitution, the Commonwealth has limited power over subject matters but broad power to tax. The States have been left with few independent revenue sources but have broad responsibilities, meaning that they are reliant on Commonwealth funding for key areas of service delivery. With funding comes the need for accountability.

As part of the White Paper process, the 2008 Inter-Governmental Agreement on Federal-Financial Relations will be revisited. That Agreement was executed with the intention to improve autonomy for States, but over time, funding agreements with restrictive conditions (also known as "tied grants") have increased. 

This time around revenue will also be on the agenda, with the White Paper on the Reform of the Federation to be closely aligned with the White Paper on the Reform of Australia’s Tax System (for which the terms of reference are yet to be released).

Will the Commonwealth propose constitutional reform? If it doesn’t, how will the Commonwealth resist the urge to impose restrictive conditions on the States receiving federal funds, just as it has since 2008? If it does, will there be bipartisan support for the proposal so that it stands a chance of satisfying our rigorous constitutional amendment process?

Where to from here? 

A Steering Committee will oversee the White Paper process, chaired by the Commonwealth and with representation from the State and Territory representatives First Ministers’ departments and the Australian Local Government Association. It will be a standing item on the COAG agenda. Details on the public consultation process to be released soon on the website at www.federation.dpmc.gov.au. 

VGSO's experts in constitutional law and intergovernmental relations can help Victorian government bodies if you require advice on engaging with the White Paper process. 

VGSO contacts:

Sky Mykyta 

Managing Principal Solicitor

 t 8684 0220

sky.mykyta@vgso.vic.gov.au

Rachel Amamoo

Managing Principal Solicitor

t 8684 0899

rachel.amamoo@vgso.vic.gov.au

When can State courts be given functions that are a precursor to a controversial executive function?

On 14 August 2014 the High Court handed down judgment in Pollentine v Bleijie. The Court unanimously rejected the plaintiffs' challenge to the constitutional validity of s 18 of the Criminal Law Amendment Act 1945 (Qld) (the Act), which provides for the indefinite detention of certain convicted sex offenders.

The Act

Section 18 provides that where a person has been convicted of a sexual offence against a child under the age of 17 years, a judge of the District Court of Queensland may, if two medical practitioners certify that the offender is incapable of exercising proper control over his or her sexual instincts, order that the person be detained in an institution at Her Majesty's pleasure. An order under s 18 may be made in addition to or in substitution for any other sentence imposed by the District Court. A person detained in accordance with s 18 is liable to be detained until such time as the Governor in Council, acting on the advice of two medical practitioners, determines that it is expedient for the person to be released.

While it is convenient to refer to the provisions of the Act in the present tense, it should be noted that, as a practical matter, the Act has largely been superseded by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). [1]

Factual Background

In 1984, each of the plaintiffs pleaded guilty in the District Court to multiple sexual offences against children. Each plaintiff was found to be incapable of controlling his sexual instincts and was ordered by the District Court to be detained at Her Majesty's pleasure. Thus at the date the Court handed down judgment, each of the plaintiffs had spent a period in excess of thirty years in detention pursuant to s 18 of the Act.

Grounds of Constitutional Challenge

The plaintiffs contended that s 18 of the Act undermines the institutional integrity of the Queensland court system contrary to the principles identified by the High Court in Kable v Director of Public Prosecutions (NSW). They submitted that the Act breaches the Kable principles in three ways:

• Firstly, the plaintiffs submitted that s 18 impermissibly delegates to the executive government of Queensland the task of sentencing criminal offenders;
• Secondly, they submitted that an order of the District Court under s 18 is merely a cloak used to give a neutral, apolitical and judicial colour to what is in reality punitive detention by the executive branch of government; and
• Finally, the plaintiffs submitted that as the Act contains no provision empowering the District Court to revoke or vary an order made by it under s 18, it does not contain sufficient 'safeguards' to protect the integrity of the District Court.

The Court's Decision

In dismissing the plaintiffs' challenge to the validity of the Act, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ reiterated that the Kable doctrine does not imply into the constitutions of the States a rigid separation of judicial and political power. In addition, the majority noted that the Act does not purport to require the District Court to undertake the tasks of statutory construction and fact finding in a manner that is inconsistent with the ordinary processes of the criminal law; the Act merely confers upon the Court a discretion to make an order under s 18 if it is satisfied on the evidence before it that the criteria for making such an order are met. Finally, the majority observed that indeterminate detention by the executive government of persons found in judicial proceedings to be incapable of controlling their impulses has a lengthy history in Anglo-Australian law.[2] For these reasons, the majority held that the plaintiffs' challenge to the validity of the Act must fail.

Gageler J delivered a separate concurring judgment. His Honour emphasised that the Act does not provide for the detention of persons by the executive government as punishment for the commission of an offence; rather it authorises indefinite detention for a purpose that 'is properly characterised as wholly protective.' Gageler J rejected the plaintiffs' submission that the power of detention conferred upon the executive government by the Act is 'unconstrained', noting that any determination made by the Governor in Council with respect to the continued detention of a person pursuant to the Act is subject to the constitutionally entrenched jurisdiction of the Supreme Court of Queensland to review executive action for jurisdictional error. His Honour therefore held that the Act did not undermine the integrity of the Queensland court system.

What Does the Decision Mean?

The judgments delivered by the Court in Pollentine contribute to the ongoing process of precisely defining the constitutional principle that was first enunciated in a somewhat impenetrable form in Kable. The judgments of the majority and of Gageler J confirm that Chapter III of the Commonwealth Constitution protects the integrity of State judicial systems by rendering invalid State laws which interfere improperly in the process of judicial decision making.

Thus the Kable principle has been applied to invalidate legislative action which has had the effect of requiring a court of a State to proceed in an unfair or arbitrary manner or to apply findings of fact foisted upon it by the executive branch. The Kable principle does not entrench in the constitutions of the States a rigid separation of powers of the kind embodied in the Commonwealth Constitution. Rather, to adopt the words of Blackmun J in Mistretta v United States, the Kable principle exists to ensure that the reputation of a State court 'may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action.' The principle is directed towards laws which, even if facially neutral, compel a State court to reach a conclusion which has been pre-ordained by one or other of the political branches of government.

The judgments in Pollentine confirm that the Kable principle does not detract from the power of a legislature to confer upon a State court an impartial function of a genuinely judicial nature that serves as a precursor to the exercise by the executive government of some other function. The exercise by the Executive of a function that is contingent on the completion of a judicial process is not at all equivalent to the co-option for political ends of a nominally judicial process.

For more information about the limits the Kable principle places on State governments, please contact:

Jonathan Bayly
Principal Solicitor
03 8684 0223
jonathan.bayly@vgso.vic.gov.au

---

[1] The validity of that Act was upheld by the High Court in Fardon v Attorney-General (Qld).

[2] The majority referred to the provisions of the Criminal Lunatics Act 1800 (UK), which was enacted in response to the case of James Hadfield, who on 15 May 1800 attempted to assassinate George III as the King entered the royal box at Drury Lane Theatre. At the suggestion of Lord Kenyon CJ, who presided over Hadfield's trial, the jury in Hadfield's case returned a verdict of 'not guilty, it appearing to us that he was under the influence of insanity when the act was committed.' Hadfield was subsequently detained in custody, notwithstanding that at the time he was convicted, there was no lawful basis on which to imprison a person who had been acquitted of an offence. The Criminal Lunatics Act was introduced in response to the lacuna in British criminal law exposed by Hadfield's case: see Sir Owen Dixon, 'A Legacy of Hadfield, M'Naghten and Mclean', (1957) 31 Australian Law Journal 255.

Privacy Bill Passes

This week Victoria’s much anticipated Privacy and Data Protection Bill 2014 (PDP Bill) was passed by the Legislative Council. Once proclaimed, the new Act is set to commence no later than 9 December 2014. 

This Bill repeals the Information Privacy Act 2000 (IP Act) and the Commissioner for Law Enforcement Data Security Act 2005 (CLEDS Act), and creates a new office of the Commissioner for Privacy and Data Protection (Commissioner) with broad powers of oversight and enforcement. The Bill does not affect the existing legislative arrangements whereby Commonwealth agencies and some private sector entities and individuals are subject to the Privacy Act 1988 (Cth) (Commonwealth Privacy Act).  Victoria’s health privacy regime under the Health Records Act 2001 and related legislation is also unaffected by the Bill.

The Bill ushers in a new era with new emphases not only for privacy practitioners but also for public sector body Heads, who will need to pay close attention to their protective data security obligations.

Information Privacy – what’s different, what stays the same?

Provisions of the IP Act that are taken to be re-enacted include:
• Schedule 1, the Information Privacy Principles (IPPs);
• the requirement that public sector organisations generally must not do an act or engage in a practice that contravenes an IPP in respect of personal information they collect, hold, manage, use, disclose or transfer;
• the codes of practice provisions; and
• the information privacy complaints provisions.

A significant departure from the IP Act is the new provision (clause 20(3)) whereby an organisation is not required to comply with the IPPs in relation to an act or practice that is permitted under:

1.  a public interest determination (PID), or a temporary public interest determination (TPID); or
2. an approved information usage arrangement (IUA).

Similarly, under clause 16, for the purposes of this Bill, an act done or a practice engaged in by an organisation interferes with an individual’s privacy only if it is contrary to or inconsistent with an IPP or applicable code of practice, or a PID or TPID, or an IUA, or a current certificate issued pursuant to clause 55.

PIDs and TPIDs

 The Bill permits the Commissioner to make a written determination that where an act or practice of an organisation may or does breach:

• an IPP (other than IPP 4, Data Security, or IPP 6, Access and Correction); or
• an approved code of practice,

 it will not be regarded as an interference with privacy while the relevant determination is in force. TPIDs may be of up to 12 months’ duration.

Before making such a determination, the Commissioner must be satisfied that the public interest in the organisation doing the act or engaging in the practice substantially outweighs the public interest in its adhering to the relevant IPP or IPPs or applicable approved code of practice. This test is substantially the same as in s 72 of the Commonwealth Privacy Act. PIDs and TPIDs can be disallowed by either House of Parliament.

IUAs 

An IUA is an arrangement between permitted parties including organisations, agencies of the Commonwealth, another State or Territory, and private sector bodies that:

1. sets out acts or practices for handling personal information to be undertaken for one or more public purposes as defined; and
2. in respect of any of those acts or practices,
   i. modifies the application of or provides that the practice does not need to comply with an IPP (other than IPPs 4 and 6), or an approved code of practice; and/or
   ii. permits handling of personal information for the purposes of an ‘information handling provision’ – that is, a provision of an Act that permits handling of personal information as ‘authorised or required by law’ or by or under an Act, or in circumstances or for purposes required by law or by or under an Act.

The Bill details the information to be supplied to the Commissioner when an application for approval is submitted by the organisation that is the IUA’s designated ‘lead party’. Before an IUA may be approved by the relevant Minister or Ministers, the Commissioner must prepare a report and certify that the proposed IUA meets the same public interest test as for PIDs and TPIDs. The Commissioner may issue compliance notices in respect of IUAs, and they may be amended or revoked on specified grounds.

Certification

One additional new mechanism provides for the Commissioner to certify that a specified act or practice of an organisation is consistent with an IPP, an approved code of practice or an information handling provision. This should assist organisations where opinions may differ or there may otherwise be doubt as to the legality of a proposed action. The Commissioner’s certification may be reviewed by VCAT, but organisations who act in good faith on the basis of a certification will be protected while it is in force.

Protective data security

The protective data security provisions of Part 4 of the Bill apply, with specified exceptions, to public sector agencies, special bodies within the meaning of section 6 of the Public Administration Act 2004 and any bodies to which the Governor in Council declares them applicable.

‘Public sector data’ as defined is to be protected by a regime consisting of:

• the Victorian protective data security framework, developed by the Commissioner;
• protective data security standards (standards) (which may be either general or customised), to be issued by the Commissioner following approval by the Attorney-General and the Minister for Technology; and
• protective data security plans (plans) based on the security risk profile assessments (risk assessments) to be undertaken by relevant agencies themselves.

A public sector body Head is accountable under the Bill for compliance with protective data security standards in respect of the public sector data their entity collects, holds, manages, uses, discloses and transfers, and for the public sector data systems their entity keeps. Unlike in respect of Part 3, Information Privacy, the Bill does not provide for the Commissioner to have any direct authority over an entity’s contracted service providers (CSPs). Rather, the relevant public sector body Head must ensure that the entity’s CSPs comply with the applicable standards and plans. Plans based on the risk assessments are to be completed within two years after the publication of the standards. These plans must be provided to the Commissioner, and public sector body Heads must ensure that their plans are reviewed if circumstances change, or otherwise every two years.

What about law enforcement data security?

Together with the PDP Bill, the Crime Statistics Bill 2014 (CS Bill) was also passed by the Upper House this week. The security of law enforcement data is separately provided for in Part 5 of the Bill, which applies to Victoria Police and the Chief Statistician, together with the Chief Statistician’s employees or consultants, under section 6 of the CS Bill.  The Bill provides for the Commissioner to issue law enforcement data security standards (law enforcement data security standards), and it is intended that there be no gap in the application of the existing 2007 law enforcement data standards under the CLEDS Act and those provided for under the Bill. To the extent that there is any inconsistency between a law enforcement data security standard and a standard, the law enforcement data security standard prevails.

Part 6 of the Bill gives the Commissioner significant powers to require access to data, data systems and crime statistics data and to take copies or extracts of that data. If, in the course of conducting a compliance audit in respect of Parts 4 and 5 of the Bill, the Commissioner considers that any matter requires urgent attention, it may be referred to appropriate persons or bodies including the Ombudsman, the Director of Public Prosecutions and the Independent Broad-based Anti-corruption Commission (IBAC). The Commissioner may in any case disclose any information obtained in connection with the Commissioner’s functions to the IBAC if the information is relevant to functions or duties of the IBAC.

If you are in the Victorian Government and would like assistance to ensure that your agency’s privacy practices comply with the IP Act, or for advice concerning the imminent new Act, call:

Carolyn Doyle
 Managing Principal Solicitor
 carolyn.doyle@vgso.vic.gov.au
 9947 1403

Deidre Missingham
 Senior Solicitor
 deidre.missingham@vgso.vic.gov.au
 8684 0483

Privacy and Data Protection Bill 2014 Workshops for the Victorian  Public Sector 

VGSO has held a number of small-group workshops to assist clients to understand the scope of their obligations under the Bill.

Places are still available for the final workshop on Friday 29 August 2014 via www.vgso.vic.gov.au .

To request information about customised training or join the waitlist for future workshops please contact Carrie Anderson 9947 1446 or carrie.anderson@vgso.vic.gov.au.

Recent facelift for public sector governance

In the 10th year of its operation, the Public Administration Act 2004 (Act) has had a facelift.  On 1 April 2014, the Public Administration Amendment (Public Sector Improvement) Act 2014 (Amending Act) made a number of key changes to Victoria's public sector governance framework.

These changes are as follows:

1. the State Services Authority (SSA) has now been replaced by the Victorian Public Sector Commission (Commission);
2. subsidiaries of public entities are now classified as 'public entities' under the Act, bringing them within the accountability regime in Part 5 of the Act;
3. Department Heads now have a statutory obligation to oversee public entities; and
4. the Secretary of the Department of Premier and Cabinet has the power to issue administrative guidelines to public entities and their subsidiaries.

The Act also now requires the board of a public entity to assess its own performance (collectively) in addition to assessing the performance of individual board members.

1. The Commission

The Commission, like its predecessor the SSA, is tasked with improving Victoria's public sector administration and governance.

The Commission's objectives are to:

• strengthen the efficiency, effectiveness and capability of the public sector; and
• maintain and advocate for public sector professionalism and integrity.

In addition to carrying out the SSA's existing functions (such as issuing binding codes of conduct for employment standards), the Commission will conduct research and disseminate best practice information in relation to:

• public sector administration;
• governance;
• service delivery; and
• workforce management and development. 

The Commission also has a new advocacy function in respect of public sector professionalism and integrity.

2. Subsidiaries are now 'public entities' 

An important change is the expansion of what constitutes a 'public entity' to cover bodies that fall within the meaning of 'subsidiary' in the Corporations Act 2001 (Cth).  Whether a body is a 'subsidiary' of a public entity depends on the level of control the public entity has over the other body.

Subsidiaries are now regulated by Part 5 of the Act, which prescribes minimum governance standards and accountabilities for Victorian public entities and their boards, directors and chairpersons.  In addition, employees of subsidiaries are now subject to the Code of Conduct for Victorian Public Sector Employees.  These obligations are in addition to any obligations that a subsidiary may have under other Victorian Acts or the Corporations Act.

3. Department Heads to oversee public entities 

In a new development, Department Heads will have a statutory obligation to oversee, and provide guidance to, public entities (and their subsidiaries) within their Ministers' portfolios on matters relating to public administration and governance.

Department Heads will also be required to provide to the relevant Minister information about the performance of public entities that fall within that Minister's portfolio.  This information must, in turn, be provided to the Department Heads by the relevant public entity.

These changes provide an opportunity and an obligation on departments to engage proactively with their entities, including monitoring their performance.  The provisions are intended to enable public entities (and their subsidiaries that are public entities), Departments and Ministers to identify and manage governance risks.

4. Administrative guidelines

The Act now empowers the Secretary to the Department of Premier and Cabinet to issue administrative guidelines to public entities and public services bodies.  The purpose of such guidelines is to ensure that consistent standards of administration are maintained across the public sector.

The guidelines will not be binding, but if a public entity intends to operate inconsistently with them, then it must notify the Secretary and provide reasons.

If you are in the Victorian Government and would like more information about these changes, please contact:

Udara Jayasinghe
udara.jayasinghe@vgso.vic.gov.au

Carolyn Doyle
carloyn.doyle@vgso.vic.gov.au
9947 1403

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

Striking a balance for the thin blue line: The new torts regime for Victoria Police

The current law

The current law in Victoria founded in s 123 of the Police Regulation Act 1958 states that sworn police members are provided statutory immunity by the State of Victoria (the State) in civil claims where the conduct or omitted conduct is in the course of their duties, and the conduct is reasonably or necessarily done and they have acted in good faith.  Generally, this means that if this statutory immunity is provided and a plaintiff is successful in bringing a legal proceeding in tort against police members that liability and an award of damages is transferred and paid by the State.

The intent of the current law is to give those adversely affected by police behaviour in torts a right of recourse against the State for police members’ wrongs.  However, there are numerous pitfalls with the scheme. One of these is the lack of certainty for claimants, especially those who bring successful claims against individual police members but then struggle to recover damages and have no recourse to obtain money from the State because the members are deemed not to have acted reasonably, necessarily or in good faith.

The current regime has also given rise to a multitude of practical problems, such as:

• the requirement to engage separate legal representation to represent the interests of the State and police members named as defendants in a civil claim;
• significant legal expenses incurred in cases involving split legal representation; and
• difficulties in coordinating and managing claims involving split legal representation. 

The new law

A new legislative scheme under the Victoria Police Act 2013 ( the Act) will soon come into force to overcome the pitfalls with the current scheme. A key aim of the new scheme is to provide people with a level of certainty that the State will be liable if their legal claim against Victoria Police is successful.

Essentially, the new Act provides that a person can bring a police tort claim against the State where a police member or protective services officer (PSO) has allegedly committed a tort in the performance (or purported performance) of their duties.  A 'police tort claim' in the Act includes claims in negligence, assault and battery, false imprisonment and malicious prosecution, as well as detrimental action claims and certain wrongful death actions.

Under the Act, a person is not permitted to make a claim against a police member or PSO personally unless the State denies liability by arguing that an individual member or PSO engaged in 'serious and wilful misconduct'. This aims to protect police members and PSOs that have acted in good faith in the course of their duties from being personally named in court proceedings.

However, if a police member or PSO has engaged in particularly egregious conduct the State can raise the defence of 'serious and wilful misconduct' to defeat the claim. If the State raises this defence, the individual police members or PSOs will be required to be named as individual defendants to the proceeding and these individuals will be required to pay any damages ordered by the court if they are found liable in the proceeding and have also been found to have acted with 'serious and wilful misconduct'.

The meaning of 'serious and wilful misconduct'

The term 'serious and wilful misconduct' is not defined in the Act and has not yet been considered by Victorian courts in the context of policing.  However, guidance can be taken from the Victorian Government, which stated the following in the Second Reading Speech for the Act:

'this means that serious misconduct by police which is deliberate, which extends beyond recklessness, or culpable or gross negligence and which is done with a knowledge that risk of injury or loss may occur, may fall within the concept of serious and wilful misconduct'.

In other jurisdictions, examples of what courts have found to constitute 'serious and wilful misconduct' by police members include:

• falsely imprisoning a suspect, forcing a confession using threats and maliciously prosecuting the suspect based on this confession;
• lying to a police oversight body and not acting on disciplinary files;
• committing multiple acts of larceny; and 
• extorting $10,000 from an alleged child pornographer and making threats to otherwise pursue child pornography charges.

Under the Act, if the State succeeds with its defence of 'serious and wilful misconduct', the State has no right to seek costs against the person bringing the claim. However, the State must pay any damages or costs awarded to a claimant against a police member or PSO, if the Minister is satisfied that the successful claimant is unlikely to recover the money from the police member (or PSO) and has exhausted all avenues to recover the amount.

Time for change

What impact the new regime will have on claimants and Victoria Police remains to be seen. However, as legal representatives for Victoria Police, the VGSO welcomes these legislative changes which will hopefully provide certainty for successful claimants, less stress for members involved in civil litigation, less public monies spent on legal fees and  increased efficiency in the civil litigation process.

If you are in the Victorian Government and would like advice on the new torts regime for Victoria Police, please contact:

Louise Jarrett
louise.jarrett@vgso.vic.gov.au
9247 6798

Monika Pekevska
monika.pekevska@vgso.vic.gov.au
8684 0467

Plan Melbourne Overview: Your Quick Guide to the Final Plan Melbourne

Plan Melbourne is the new metropolitan planning strategy, setting out the Victorian Government's vision for Melbourne in 2050. 

The final version of Plan Melbourne was published in late May and now incorporates a planning scheme amendment and an updated ministerial direction to give Plan Melbourne statutory effect. Most notably, the final version incorporates the higher population projection of 7.7 million Melbourne residents in 2050, an increase of an additional 1.1 million people from the draft plan! This is a huge jump from Melbourne's current population of 4.3 million. 

Initiatives Already Actioned

Planning initiatives that have also already been actioned as part of the strategy include the establishment of the Metropolitan Planning Authority (the MPA), additions to the growth boundary, reformed zoning, new processes for planning permit applications, reforms to the growth areas infrastructure contributions, and reforms to developer contributions.

The Metropolitan Planning Authority (MPA) 

Plan Melbourne's planning objectives are now overseen by the newly created MPA. This government body supersedes the Growth Areas Authority to advise on, and overseeing the implementation of, Plan Melbourne. The MPA is designed to work closely with councils and government departments, while also supervising land use and infrastructure planning on state significant sites.

Plan Melbourne's Seven Planning Objectives

Plan Melbourne has seven planning objectives designed to respond to expected growth and demands of the city. These objectives are: 

1. Delivering Jobs and Investment: by creating a city structure that drives productivity, investment and job creation
2. Housing Choice and Affordability: by providing diverse housing options close to jobs and services
3. A More Connected Melbourne: through integrating and improving transport accessibility, infrastructure and options
4. Liveable Communities and Neighbours: by maintaining Melbourne's existing suburban layout and creating new peripheral suburbs
5. Environment and Water: improving water, energy and waste management systems and managing growth 
6. A State of Cities: creating numerous activity centres around metropolitan Melbourne
7. Delivering Better Governance: achieving clear results through better governance, planning, regulation and funding mechanisms

Plan Melbourne Summary

The seven planning objectives are supported by 41 directions which have not been changed in the final version. At a glance the directions culminate in the following overall scheme: 

Administration: 

• Plan Melbourne establishes five new metropolitan sub regions as the basis for planning coordination (Central, Northern, Eastern, Southern and Western); and
• the MPA, as discussed above, will oversee the implementation of Plan Melbourne. 

Activity Centres:

• There will be a strong focus on activity centres to accommodate growth, with less emphasis being placed upon developing areas of existing detached housing; however
• this said, 57% of the expected 1,046,000 new dwellings will be in established areas.  

Urban Renewal Precincts: 

• Plan Melbourne will encourage residential growth in previously announced urban renewal precincts such as Arden-Macaulay, E-Gate and Fishermans Bend; and
• Plan Melbourne will create numerous urban renewal precincts including Cremorne, Collingwood, North Richmond to Victoria Park, and also at Hampton, Jewell, Alphington and Essendon Stations.

Permanent Boundary:

• Plan Melbourne will develop a mechanism to lock in a permanent settlement boundary around Melbourne’s built-up metropolitan area;
• This permanent metropolitan urban boundary will replace the Urban Growth Boundary; and
• In determining the boundary, the MPA will take into consideration input from local governments, the November 2011 report by the Logical Inclusions Advisory Committee, Melbourne's values and topography, and boundaries formed by major infrastructure.

Decentralising Excess Growth into Regional Towns:

• Excess growth will be diverted into regional Victoria once growth areas in the metropolitan region are filled. These regional towns and urban centres include Bacchus Marsh, Ballan, Broadford, Kilmore and Wonthaggi. 

Infrastructure Projects: 

• Plan Melbourne will create an 'Integrated Economic Triangle' which expands the Central City. This triangle will connect the Hastings-Dandenong corridor with the Hume corridor to the north and the Wyndham-Geelong corridor to the south-west. This development utilises existing infrastructure, such as the Ports of Hastings and East West Link. The intention is to make Melbourne the largest commercial and residential centre in Australia by 2040;
• Plan Melbourne will implement the Metro 2 Project whereby the Epping and Hurtsbridge lines are rerouted via a tunnel to Melbourne University and Fishermans bend;
• There will be a continued expansion of the freeway network including the East-West link. The possibility of a North East Link, linking the Eastern Freeway to Greensborough, will also be investigated; and
• Plan Melbourne contemplates the possibility of building a new airport in Melbourne's outer south east. 

Code Assessment Approach:

• A "Code Assessment Approach" will be taken to multi unit development. This means that some developments, in areas such as the new Residential Growth Zone, may be exempt from notice and third party appeals if they meet certain enhanced "ResCode" standards. 

What does this mean for the VPS?

Plan Melbourne brings with it changes in the approach to Melbourne's future development and planning, the implementation of which may have significant impacts on decisions made by Departments and Local Governments. 

If you would like to know more about how Plan Melbourne may specifically impact on you or your department, the VGSO is ready to provide legal advice through our Land, Planning and Environment team:

Juliette Halliday

juliette.halliday@vgso.vic.gov.au

8684 0299

Eliza Bergin

eliza.bergin@vgso.vic.gov.au

8684 0267

Privacy Bill Goes Public

This week Victoria’s much anticipated Privacy and Data Protection Bill 2014 (PDP Bill) was introduced into Parliament, and second-read yesterday by the Attorney-General. The Bill reflects the Government’s 2012 commitment to strengthening the protection of personal and other information handled by Victorian government agencies.

This Bill repeals the Information Privacy Act 2000 (IP Act) and the Commissioner for Law Enforcement Data Security Act 1995 (CLEDS Act), and creates a new office of the Commissioner for Privacy and Data Protection (Commissioner) with broad powers of oversight and enforcement. The Bill does not affect the existing legislative arrangements whereby Commonwealth agencies and some private sector entities and individuals are subject to the Privacy Act 1988 (Cth) (Commonwealth Privacy Act).  Victoria’s health privacy regime under the Health Records Act 2001 and related legislation is also unaffected by the Bill.

Nevertheless, if the Bill is passed and assented to, it will usher in a new era with new emphases not only for privacy practitioners but also for public sector body Heads, who will need to pay close attention to their protective data security obligations.

Information Privacy – what’s different, what stays the same?

Provisions of the IP Act that are taken to be re-enacted include:

• Schedule 1, the Information Privacy Principles (IPPs);
• the requirement that public sector organisations generally must not do an act or engage in a practice that contravenes an IPP in respect of personal information they collect, hold, manage, use, disclose or transfer;
• the codes of practice provisions; and
• the information privacy complaints provisions.

A significant departure from the IP Act is the new provision (clause 20(3)) whereby an organisation is not required to comply with the IPPs in relation to an act or practice that is permitted under:

1. a public interest determination (PID), or a temporary public interest determination (TPID); or
2. an approved information usage arrangement (IUA).

Similarly, under clause 16, for the purposes of this Bill, an act done or a practice engaged in by an organisation interferes with an individual’s privacy only if it is contrary to or inconsistent with an IPP or applicable code of practice, or a PID or TPID, or an IUA, or a current certificate issued pursuant to clause 55.

PIDs and TPIDs

The Bill permits the Commissioner to make a written determination that where an act or practice of an organisation may or does breach:

• an IPP (other than IPP 4, Data Security, or IPP 6, Access and Correction); or
• an approved code of practice,

it will not be regarded as an interference with privacy while the relevant determination is in force. TPIDs may be of up to 12 months’ duration.

Before making such a determination, the Commissioner must be satisfied that the public interest in the organisation doing the act or engaging in the practice substantially outweighs the public interest in its adhering to the relevant IPP or IPPs or applicable approved code of practice. This test is substantially the same as in s 72 of the Commonwealth Privacy Act. PIDs and TPIDs can be disallowed by either House of Parliament.

IUAs 

An IUA is an arrangement between permitted parties including organisations, agencies of the Commonwealth, another State or Territory, and private sector bodies that:

1. sets out acts or practices for handling personal information to be undertaken for one or more public purposes as defined; and
2. in respect of any of those acts or practices,
   i. modifies the application of or provides that the practice does not need to comply with an IPP (other than IPPs 4 and 6), or an approved code of practice; and/or
   ii. permits handling of personal information for the purposes of an ‘information handling provision’ – that is, a provision of an Act that permits handling of personal information as ‘authorised or required by law’ or by or under an Act, or in circumstances or for purposes required by law or by or under an Act.

The Bill details the information to be supplied to the Commissioner when an application for approval is submitted by the organisation that is the IUA’s designated ‘lead party’. Before an IUA may be approved by the relevant Minister or Ministers, the Commissioner must prepare a report and certify that the proposed IUA meets the same public interest test as for PIDs and TPIDs. The Commissioner may issue compliance notices in respect of IUAs, and they may be amended or revoked on specified grounds.

Certification

One additional new mechanism provides for the Commissioner to certify that a specified act or practice of an organisation is consistent with an IPP, an approved code of practice or an information handling provision. This should assist organisations where opinions may differ or there may otherwise be doubt as to the legality of a proposed action. The Commissioner’s certification may be reviewed by VCAT, but organisations who act in good faith on the basis of a certification will be protected while it is in force.

Protective data security

The protective data security provisions of Part 4 of the Bill apply, with specified exceptions, to public sector agencies, special bodies within the meaning of section 6 of the Public Administration Act 2004 and any bodies to which the Governor in Council declares them applicable.

‘Public sector data’ as defined is to be protected by a regime consisting of:

• the Victorian protective data security framework, developed by the Commissioner;
• protective data security standards (standards) (which may be either general or customised), to be issued by the Commissioner following approval by the Attorney-General and the Minister for Technology; and
• protective data security plans (plans) based on the security risk profile assessments (risk assessments) to be undertaken by relevant agencies themselves.

A public sector body Head is accountable under the Bill for compliance with protective data security standards in respect of the public sector data their entity collects, holds, manages, uses, discloses and transfers, and for the public sector data systems their entity keeps. Unlike in respect of Part 3, Information Privacy, the Bill does not provide for the Commissioner to have any direct authority over an entity’s contracted service providers (CSPs). Rather, the relevant public sector body Head must ensure that the entity’s CSPs comply with the applicable standards and plans. Plans based on the risk assessments are to be completed within two years after the publication of the standards. These plans must be provided to the Commissioner, and public sector body Heads must ensure that their plans are reviewed if circumstances change, or otherwise every two years.

What about law enforcement data security?

Together with the Bill, the Crime Statistics Bill 2014 has also been introduced in to Parliament. The security of law enforcement data is separately provided for in Part 5 of the Bill, which applies to Victoria Police and the Chief Statistician, together with the Chief Statistician’s employees or consultants, under section 6 of the Crime Statistics Bill.  The Bill provides for the Commissioner to issue law enforcement data security standards (law enforcement data security standards), and it is intended that there be no gap in the application of the existing 2007 law enforcement data standards under the CLEDS Act and those provided for under the Bill. To the extent that there is any inconsistency between a law enforcement data security standard and a standard, the law enforcement data security standard prevails.

Part 6 of the Bill gives the Commissioner significant powers to require access to data, data systems and crime statistics data and to take copies or extracts of that data. If, in the course of conducting a compliance audit in respect of Parts 4 and 5 of the Bill, the Commissioner considers that any matter requires urgent attention, it may be referred to appropriate persons or bodies including the Ombudsman, the Director of Public Prosecutions and the Independent Broad-based Anti-corruption Commission (IBAC). The Commissioner may in any case disclose any information obtained in connection with the Commissioner’s functions to the IBAC if the information is relevant to functions or duties of the IBAC.

This Bill is yet to be debated in Parliament, and is sure to attract considerable public attention and comment over the coming weeks. Meanwhile, if you are in the Victorian Government and would like assistance to ensure that your agency’s privacy practices comply with the IP Act, call:

Carolyn Doyle
Managing Principal Solicitor
carolyn.doyle@vgso.vic.gov.au
9947 1403

Deidre Missingham
Senior Solicitor
deidre.missingham@vgso.vic.gov.au

 Forthcoming seminar for the Victorian Public Sector 

VGSO is delighted to announce that the speaker at our seminar on 22 July will be David Watts, who is currently the Acting Privacy Commissioner and CLEDS Commissioner. Also presenting will be Deidre Missingham who, on secondment from the VGSO to the Department of Justice, was the Senior Legal Policy Officer and principal instructor in relation to the new Bill.

To reserve a seat at this seminar, please contact VGSO via marketing.team@vgso.vic.gov.au.

 Privacy and Data Protection Bill 2014 Workshops for the Victorian  Public Sector 

VGSO is holding small-group workshops on the following dates to assist clients to understand the scope of their obligations under this new Bill.
• Friday 8 August
• Monday 11 August
• Friday 15 August
• Tuesday 19 August

To register your interest in these workshops please contact Carrie Anderson 9947 1446 or carrie.anderson@vgso.vic.gov.au.

Crime doesn’t pay: Northern Territory's tough stance on proceeds of crime gets tick of approval from High Court

The idea that offenders shouldn't be allowed to profit from their criminal behaviour isn't a new or a controversial one. Forcing an offender to forfeit gains derived from a criminal offence is accepted as part and parcel of criminal punishment, and all Australian governments have some form of legislation allowing them to confiscate the proceeds of crime from a convicted offender.

But while its common practice to confiscate property derived from offending, most states and territories (including Victoria) confine it to that. That is, the property the State can seize from the offender needs some sort of link with the offending. In Victoria, for example, the property must be 'tainted'.  It has to have been used or intended for use by the offender in connection with the offence, or must have been derived and/or realised from the offence.  Regardless of whether the property belongs to, or was used by, the offender or some other person, if it's found to be 'tainted', the State of Victoria can apply to confiscate it.

The Northern Territory however, took this one step further in relation to drug trafficking and enacted legislation that allows the Director of Public Prosecutions to apply to the NT Supreme Court to have a person officially declared a 'drug trafficker'.  Once labelled a 'drug trafficker', section 94(1) of the Criminal Property Forfeiture Act (NT) mandates that all of that individual's property must be forfeited to the Territory. There is no requirement that the property be connected to or derived from a particular offence or criminal activity generally, it applies to all property owned or effectively controlled by that person, and all property they may have given away, whether acquired before or after the legislation was introduced. Once a person's been tarred with the drug trafficker brush, if the NT DPP makes a forfeiture application in accordance with s 94(1), everything they have goes to the Territory.

The law was bound to be tested, and sure enough, the High Court recently had the opportunity to consider an appeal brought by NT resident, Reginald William Emmerson. Between August 2007 and September 2011 Mr Emmerson was convicted of a range of drug-related offences, including supply of 18.6646kg of cannabis. In 2012, the NT DPP successfully had Mr Emmerson declared a drug trafficker under s 36A of the Misuse of Drugs Act (NT). He was therefore obliged to surrender not only the $70,050 he obtained from the sale of cannabis, but also in excess of $850,000 worth of assets acquired through legitimate means. Mr Emmerson appealed to the NT Court of Appeal, where they set aside the declaration as unconstitutional, saying that the law was not compatible with the sort of powers governments are able to give courts, which are part of the wider court hierarchy in Australia and have to be independent from other branches of government. Some of you may know this as the Kable doctrine, which preserves the institutional integrity of the courts of the States and Territories, preventing them from being used as a mere tool of the executive government.

Next, the NT Attorney-General appealed to the High Court. On 10 April 2014, the High Court handed down a 6:1 majority judgment giving the NT forfeiture laws their tick of approval.  The High Court said that the NT is constitutionally permitted to give its Supreme Court the power to declare a convicted offender a 'drug trafficker' with the consequent loss of all his property: it's not incompatible with the Supreme Court's constitutional role, and in bad news for Mr Emmerson, it was not an acquisition of property otherwise than on just terms. As some of you will know, that is one of the few rights enshrined in our Constitution: s 51(xxxi).

To a modern eye, the NT law may seem harsh, but the High Court majority seemed to almost relish setting out its finding that there is nothing unconstitutional about the State seizing a convicted crim's worldly goods.

In a 'back to the future' approach, the High Court noted that forfeiture laws of this kind have a long history in English law (which, of course, provides the blueprint for Australia's legal system). Up until 1870, a convicted felon in England routinely forfeited all his property. The Court said at para [16], 'Blackstone noted the severe deterrent effect of [old English] forfeiture as a punishment for serious crime because it affected posterity as well as the individual offender.' In other words, the kids weren't inheriting dad's land and titles if he committed a serious crime. The history buffs among you will enjoy the short tour through the history of criminal forfeiture law contained in the majority judgment.

From a Victorian perspective the case is interesting because the High Court did not find that the NT law required the NT Supreme Court to act at the behest of the NT DPP or to give effect to government policy without following ordinary judicial processes. In other words, there is no 'Kable' limitation on the ability of Australian State governments to enact such laws.  

If you are in the Victorian Government and would like advice on constitutional limitations regarding courts in State legislation, please contact

Sky Mykyta
sky.mykyta@vgso.vic.gov.au
8684 0220

Rachel Amamoo 
rachel.amamoo@vgso.vic.gov.au
8684 0899

eServices Contract released!

Victorian government purchasers are required to engage suppliers of information and communication technology (ICT) products and services using a cloud based procurement platform called the eServices Register. The eServices Register provides a streamlined process for engaging suppliers of eServices.  It is mandatory to use for inner budget agencies and administrative offices as defined in the Public Administration Act 2004.

The eServices Contract was released on 8 April 2014,  it replaces an interim eServices Contract that was previously in place.  The contract was finalised after extensive consultation with various government and industry stakeholders.  The release of the contract means that government purchasers are able to approach suppliers for each procurement using a known set of terms. 

The contract is mandatory for use with all engagements under the eServices Register for  new procurements.  The interim contract can still be used for projects that were 'in flight'  at the date of the release of the final contract. 

What types of eServices are covered by the contract?

There are various categories of eServices that are covered by the eServices Contract.  These include:

• Professional Services - that is, ICT consultancy services;
• Cloud Services -  including Software as a Service (SaaS) or Infrastructure as a Service (IaaS) and related services;
• Implementation Services - the implementation of new software applications.  It does not cover the implementation of commercial off-the-shelf software;
• Development Services - the development of new software applications.  This does not include customising commercial off-the-shelf software;
• Hosting Services - the hosting of an agency's software application or website on a supplier's server;
• Managed Services - the management by a supplier of an agency's software application or function;
• Maintenance and Support Services - maintenance and support services in relation to software; and
• Hardware Services - maintenance and support services in relation to ICT hardware.  

The eServices Contract should not be used to purchase software licences (where there will be no associated eServices) or hardware.

Structure of Contract

The eServices Contract consists of the following documents (in descending order of priority):

•  the eServices Terms;
• the Contract Variables;
• the Purchaser's Request; and
• the Supplier's Response.

Each of these documents is explained below:

The eServices Terms

The eServices Terms are the standard terms and conditions for the eServices Contract.  The parties will not be able to negotiate or amend these terms.

The eServices Terms states that the Contract Variables, the Purchaser's Request and the Supplier's Response all form part of the contract.

The Contract Variables

The Contract Variables is the only document that can be negotiated by the parties.  It has been structured to enable the parties to specify:

• the particular categories of sServices that apply under the contract; and
• the specific arrangements that apply under the contract.

If the Contract Variables specify that specific categories of eServices apply, corresponding clauses in the eServices terms are adopted.

The Purchaser's Request

The Purchaser's Request is the document that invites suppliers to submit a bid for the services.  It is made available to suppliers via the eServices Register. 

It should specify, amongst other things, the scope of the services to be provided and the criteria that will be used to evaluate bids by the supplier. 

Common examples of a Purchaser's Request include:

• Request for Tender (RFT);
• Request for Quotation (RFQ); and
• Request for Proposal (RFP). 

The Supplier's Response

The Supplier's Response is the document that comprises the bid that has been submitted by the preferred supplier on the eServices Register in response to the Purchaser's Request.  This document would normally provide a description of the approach that has been proposed by the supplier in delivering the project.

Further Information

If you would like to access the eServices Contract, it can be found on the eServices Register Gateway.

To discuss the eServices Contract or the eServices Register generally, please contact:

Isabel Parsons

9947 1405

isabel.parsons@vgso.vic.gov.au

Sam Funnell

9947 1407

sam.funnell@vgso.vic.gov.au

Tina Lee

9947 1426

tina.lee@vgso.vic.gov.au

Nick Busietta

9947 1402

nick.busietta@vgso.vic.gov.au