Wednesday, 21 May 2014

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
8684 0220

Rachel Amamoo
8684 0899

Friday, 16 May 2014

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:

9947 1405

9947 1407

9947 1426

9947 1402

Thursday, 8 May 2014

New procedure for seeking suppression orders in the Coroners Court

You might remember an earlier blog regarding The Open Courts Act 2013 (the Act) which came into operation on 1 December 2013.  To refresh your memory, the purpose of the Act is to consolidate and reform statutory powers of Victorian courts and tribunals in relation to granting suppression orders and closed-court orders.  These new measures aim to strengthen and promote the principles of open justice and free communication of information by creating a presumption in favour of disclosure of information.  This blog aims to help you understand exactly what this means for the Coroners Court which must now have regard to this presumption of disclosure in determining whether to make a suppression order.

Powers of Coroners Court to grant suppression
The Act sets out the test for the Coroners Court to grant a proceeding suppression order, which is an order prohibiting or restricting the disclosure of a report of the whole or any part of a proceeding or any information derived from a proceeding.

The Act preserves the power of the Coroners Court to make a proceeding suppression order in an investigation or inquest if a Coroner reasonably believes that a suppression order is necessary because disclosure would be likely to prejudice the fair trial of a person or be contrary to the public interest.

However, the Act now provides that the Coroners Court cannot grant a suppression order, unless satisfied by evidence, or sufficiently credible information, that the grounds for making the suppression order are established.  The Coroners Court  may also make interim proceeding suppression orders.  However, a Coroner is required to address the substantive application for a suppression order 'as a matter of urgency'. An interim suppression order may be made without the Coroner determining the merit of the grounds of the application.

The Coroners Court can make a proceeding suppression order on its own motion or by application by an interested party, or any other person considered by the Coroners Court to have sufficient interest in the order being made.  An interested party seeking a suppression order over evidence must file a Form 46 - Notice of Application for Suppression Order (the Notice).  The Notice can be accessed on the Coroners Court website (  The Notice must specify the details of documents, materials, names or other information and the extent to which suppression is sought, and outline the factual and legal basis to support grounds for the application.  The applicant must give three business days' notice to the Coroners Court and to other interested parties of the making of the application.

On receiving a Notice, the Coroners Court must take reasonable steps to ensure that any relevant news media organisations are notified of the application for suppression.  The information contained in the Notice itself is not subject to suppression and the Coroners Court will provide a copy of the Notice to news media organisations and interested parties.  Various persons, including news media organisations and other interested parties, may appear and make submissions at the hearing of the application for suppression.  This process is intended to promote the principles of open justice, in that news media organisations may adopt the role of contradictor and in turn, provide the Coroners Court with the benefit of submissions in favour of the principle of open justice and disclosure of information.

These notice requirements do not apply to a proceeding suppression order on a Coroner's own motion.

At times, circumstances may dictate that an interested party is not aware of the need for a suppression order with sufficient time to satisfy the notice requirements.  For example, this may occur where particular documents are requested during the course of an inquest, or in the course of oral evidence given by a witness.  In such circumstances, the Coroners Court may still hear the application, but only if it is satisfied that there was a good reason for the notice requirements not being met, or it is in the interests of justice that the Coroners Court hear the application without notice.

Duration of suppression orders
The Act imposes an obligation on the Coroners Court to ensure that a suppression order operates no longer than is reasonably necessary to achieve the purpose for which it is made.  A Coroner must determine the period for which the suppression order will operate and specify that period in the order itself.  The order may be made for a fixed period, or until the occurrence of a specified future event.  For example, in the case of a suppression order which prohibits disclosure of an individual's personal information, a specified future event
may be that person's death.

If you are in the Victorian Government and would like more information on this topic please contact:

Belinda Trevean
Managing Principal Solicitor
t 03 8684 0415

Paula Cumbo
Principal Solicitor
t 8684 0465

Jessica Tribe
t 03 8684 0279

Rose Singleton
t 8684 0428