Friday 28 February 2014

The VGSO’s guide to sexting

An employer in a Federal Court proceeding was recently forced to defend an attempt by a dismissed employee to have a number of private text messages - allegedly left on a work-issued mobile phone after it was issued to another employee - admitted into evidence.

Shea v TruEnergy Services Pty Ltd concerned an employee who had been dismissed by her employer, TruEnergy, on the grounds that her position had become redundant. The employee brought proceedings alleging that she had actually been dismissed for exercising a workplace right by making a number of complaints, and that her dismissal therefore constituted adverse action within the meaning of the Fair Work Act 2009 (Cth).

One of the employee's allegations during the course of the trial was that a culture of lewdness and sexual harassment prevailed in the workplace and that it was condoned by the managing director. She sought to have admitted into evidence a number of mobile phone text messages, apparently between the managing director and a former general counsel at TruEnergy with whom he was allegedly having an affair. Their content was, it was alleged, of a sexually explicit nature, and the employee submitted that this established the managing director's propensity to use lewd and sexualised language in the workplace.

The employee obtained the text messages via another former employee of TruEnergy who allegedly had been given a work-issued mobile phone that had not been cleared of its messages. That former employee still had possession of the phone and had failed to return it following the cessation of her employment.

TruEnergy sought to resist the admission of the text messages as evidence on the grounds that they were not relevant to any issue in the dispute, and in any event should be excluded as they were improperly or illegally obtained.

Justice Dodds-Streeton of the Federal Court agreed with TruEnergy and refused the admission of the evidence, finding that not only were the text messages 'intensely personal' communications, they were not relevant to any issue in the litigation. Her Honour also rejected the submission that, even if their contents could be described as 'lewd', it did not follow that the managing director would use such language in the workplace. Further, the messages were inadmissible due to the irregular or improper manner in which the employee had obtained this confidential material.

Although the contents of the mobile phone in this instance was held not to be admissible, this case serves as an important reminder to departments and agencies to ensure that employer-issued IT hardware, such as mobile phones and laptops, is properly wiped prior to being issued to a new employee, and that all equipment issued to an employee is recovered and retained when that employee leaves.

The case is also a reminder that, when it comes to evidence, relevance is still king. Even though litigators today have access to so much more information on phones, computers and social media, it's only going to be admitted into evidence if it is relevant to issues that the court or tribunal have to decide. In this sense, this case is just an example of old principles being applied to new (and fantastically salacious) facts.

If you are in the Victorian Government and you are thinking about sexting from a work phone, how about you first seek advice from:

Katie Miller
Managing Principal Solicitor
t 8684 0460

Retta Berryman
Trainee Solicitor
t 8684 0468


Wednesday 19 February 2014

Victoria leads the way in regulatory impact analysis (but there is room for improvement!)

A recent parliamentary committee inquiry into the Regulatory Impact Statement (RIS) process has found that the Victorian system of regulatory impact analysis is highly regarded across Australia and on par with leading practice internationally.

Regulatory impact analysis is the process by which certain regulation proposed to be introduced through subordinate legislation is subjected to scrutiny. It involves an assessment of whether the regulation is necessary, and whether it is in the least burdensome and most cost-effective form possible. The rationale behind the process is to encourage the testing of alternative regulatory approaches and to require consultation with the public and stakeholders to make sure all relevant information is obtained to assist good decision making.

The types of subordinate legislation that are subject to regulatory impact analysis include regulations, statutory rules, court rules, orders in council and codes of practice. The threshold set by the Subordinate Legislation Act 1994 for when a RIS needs to be prepared is that the piece of subordinate legislation is likely to impose 'a significant economic or social burden on a sector of the public.'

A similar scrutiny process - a business impact assessment (BIA) - now also applies to certain primary legislation. The threshold for when a BIA is required is that the legislative proposal (ie a Bill) has 'potentially significant effects for business and/or competition in Victoria.' BIAs are based on the same methodology as the RIS process but are not governed by legislation; rather, the content and processes of BIAs are agreed by Cabinet and set out in the Victorian Guide to Regulation.

The Inquiry into the Regulatory Impact Statement Process (Inquiry) conducted by the Environment and Planning Legislation Committee (Committee) concluded that although there was some evidence that the RIS process is perceived to be overly burdensome, time consuming and costly, the benefits of conducting regulatory impact analysis outweigh the costs. In addition, the weight of evidence put to the Committee indicated that the Victorian system is working well and the rigour and standard of analysis of RISs produced in Victoria is higher than in other jurisdictions.

However the Inquiry did find that there are still ways in which the system can be made more effective and the Committee made a number of recommendations as to how the RIS process in Victoria can be improved. Four key areas flagged for improvement are outlined below.

Making the RIS process more efficient by increasing departmental involvement

The Committee found that Victorian departments are engaging consultants to prepare RISs much more frequently than in other jurisdictions. In 2012-13, 77 percent of Victorian RISs and BIAs were prepared either wholly or partially by consultants. Evidence before the Inquiry suggested widespread and consistent use of consultants can limit the accrual of skills, expertise and experience within the department or agency. It also risks distancing the regulatory process from the policy-making process, which is contrary to the rationale behind the RIS system.

The Committee concluded that consultants have an important role in regulatory impact analysis in terms of advising departments on technical matters relating the regulatory proposal. However, it recommended that departments should endeavour to develop their own in-house skills with the aim of building the capacity of the department to undertake the bulk of the non-technical aspects of regulatory impact analysis. To help facilitate this, the Committee also recommended a number of improvements to Victorian Guide to Regulation to better support departments and local councils.

Bringing the BIA process into line with the RIS process

Although many of the steps involved in the BIA process are similar to those in the RIS process, the 'threshold' test for a BIA is different and significantly narrower than for a RIS. To make the BIA process more effective, the Committee recommended that the threshold test for when a BIA is required be changed to bring it into line with the RIS threshold, and that the term 'business impact assessment' be replaced with the more accurate term 'legislative impact assessment.'

Independent quality assessment and compliance monitoring

At present, the oversight body for the regulatory impact analysis system is the Victorian Competition and Efficiency Commission (VCEC) which is attached to the Department of Treasury and Finance. The VCEC provides the final independent assessment of whether RISs and BIAs are compliant with their requirements.

The Committee found that leading practice suggests oversight bodies with a greater degree of independence are likely to operate with more objectivity and transparency in implementing regulatory impact analysis requirements. Accordingly, the Committee made two recommendations: First, that the Victorian Auditor-General conduct bi-annual evaluations of the VCEC's assessments of RISs and BIAs; and second, that the VCEC be established as a fully independent body reporting to the Parliament.

Recommended change to the planning system

Planning scheme amendments are currently exempt from the RIS process, largely because a requirement to prepare an RIS for these amendments would create duplication of existing assessment and consultation requirements under the Planning and Environment Act 1987 and potentially increase unnecessary delay.

However, the Committee found that the rigorous cost-benefit analysis required by the RIS process has the potential to improve policy making in all areas, including in the planning system. As such, the Committee recommended that a requirement for a cost-benefit analysis be introduced for any significant changes to a planning scheme.

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

Retta Berryman
Trainee Lawyer
t 8684 0468

Wednesday 12 February 2014

High Court decision affecting Victorian hunting and fishing laws

Native title cases can make your head hurt. But it is always interesting to see the highest court in the land grapple with the complex interplay between statutory regimes and native title rights.

Karpany v Dietman is no exception. It considered whether the native title right to fish provided a defence to a prosecution under an SA law prohibiting fishing, and also whether the native title right was extinguished by a previous SA fishing law.

The decision is an important one for any Victorian government officers that regulate hunting, gathering or fishing, as it increases the likelihood of native title operating as a defence in prosecutions of this type.

The facts

Owen and Daniel Karpany, two members of the Narrunga People (an Aboriginal group in South Australia), were charged on 12 December 2009 for possessing undersized abalone.

They argued s 211 of the Native Title Act 1993 (Cth) as a defence. Section 211 provides a defence to federal and State prohibitions on hunting, fishing, gathering and 'cultural or spiritual' activities where a person has a native title right to carry on the activity, so long as:
  • it is for a domestic or communal purpose, not a commercial one;
  • it does not exceed the scope of the native title rights; and
  • the prohibition applies other than in accordance with a 'licence, permit or other instrument'. The Karpanys argued that the Minister's ability to grant exemptions from this prohibition met this requirement.
The two issues for the High Court were:

The decision

The High Court found for the Karpanys on both issues.

First, it held that the native title right to fish had not been extinguished by the 1971 Act because the 1971 Act regulated fishing, rather than replacing all existing fishing rights with statutory ones. The Court noted that the 1971 Act's prohibitions were subject to exceptions and exemptions, including ones facilitating the exercise of the native title right to fish. As the 1971 Act did not generally prohibit the exercise of native title fishing rights, it did not extinguish those rights.

Secondly, the Court agreed that the statutory power of the Minister to grant exemptions from the current fishing prohibition was a 'licence, permit or other instrument' for the purpose of s 211(1)(b). The Court said that those words accommodated 'a large range of possible statutory regimes', and were apt to cover 'any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described in s 211(3)' (that is, hunting, fishing and gathering).

How this decision affects the Victorian government

There are two ways this decision could affect Victorian government officers.

First, it is more likely that s 211 of the Native Title Act 1993 (Cth) could be raised as a defence to a hunting or fishing prosecution. When its preconditions are met, s 211 trumps State restrictions on these activities, allowing native title rights to be exercised for personal, domestic, non-commercial or communal needs. This is because s 109 of the Constitution invalidates any State laws that are inconsistent with a Commonwealth law (such as s 211).

Section 211 will apply if the State restriction applies other than in accordance with a 'licence, permit or other instrument'. For example, in Victoria, Part 8 of the Fisheries Regulations 2009 (Vic) applies various restrictions to the taking of abalone. But where a restriction is subject to an exemption based on a licence, the restriction could be removed by s 211. The broad approach to interpreting 'licence, permit or other instrument' in Karpany may mean that the point is more whether there is an exemption power of some kind, even if it is not usually thought of as a licence or permit.

It is important to note that the State law relaxed by s 211 was an offence provision which applied to persons who did not hold a licence. The effect was that native title holders could take undersized abalone which no one else could, unless the Minister actually exempted them from the operation of the legislation. The existence of that exemption power (not its past or likely use) was enough to trigger s 211.

Moreover, Karpany is another instance that shows native title does not need to have been formally recognised to argue the s 211 defence. Having said that, the prosecution did not argue that the Karpanys did not have the necessary native title fishing rights.

Secondly, the decision shows the High Court will not be easily persuaded that a State statutory licensing regime extinguishes native title rights to take resources. Native title rights to fish for non-commercial purposes have been recognised to exist over parts of Victoria.

In short, Victorian government officers need to keep in mind that native title rights to fish or hunt may form a defence to a prosecution if it was done for domestic or communal purposes. Seek legal advice on your specific legal regime if you want to know whether it meets the particular requirements of s 211 of the Native Title Act 1993 (Cth).

If you are in the Victorian Government and require legal advice on native title rights or this decision, please contact:

Mary Scalzo
Managing Principal Solicitor
t 9947 1419

James Stephens
Principal Solicitor
t 9947 1422

Wednesday 5 February 2014

Water Bill Exposure Draft: what changes will flow?

Following a comprehensive review of Victorian water law, a Water Bill Exposure Draft was released to the public in December 2013.

The Exposure Draft proposes to bring the two current Acts that govern water use and management in Victoria - the Water Act 1989 and the Water Industry Act 1994 - into a single streamlined Water Act. In addition to ironing out issues created by confusing, duplicated and obsolete provisions in the current legislation, the Exposure Draft also seeks to modernise water management practices and implement Government policies including the Living Victoria policy and the forthcoming Melbourne's Water Future strategy.

Although many features of the current legislative regime will remain the same, the Exposure Draft proposes a new, more logical structure that should make it easier to find relevant information. It seeks to streamline and consolidate provisions which are spread across the current Acts, both of which have been subject to many water reform amendments since their commencement. A table that sets out where the equivalent provisions in the current Acts can be located in the new Exposure Draft is available here. Some current provisions - such as those governing the power to impose water restrictions - will be dealt with by Regulation.

The Exposure Draft also proposes a number of substantive changes aimed at promoting 'whole of water cycle' management and to bring Victorian water law into line with contemporary water and legislative practice.  Four of the most substantive changes are outlined below.

New 'core considerations' for decision makers

Under the current legislation, the obligations on decision makers regarding matters that must be taken into account are difficult to navigate, inconsistent and repetitive. The Exposure Draft sets out a new single set of 'core considerations' at the front of the Bill which the Minister - or water corporations and catchment authorities acting on the Minister's behalf - will be required to take into account before making certain decisions, including considering applications for new licences and water shares.

The proposed core considerations include the impact a decision will have on other water users, on environmental water (and water that may not meet the definition of 'environmental water' but which has multiple uses including preserving environmental values and the health of water ecosystems); and on the protection of the environment generally. The concept of 'environmental water reserve' has been replaced by the broader concept 'environmental water'. This is intended to better capture the concept of water in life cycle terms including: water held under an entitlement or right for the environment, and water committed under other entitlements for environmental purposes.

Replacing the current piecemeal approach with a standardised set of core considerations that will govern the making of many decisions relating to water use and management should enable greater consistency and efficiency in decision making as well as ensuring environmental protection is a priority.

Water Resource Management Order

A new concept called the Water Resource Management Order (WRMO) is proposed to describe all water management arrangements for a particular area. This will act as an umbrella under which all entitlements in the particular area will sit. That means that bulk entitlements, water shares, take and use licenses as well as statutory rights (eg, for domestic and stock use) will be located in one place and easier to understand. The current mix of regulatory instruments have been described as complex and inconsistent. The WRMO proposes to simplify water system management rules. The WRMO will include cap and trade rules that determine the maximum volume of water that can be allocated within a particular area or water system.

Statutory rights for local councils to water in stormwater drains

At common law, the position in relation to property rights that attach to the water collected in stormwater pipes and drains is complex and difficult to understand. The Exposure Draft proposes to extinguish these common law rights and confer new express rights for local councils to manage water in their stormwater works.

Under the Exposure Draft, all rights to water in local council and water corporation stormwater pipes and drains will be vested in the Crown, with the rights to take and use that water expressly conferred on local councils and water corporations. Having clear rights to use and control this water is aimed at encouraging investment in local projects to harvest and make use of stormwater that is currently going to waste.

Changes to the enforcement regime for water-related offences

The Exposure Draft also proposes a significant overhaul of the compliance and enforcement regime currently in place under the Water Act 1989 for water-related offences, including providing clearer explanations of what conduct will constitute an offence, and increasing penalties to improve deterrence.

The changes comprise multiple enforcement options that are more targeted to the nature of the particular offence, and provide alternatives to costly and time consuming court proceedings such as the use of penalty infringement notices.

The provision relating to liability for flows of water (currently s 16, new clause 671) has been clarified in a number of ways. The flows of water for which an owner of land may be held liable includes water from a tank, sewer, drain, pipe, fitting or appliance of any kind on the land.

The Exposure Draft also sets out new requirements for the valid appointment of appropriately trained Authorised Water Officers who will be responsible for administering the compliance and enforcement regime.

The Exposure Draft is open for public comment until 14 February 2014. Once finalised, it is intended that the new Water Bill will be introduced to Parliament during 2014 with a view to a new Water Act commencing on 1 January 2016.

For more information, please contact:

Eliza Bergin
Principal Solicitor
t 8684 0267