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 the State Services Authority (SSA) has now been replaced by the Victorian Public Sector Commission (Commission);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.