Thursday 17 December 2015

A civil penalty is not a criminal sentence by any other name

Regulators' speaking roles in civil penalty determinations restored by the High Court

Last week, the High Court delivered an important judgment for regulators in civil penalty proceedings.  In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU and Director, Fair Work Building Industry Inspectorate, the High Court unanimously held that Courts are not precluded from considering and, if appropriate, imposing civil penalties that are agreed between the parties. 

What's new about that?  Isn't that the way it always works?

Not exactly.  In May this year, the Full Court of the Federal Court significantly constrained the ability of Courts (and potentially Tribunals) to consider and give effect to agreements between regulators and other parties about the suitable penalty for a regulatory breach.  

As many of our State clients would know (and as the High Court has now said is sound practice) in a multitude of regulatory proceedings - from breaches of employment awards to director’s duties – regulators as diverse as the Fair Work Ombudsman to ASIC had often reached agreement with an accused on a form of civil penalty.  That agreement was then proposed to the courts who, if it was considered appropriate, imposed the agreed penalty.  Trial times were shortened and, among other things, the regulators’ resources could be put to other uses, such as monitoring compliance. 

With the Full Court’s decision, however, this longstanding practice was held to be unlawful.  For the Full Court, the task of ordering a civil penalty was very much like imposing a criminal sentence.  As a result, it applied the principle in Barbaro, which prohibits a criminal prosecutor from making submissions as to the appropriate sentencing range or ultimate sentencing outcome, to the civil penalty context.  At the heart of the Court's concern was the idea that by agreeing on a penalty, parties may 'bind the Court' to make their preferred order and undermine its role in determining an appropriate penalty. 

Since May, then, real questions have existed in many jurisdictions about the lawfulness of regulators’ speaking roles in any civil penalty determination.  Were regulators to be like prosecutors – silent and dispassionate? Or, alternatively -  invested, knowledgeable, agencies with a range of unlawful conduct expertly in their sights?  

High Court Decision

On appeal, the High Court determined unanimously that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties.   While the High Court noted that there was some similarity between the task of imposing civil and criminal penalties – the tasks are, it said, fundamentally of a different character.  The Court rejected any attempt to apply Barbaro to civil penalty proceedings.  Moreover, the Court held that a court is not bound by the penalty suggested by the parties, reiterating that it must ask 'whether their proposal can be accepted as fixing an appropriate amount'.  The judgments also spend considerable time endorsing the traditional model of regulator agreement and regulators' speaking role when proposing the terms and quantum of a penalty, stating:

  • there is important public policy involved in promoting predictability of outcome in civil proceedings;
  • the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcomes for regulators and wrongdoers; and
  • it must be accepted that judges will do their duty, as they have been sworn to do, and reject any agreed penalty submission if not satisfied that what is proposed is appropriate.
For advice on regulatory proceedings and civil penalties, now the silence has been lifted, contact:

Managing Principal Solicitor
8684 0414

Managing Principal Solicitor
8684 0450

Tuesday 15 December 2015

Plan Melbourne 2016

What are the issues of relevance to me?

The Victorian Government has released a discussion paper on the refresh of Plan Melbourne.

Plan Melbourne 2016 will be published in the first half of next year, and will build on Plan Melbourne 2014.  On 18 June 2014, we reported on the adoption of Plan Melbourne which was subsequently incorporated into the Victoria Planning Provisions.  The Ministerial Advisory Committee that advised on Plan Melbourne has been reappointed to advise on the refresh.

The discussion paper reflects the Government's commitments and priorities and canvasses options for changes in planning policy and strategy.  It covers a range of key issues including housing and investment.  Of particular relevance to our clients is the discussion of improved environmental sustainability and planning for transport.

Environmental sustainability and climate change

The discussion paper emphasises sustainability as a key concept in the Plan Melbourne refresh.  Driving this part of the commentary are the CSIRO and Bureau of Meteorology[1] projections of increases in temperature and changing patterns of rainfall and more extreme weather events such as drought and bushfires, heatwaves, flooding and increased coastal inundation. 

The discussion paper suggests that a 'more sustainable polycentric city model' is preferable to contain urban growth within a permanent urban growth boundary.  It is also suggested that Plan Melbourne 2016 might support the 'greening' of the city, by structuring planning, local policies and overlays to promote more vegetation cover and cool hard surfaces.  Clarification of the limits to the 20-minute neighbourhood is also expected in Plan Melbourne 2016.

Once finalised, Plan Melbourne 2016 will sit alongside other key components of current and existing legislation, policy and plans in Victoria on the topic of climate change and environmental sustainability, many of which are under review:

·         Climate Change Act 2010, under review by an Independent Panel;
·         Climate Change Adaptation Plan, for which consultation is planned in early 2016;
·         Victorian Energy Efficiency Target Act 2007, recently amended;
·         Renewable Energy Action Plan, currently being developed;
·         Energy Efficiency and Productivity Strategy, to be released later this year;
·         revised Draft Victorian Floodplain Management Strategy, released in June 2015 and expected to be finalised by the end of 2015;
·         State Water Plan, to be released in 2016.

Transport Planning

Plan Melbourne 2016 will reflect the Government's transport priorities and commitments, including:

·         the Melbourne Metro Rail Project;
·         the removal of 50 metropolitan level crossings;
·         the Mernda Rail Extension; and
·         commitments to expand the bus network.

The discussion paper recognises that potential road initiatives such as connecting the Eastern Freeway and the Metropolitan Ring Road require further assessment.

Although Plan Melbourne 2014 committed to a second container port at Hastings, Plan Melbourne 2016 will leave open different options for the most appropriate site for a second container port, including locations at Bay West and Hastings.  Infrastructure Victoria will independently advise the government on this.

What are the next steps?

We will continue to update clients on this process.  Comments and submissions on the refresh of Plan Melbourne are invited until Friday 18 December 2015.  Please contact us if you would like assistance with preparing your submission.

Managing Principal Solicitor
8684 0402

Principal Solicitor
8684 0267

[1] Bureau of Meteorology (2014) 'State of the Climate 2014'.

Thursday 26 November 2015

Lease vs Licence - What difference does it make? (Part 2)

Based on the public and personal feedback, our blog topic from September 2015 on the differences between leases and licences certainly seems to have been quite topical.

One reader requested that we provide some more examples for Government practitioners of circumstances where a lease or a licence might be appropriate.  Of course, the particular circumstances of the transaction will determine the form of tenure that is appropriate for the intended use of premises.  With that in mind, we provide some further examples of where a lease or licence might be appropriate for the intended use of the premises.

Lease examples

In short, a lease will be appropriate where the tenant requires exclusive use of land and/or premises for the permitted use.  Where government is the tenant, such uses include delivery of long term projects and services, for example prisons, hospitals and police and court house facilities. 

Where government is the landlord, such uses would include:
  • commercial or trading purposes where the operator will undertake a fitout and install furniture, computers, etc;
  • sensitive and important community services such as the provision of child care facilities; and
  • provision of education services, such as by a TAFE institute.

Licence examples

The granting of exclusive possession and other leasehold rights is not necessary for all land uses.  Common examples of where a licence of land may be appropriate include:
  • installation of power line infrastructure by an electricity generation company;
  • special event licences for community, cultural or sporting events;
  • site investigations for development proposals;
  • construction licences or licences for the installation of services and utility infrastructure; and
  • cutting or taking away fallen or felled trees for domestic use as firewood.

If you would like further advice regarding land use arrangements and other property issues, the VGSO Property Team is well placed to assist you.  Please contact:

Margaret Marotti
Managing Principal Solicitor
9947 1410

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Elizabeth Wortley
Senior Solicitor
9947 1433

Wednesday 18 November 2015

To publish or not to publish - a refresher on sub judice contempt

Recently there has been a lot of inquiries in relation to what can be published about upcoming court matters.

On occasion, it is permissible to publish material about upcoming court cases, but commonly, publishing such material may result in the publisher committing the common law offence of sub-judice contempt.

What is sub judice contempt?

Sub judice contempt is the common law offence of publishing material which has a tendency to interfere with the administration of justice while proceedings are sub judice; that is, ‘under a judge’.

The rationale for the offence is to avoid the possibility of  a ‘trial by media’ by prohibiting the publication of material which might either prejudice issues at stake in criminal proceedings, or which might influence or place pressure on persons involved in the proceedings, including jurors, witnesses or potential witnesses.

In order to prove a charge of sub judice contempt, it must be proven to the criminal standard that:
a) material was published;
b) the publication of that material happened while the proceedings were sub judice; and
c) the publication has the tendency to interfere with the administration of justice in the proceedings that are before the judge.
For more details about this common law offence and how to avoid it, read on here.

If you are a Victorian government department or agency and need to know more about sub judice contempt you can contact:

Louise Jarrett
Managing Principal Solicitor
(03) 9247 6798

Michael Stagg
Senior Solicitor 
(03) 9247 6496

Friday 6 November 2015

Making sense of 'nuisance': Fertility Control Clinic v Melbourne City Council

The picketing of abortion clinics has been a hot button issue for many years in the US. Those protests are often portrayed as a 'clash' of rights between religious freedom and peaceful assembly on one hand, and a woman's right to privacy and control of her body on the other.

However, the recent Supreme Court decision in Fertility Control Clinic v Melbourne City Council shows that the extent to which rights are protected will often turn on the nature and scope of a decision maker's power under legislation.

The case also demonstrates that even though a decision maker may make a legal error, that doesn't necessarily give rise to a legal remedy.

A nuisance?

The Fertility Control Clinic provides pregnancy termination (among other services) at a private clinic in East Melbourne. For at least a decade, members of a religious group called the 'Helpers of God's Precious Infants' (or 'HoGPI', for short) have gathered outside.

The Clinic contacted Melbourne City Council claiming that HoGPI had engaged in nuisance by, among other things, harassing women as they entered the clinic, trying to block access to the clinic, and singing loudly outside consultation rooms.

In Victoria, councils have a duty to investigate a nuisance in their district under the Public Health and Wellbeing Act 2008. If a council finds that a nuisance exists, it has to take certain kinds of action under the Act.

The Council wrote back to the Clinic, stating that it thought most of HoGPI's actions weren't a 'nuisance' within the meaning of the Act (other than maybe blocking entry to the clinic), and recommending that the Clinic ‘settle the matter privately’ by contacting Victoria Police.

What the clinic argued

The Clinic brought proceedings in the Supreme Court arguing that the Council failed to discharge its statutory duty by misinterpreting the meaning of 'nuisance' under the Act. The Clinic sought an order compelling the Council to address the HoGPI protests as a 'nuisance'.

The Clinic also sought a declaration that the Council's advice that the Clinic contact Victoria Police did not meet the statutory definition of 'settling the matter privately'.

Errors by the Council were within power

The Court found that – even though the Council had made a legal error in concluding that HoGPI's conduct wasn't a 'nuisance' under the Act – the Council had not failed to exercise its powers under the Act, and the Council's error was within power.

In other words, the Council had performed its duty under the Act by considering whether a nuisance existed, even if it had made a mistake by misinterpreting the meaning of 'nuisance'.  Therefore, the Court didn't make any orders compelling the Council to reconsider the Clinic's letter or address HoGPI's conduct in any particular way.

The Court also found that the Council made an error in recommending that the Clinic 'settle the matter privately' through Victoria Police. Again, however, the Council's error was within power: the Council had discharged its duty by recommending a way for the Clinic to resolve the matter privately, even if it had made a mistake by recommending a means of resolution that wasn't 'private' at all.

The Court made a declaration that referral to Victoria Police was not a method of 'settling the matter privately' under the Act.

No reliance on the Charter or constitutional issues

The Council initially raised issues under the Commonwealth Constitution and the Victorian Charter of Human Rights and Responsibilities 2006.

The case potentially raised questions of conflicting rights under the Charter. Section 38 of the Charter requires public authorities, including councils, to act compatibly with human rights and give proper consideration to a relevant right when making a decision.

Relevant Charter rights in this context include the right to free movement, and the right not to have one’s privacy arbitrarily interfered or reputation unlawfully attacked. 

Conversely, the following Charter rights of HoGPI members were potentially engaged: freedom of thought, conscience, religion and belief; freedom of expression; and the right to peaceful assembly and free association.

The Court did not have to grapple with whether the Public Health and Wellbeing Act 2008 was a burden on the implied freedom of political communication under the Australian Constitution.
Ultimately, neither party relied on those arguments.

Watch this space: new buffer zone laws

A Bill making it an offence to engage in certain behaviour within 150 metres of an abortion clinic has been introduced into, and second read in, the Legislative Assembly.

Victorian Government clients wanting further information or advice can contact:

Managing Principal Solicitor
03 8684 0247

Senior Solicitor
03 8684 0425

Friday 25 September 2015

Reform to the development contributions system

In 2012, the (then) Minister for Planning announced a preferred framework for the development contributions system in Victoria in A New Victorian Local Development Contribution System - A Preferred Way Forward. Issues such as the cost and time taken to prepare a development contributions plan and the level of detail required to justify a contributions levy were identified as reasons that the existing development contributions system in the Planning and Environment Act 1987 should be changed.

The Standard Development Contributions Advisory Committee was appointed by the Minister for Planning in 2012 to review and report on the new system. It did this in two reports: Report 1; Setting the Framework (2012) and Report 2: Setting the Levies (2013). The Advisory Committee examined the existing development contributions system and recommended reforms to it. These included using standard levies that could be applied in all Victorian municipalities in various development settings, to make the process for producing development contributions plans less costly and more efficient.

Recently, the Planning and Environment Amendment (Infrastructure Contributions) Act 2015 (Amending Act) was passed. It is expected to commence early 2016 and will implement some of the recommendations of the Advisory Committee, including setting a standard levy to raise revenue to pay for infrastructure which is needed because of the development of land for residential and other purposes.

What is an Infrastructure Contributions Plan?

The new Infrastructure Contributions Plan (ICP) system will operate in a similar way to the existing development contributions plan (DCP) scheme, with some significant differences. Similar to DCPs, ICPs are a mechanism to raise and distribute money required to pay for certain infrastructure.

Like DCPs, an ICP can be included in a planning scheme to levy financial contributions (an infrastructure levy) to fund the construction of infrastructure (works, services and facilities), the need for which is generated by the development of land. The levy is payable when a person seeks to develop land.

ICPs cannot be used to levy contributions for State infrastructure in areas where the growth areas infrastructure contribution (GAIC) applies.

What levies can be required under an ICP?

Unlike DCPs, the infrastructure levy imposed under an ICP can consist of a standard levy or a supplementary levy.

Although not explicit in the Amending Act, it is proposed that the Minister for Planning will make directions which will state that the standard levy is to be used to fund 'basic and essential' infrastructure items selected from a pre-set list of 'allowable' items for residential, retail and commercial development. The allowable items are to be defined in the Ministerial directions and are likely to include items such as transport, community and recreation facilities, and a public land component. The standard levy can be picked 'off the shelf' from the allowable items list for certain areas.

The supplementary levy can be imposed to fund infrastructure that cannot be funded from the standard levy. The use of the supplementary levy (and the rate at which it will be set) will need to be justified each time it is used, unlike for the standard levy.

Where do ICPs apply?

Although it is not explicit in the Amending Act, it is expected that the Minister's directions will initially permit ICPs to be used in greenfield growth areas and strategic development areas in metropolitan and non-metropolitan areas. Greenfield growth areas will accommodate Melbourne's urban growth and are usually located on the periphery of urban areas. Strategic development areas are generally identified in Plan Melbourne and are located on sites that provide development opportunities close to public transport and other infrastructure.

Who are the levies paid to?

The levies are paid to local councils, and relevant State agencies who will be responsible for constructing the infrastructure specified in the ICP (such as VicRoads for certain roads and intersections). With the agreement of the State agency or council, land can be set aside on which infrastructure such as roads, community facilities and parks can be constructed.

How is this relevant?

Once the ICP system is operating, State agencies who have a role in providing works, services and facilities to meet the infrastructure needs of new development in greenfields growth areas and strategic development areas will need to be aware of the differences between the existing DCP system and the new ICP system.

This will include familiarity with the types of State infrastructure that can be funded under ICPs (such as public transport improvements). Funding for State infrastructure is expected to be raised via the supplementary levy (and only for areas where the GAIC does not apply).

State agencies can be expected to have a role to play when a supplementary levy is required to fund the cost of providing State infrastructure, including having input into the justification for a supplementary levy for these purposes.

Victorian Government clients seeking advice on land, planning and environment issues can contact:

Managing Principal Solicitor
8684 0299

Principal Solicitor
8684 0489

Wednesday 23 September 2015

The High Court puts SA breath test laws to the fairness test

Under South Australian drink-driving laws, if you blow a positive breath test you can go to a doctor of your choice and get a blood test to confirm its correctness. But what happens if the doctor makes a mistake and the blood test can't be used? In a case that made it all the way to the High Court, that's exactly what happened, provoking an interesting debate over judges' discretion to ensure a fair trial.

In SA Police v Dunstall [2015] HCA 26, the High Court rejected an argument that courts can exclude evidence for broad-textured reasons of 'fairness', where to do so would be contrary to the intent of Parliament in a particular legislative scheme.

How did it get to the High Court?

Mr Dunstall had successfully argued for a Magistrate to exclude evidence of his positive breath test taken by police on the basis of 'general unfairness'. While he had taken the opportunity to challenge his drink-driving charge by obtaining a blood test in the manner provided for under SA law, the medical practitioner who performed the test failed to take enough blood so the sample couldn't be analysed, and it couldn't be used to challenge or confirm the blood alcohol reading on his positive breath test.  Of course, once the breath test evidence had been excluded, there was insufficient evidence to sustain a drink-driving conviction.

SA Police appealed the Magistrate's decision, and lost, in the SA Supreme Court and Full Court.  The appeal then went to the High Court, which found in favour of SA Police.

The 'fairness discretion' and the question before the High Court

It was no surprise that the Court confirmed the existence of a 'fairness discretion': a trial judge has certain discretionary powers to ensure that an accused receives a fair trial according to law, including by excluding evidence or, in rare cases, by ordering a stay of proceedings.

A trial judge can exclude evidence in three well recognised categories of discretion:

  • The Christie discretion allows a judge to exclude evidence where its probative value is outweighed by the risk of prejudice to the accused person.  
  • The Bunning v Cross discretion enables a judge to exclude evidence that has been tainted by illegality or impropriety.  
  • The Lee discretion enables the exclusion of confessional statements where certain rules about how confessions can be obtained have been breached.

None of these 'discretions' were available in the case of Mr Dunstall's blood test, which was best characterised as a 'loss of evidence' through no fault of either party.  The High Court had to decide whether a judge has power to exclude probative evidence simply on the basis that its admission could be unfair to the accused.

The High Court's decision

The Court found that Mr Dunstall's argument failed to come to terms with the legislative scheme.  Under the SA law, the offence of drink-driving was established by proof of the breath analysis reading alone.  Blood test evidence could be used to confirm, or to call into question, the breath test evidence, but a defendant does not have a statutory 'right' to blood test evidence to rebut the presumption that the breath test was reliable.  The onus is wholly on the defendant to procure the 'second opinion' evidence.  Where the defendant tries to obtain blood test evidence and, through no fault of their own or that of the Police, these efforts fail, it is clearly intended by the SA legislation that the evidence of the individual's blood alcohol level provided by the breath test cannot be challenged.  The only circumstances in which the breath test could be challenged where a faulty blood test was taken were those explicitly provided for in the legislation, ie where a faulty test kit was provided to the accused by Police.  Accordingly, in this case it was not open for a court to decide to exclude the breath test evidence.

In a separate concurring opinion, Justice Nettle considered the scope of a potential fairness discretion, finding that a 'residual discretion' exists to permit a judge to exclude otherwise admissible evidence to prevent an 'unacceptable risk of miscarriage of justice'.  However, Nettle J found that Mr Dunstall could not show an unacceptable risk of injustice, but only that the loss of his blood test evidence 'might have' have had such a result.  In Nettle J's words, the fairness discretion does not exist:
to give effect to idiosyncratic notions of "fair play" or "whether the forensic contest is an even one", still less to deny effect to statutory  modifications of common law means of proof which, because of idiosyncratic notions of what is fair, a judge may disapprove.
In short, the 'unfairness' in Mr Dunstall's case resulted from the proper operation of the legislative scheme itself.  Whatever the scope of a court's 'fairness discretion' to prevent injustice in a criminal proceeding, it cannot override the clear intent of Parliament.

Victorian Government clients seeking advice on public law can contact:

Rachel Amamoo
Managing Principal Solicitor
03 8684 0899

Jordina Rust
03 8684 0468

Friday 18 September 2015

Key features of the Corrections Legislation Amendment Bill 2015

This week the Corrections Legislation Amendment Bill 2015 (Bill), was passed by the Victorian Parliament.
On its commencement, the new act will mean Victoria's parolees will be subject to cancellation of parole should they receive an interstate or overseas prison sentence whilst on parole. The Adult Parole Board's power to compel production of documents or attendance of witnesses is codified and procedural changes to the Board are made, while the power of prison Governors to monitor prisoners electronically is made explicit. Victoria Police will have an additional 12 months to commence proceedings against a parolee for breach of parole conditions under amendments to the Corrections Act 1986 (Corrections Act).

The Bill also amend the Corrections Act to codify the powers of prison Governors, the Adult Parole Board and Victoria Police.

Interstate Prison Sentences against Parolees

Following the decision of the Supreme Court of Victoria in Mercorella v The Secretary to the Department of Justice [2015] VSC 18, the Bill clarifies that parolees may have their parole cancelled if a court in or outside of Victoria imposes a term of imprisonment for offences committed either before or during the parole period.

Adult Parole Board's power to compel evidence

The Bill clarifies the Board's power to compel persons to produce specified documents or attend meetings of the Board to give evidence.  Where a notice to attend is issued to a person in custody, the Board will be able to direct the Governor of the prison to facilitate the attendance of the prisoner, either in person or by video link.
In relation to taking evidence, the Bill confirms the Board is not a court and is not bound by the rules of evidence.  However, the Board may require a person who attends under a notice to attend, to give evidence on oath or affirmation.
In the absence of a reasonable excuse, it is an offence for a person to fail to comply with a notice to produce or notice to attend, potentially attracting a term of imprisonment or fine.

Electronic monitoring of prisoners in prisons

Under the Bill, a new provision is inserted in the Corrections Act to explicitly permit a Governor of a prison to order electronic monitoring of a prisoner.  Examples of possible uses given in the second reading speech are to monitor the movements of selected prisoners within certain areas, to keep certain prisoners separated, or to assist in a medical response if the monitor indicates that a prisoner has stopped moving.
The current s 23, which gives a prison officer general powers to give an order to a prisoner for the security or good order of the prison or the safety or welfare of the prisoner or other persons, is not affected by the new provision.

Time frame for commencing proceedings for breach of parole conditions

Currently, a parolee commits an offence if he or she breaches the conditions of their  parole.  Under the Corrections Act, Victoria Police must commence proceedings against a parolee for breaching his or her parole conditions within 12 months of the date of commission of the alleged offence.
To prevent the time limit of 12 months resulting in some breach proceedings being statute barred because a breach of parole conditions may not be readily apparent before the 12 months elapses, the time limit is extended to 2 years.  This will allow for a criminal investigation to evolve over time, and for  Victoria Police to await the outcome of court proceedings related to other offences.
Among other changes, the Bill will also permit the Secretary to the Department of Justice and Regulation to authorise departmental officers to perform the roles of a community corrections officer, regional manager and secretary to the Board.

Brendan McIntyre
Principal Solicitor
9947 1435

Elizabeth Wortley
Senior Solicitor
9947 1433

Debra Coombs
Principal Solicitor

Thursday 17 September 2015

Charter review handed down today!

The 2015 Review of the Victorian Charter of Human Rights and Responsibilities was handed down today.

The Charter Review 2015 is titled 'From Commitment to Culture' and looks at ways to make the Charter more accessible, effective, and practical.

The Review contains a number of recommendations that may herald an exciting new era for the Charter, including:

  • a separate cause of action (minus damages) to VCAT
  • dispute resolution procedures via the Victorian Equal Opportunity and Human Rights Commission, and
  • a range of other initiatives and amendments.

We look forward to the Government's response to the Review.

For more information about the Charter Review 2015, or the Charter and its application to Victorian Government clients, please contact:

Catherine Roberts
Managing Principal Solicitor
03 8684 0427

Thursday 10 September 2015

Tweets aren't cheap

This case illustrates the great care that must be taken when drafting short, sharp publications intended for dissemination on either social or traditional media platforms.

In Hockey v Fairfax Media Publications Pty Limited, handed down on 30 June 2015, Justice White of the Federal Court of Australia found that Fairfax Media had defamed Federal Treasurer Joe Hockey and awarded him $200,000 in damages. The judgment makes for interesting reading.

The case concerned articles, tweets and a poster published by the Sydney Morning Herald (SMH), The Age and The Canberra Times. The articles stated that Mr Hockey was providing 'privileged access' to a 'select group' in return for donations to the Liberal Party. The tweets and poster acted as sign-posts to the articles through use of the phrase 'Treasurer for Sale' and similar.

Mr Hockey sued the papers' corporate arm, Fairfax, for defamation in three proceedings, which were heard together.  He asserted that the publications contained defamatory imputations (e.g. accusations or meanings), including that he had acted corruptly (the relevant imputations).

Did the publications contain the relevant imputations?

Fairfax conceded that the relevant imputations would be defamatory, but denied that the articles, tweets and poster conveyed them. The contest between the parties turned on this point.

In determining whether the articles, tweets and poster conveyed the relevant imputations, Justice White adopted the customary 'reasonable person test' as his starting position. His Honour queried whether the 'ordinary, reasonable reader would have understood the matters complained of in the defamatory senses pleaded' and, in doing so, made several handy comments about the nature and disposition of our hypothetical friend (see paragraphs 63 - 73 for more on this).

Ultimately, his Honour concluded that the ordinary, reasonable person would not have understood the articles to have conveyed the relevant imputations about Mr Hockey, but would have understood two of the tweets and the poster to have done so.

The key distinction between the articles, tweets and posters, in his Honour's judgment was the context that the authors of the articles were able to provide in drafting them. His Honour found that individual passages of the articles, when read in isolation, could be understood as conveying a defamatory imputation.  When the articles were read as a whole, however, his Honour found that those passages were 'cured' - that the ordinary, reasonable reader, after reading the articles in full, would arrive at a more nuanced conclusion that did not defame Mr Hockey. 

The tweets and posters were a different story. Without the benefit of context, Justice White found that two of the tweets and the poster were undoubtedly defamatory. His Honour did not consider that the hyperlinks contained within the two relevant tweets provided sufficient context since, on the evidence, a substantial number of people viewed the tweets without clicking on them. The third tweet that contained an embedded version of the article was, however, deemed to contain sufficient context and, for that reason, was not regarded as defamatory.

Defence of qualified privilege did not apply

The statutory defence of qualified privilege, and the extended form of qualified privilege recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 were found not to apply because, in his Honour's view, the publications were not reasonable, and appeared to have been motivated by an improper motive that would prevent the defence from succeeding.

His Honour considered the application of the defences to each of the articles, tweets and posters. Mr Hockey conceded, as part of this consideration, that the subject matter of the articles, tweets and poster was a matter of public interest, and that imputations contained in the publications were conveyed in the course of providing the public with information on that subject. The application of qualified privilege therefore centred on the third element of the defence - whether, in all of the circumstances, Fairfax's conduct was reasonable.

His Honour considered a range of factors, some from statute and others from common law (see paragraphs 227 - 230 for more on this), as part of this enquiry. Ultimately, his Honour  concluded that Fairfax had not acted reasonably in publishing the articles, tweets or poster. 

The most relevant consideration in respect of the articles was the steps Fairfax had taken to obtain a response from Mr Hockey before publishing them - steps which, in his Honour's view, were inadequate. The most relevant consideration in respect of the tweets and poster was the availability of alternative, non-defamatory modes of expressing the same point -  that Fairfax could have used words like 'Hockey: donations and access. Herald investigation', or other non-defamatory phrases, without losing effect.

His Honour also considered whether, in the event qualified privilege were deemed to apply, it would be vitiated by the presence of an improper motive by  Fairfax. The issue of an improper motive arose from several emails and texts sent between Fairfax editors and journalists, which included an instruction that the story be 'nailed to a cross'.  His Honour concluded, on the basis of this exchange, that the articles, tweets and poster had been actuated by SMH editor-in-chief, Darren Goodsir's, personal animus towards Mr Hockey, and that qualified privilege would therefore have been defeated, if it had applied.

To refresh your memory on best practice for members of the VPS on social media see our previous blog When is it ok for a public servant to tweet political opinions?

If you would like advice about this case, or about defamation law and its application to you,  please  contact:


Managing Principal Solicitor

Friday 4 September 2015

Lease vs Licence - What difference does it make?

The State and its agencies own and manage vast tracts of land in Victoria, much of which offers potential economic or other benefits to the private sector.  For example, the State often makes land and buildings available to a business operator for the purposes of running its business or a community group so it can  hold meetings, workshops and/or training sessions.  Alternatively, the State may wish to make land available for use by the private sector in the furtherance of particular significant policy objectives.

Preliminary considerations

Before deciding on the nature of the tenure which your department or agency should grant over a piece of land, it is important to step back and ask a few questions. For example, you should consider:

·         Who wants to occupy the land and for what purpose?
·         Does the Government want to make the land available to achieve a particular policy objective?
·         Does achieving that purpose require exclusive possession or is a lesser form of tenure sufficient?
·         Does the future tenant need to put up the tenure as security for raising capital so they can finance the project?
·         Will the department or agency or third parties need to access the land while it is occupied?

The answers to these questions will assist with determining which form of tenure you should offer to the prospective occupant and the terms and conditions of that tenure.

When is a lease appropriate?

A lease is an agreement between an owner of land and a tenant which grants a right of exclusive possession to the tenant.  This means the tenant can exclude the whole world, including the landlord, from accessing the land for the term of the lease as long as the tenant complies with its obligations under the lease agreement.  Even if a tenant breaches a condition of the lease and risks 'forfeiting' the lease, a leasehold tenant can apply to the Court for the equitable remedy of relief against forfeiture.  If the tenant is successful, the Court will permit the tenant to remain on the land, subject to prompt rectification of the existing breaches and compliance with other conditions.

The rights under a lease will attach to the leased land - if the tenant assigns the lease to a third party, for example if the tenant sells its business, the third party will also enjoy the same right of exclusive possession of the leased premises. 

Another aspect of a lease is that it is capable of being registered on the title to the land.  Registration of the lease also enables registration of any mortgage granted over the leasehold interest.  So if a tenant has granted a mortgage to a bank as security for money borrowed against the lease and the tenant defaults in its mortgage repayments, the bank will be able to access the important statutory powers applicable to a mortgagee in Part IV of the Transfer of Land Act 1958.  These include a mortgagee's power of sale, the power to take possession of the land and a right to seek an order for foreclosure.  As a result, banks may be more willing to provide finance to a tenant with a registered leasehold interest.

These aspects may make a lease an attractive option to someone who wants to operate a business from the premises and needs to raise investment capital for its start up and who also wants the flexibility of later transferring the leasehold interest, along with the business, to a third party. 

Of course, a downside for a tenant is that a higher commercial value is likely to attach to the lease consistently with the powerful bundle of rights held by a leasehold tenant.

When might you grant a licence?

Like a lease, a licence grants a right to a party to access and occupy land subject to the terms of the licence. 

Unlike a lease, the occupant under a licence does not have the right to exclusive possession of the licensed premises - in other words they may have to share occupation with the licensor and third parties or may only be able to use the licensed area at certain times or days.

Another key difference of a licence to a lease is that the rights of a licensee are not assignable to a third party (unless the agreement specifically permits this).  Additionally, a licence interest cannot be registered on title.

Therefore, a licence is likely to be suitable where an occupant needs specific rights to an area of land, water or airspace, but it is not necessary or appropriate for the occupant to have the right to exclude the rest of the world from the premises.  Examples of where licences are commonly used in Government include granting a right to a telecommunications company to install a mobile telecommunications tower on State owned land and allowing community groups to use school buildings and facilities.

As property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  Please contact:

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Friday 7 August 2015

Transforming procurement

In February 2013, the Victorian Government Purchasing Board introduced a new policy framework designed to support a more strategic and efficient approach to procurement.  As part of this reform, the VGPB adopted five new policies, intended to replace more than 30 policies previously in place.  The reform seeks to reposition procurement as a core business function for departments.

Of course, the procurement profile of each department is quite different.  Departments were given an extended period to transition to the new framework and they have progressively done so.  As of 1 January 2015 all departments had transitioned to the new policy framework. As part of these reforms, each department now has a Chief Procurement Officer.  

VGSO have met with a number of these CPOs to discuss the challenges they have faced in implementing the new policies and improving procurement practices and outcomes across their departments.  While their experiences varied, there were a number of common themes.  A key concern was the need to increase capability in various areas.  These areas include:
  • understanding probity considerations, including conflicts of interest;
  • preparing sourcing documentation; including the importance of clear evaluation criteria and setting clear mechanisms for evaluation;
  • increasing understanding of issues encountered in negotiation and award of contracts including how to drive value and the inclusion of appropriate price review clauses;
  • risks involved in incorporating external documents including specifications into the final contract; and
  • the importance of clear, measurable and achievable KPRs with clear consequences. 

Last year, we held a seminar dealing with this final point: 'Managing Performance under Contracts'.  During August, our annual Projects and Procurement Practice Group seminar will focus on the role of specifications at various stages of the procurement process and how to ensure that it becomes a robust part of your contractual suite.

Our August seminar 'Metamorphosis: The evolution of the specification' has already booked out, however we will be live tweeting. You can follow us @VicGovSolicitor and join the conversation using #vgsolive.

For legal assistance regarding procurement please contact:

Assistant Victorian Government Solicitor
9947 1404

Managing Principal Solicitor

9947 1401

Tuesday 4 August 2015

Regulators and decision-makers, it's a dog's life

The recent High Court decision in Isbester v Knox City Council [2015] HCA 20 reinforces to regulators that their staff cannot act as jury, judge and executioner, and they must apply the principles of natural justice to each decision, acting without any perception of bias.
On 10 June 2015, the High Court in essence held that the same staff within a regulator cannot be involved in the prosecution of a criminal charge then sit on a review panel for a related matter, even if not acting as the final decision-maker, due to the perception of bias.
Facts of case
Ms Hughes was a Council employee who, as an authorised officer, charged Ms Isbester with an offence under s 29 of the Domestic Animals Act 1994 (Vic) relating to an attack by her dog.
Later, Ms Hughes sat as a member of a three-person panel which deliberated and recommended to the chairperson of that panel, who was the ultimate decision maker, that he make an order to destroy the dog under s 84P(e) of the same Act.
The High Court considered the question of whether there was a possibility that Ms Hughes could have prejudged the decision to destroy the dog after her involvement in the prosecution of the charges against Ms Isbester, and whether that could give rise to an apprehension of a conflict of interest.
Principles of bias
The well-known principle governing cases of possible bias was said in Ebner[1] to require two steps:
1.         An interest which might lead a decision-maker to decide a case other than on its legal and factual merits.
2.           A logical connection between that interest and the feared deviation from the course of deciding the case on its merits.
Ms Isbester had alleged that:
(a)          Ms Hughes had such an 'interest' as a person bringing charges, whether as a prosecutor or other accuser, in the outcome of the hearing of those charges; and
(b)          This interest would conflict with the objectivity required of Ms Hughes as a member of another decision‑making body deciding the consequential matter of whether to destroy the dog.
Joint judgment
In their joint judgment, the Honourable Justices Kiefel, Bell, Keane and Nettle held at [42] that:
It is not realistic to view Ms Hughes' interest in the matter as coming to an end when the proceedings in the Magistrates' Court were completed.  A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates' Court proceedings from her actions as a member of the Panel.  It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter.
Of course, the "final outcome of the matter" was the decision of whether to destroy the dog.
Their Honours held at [43] that:
Having participated in obtaining the conviction for the offence under s 29(4), [Ms Hughes] organised the Panel hearing and drafted the letter advising [Ms Isbester] of it.  She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog.  If Ms Hughes could not actually be described as a prosecutor with respect to the decision under s 84P(e), she was certainly the moving force.
A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s 84P(e).
Their Honours confirmed that this was the case even though the primary judge had found that Ms Hughes had acted nothing other than diligently, and in accordance with her duties, or that she was in fact wholly impartial.  They said that "natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed."
So, the decision to destroy the dog was set aside.  As they say, every dog has it's day...
Victorian Government clients seeking advice on investigations and the prosecution of criminal charges, can contact:
Principal Solicitor
8684 0423

Managing Principal Solicitor
8684 0414

[1] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337

Wednesday 22 July 2015

Australian Federalism - Competitive, Coordinate, Cooperative, Coercive or … Confusing?

Illustration: Mallory Brangan

The first Issues Paper in the Reform of the Federation White Paper process canvassed three approaches to federalism beginning with the letter 'c'  ̶  competitive, coordinate and cooperative. The paper also acknowledged the potential for the cooperative to morph into the coercive. According to the latest release from the Federation White Paper taskforce, Australia has a 'confusing' federalism  ̶  a problem the White Paper aims to address.

A story about a leak and a draft

Since our previous blog entry on the Reform of the Federation White Paper, the taskforce has released four Issues Papers about the allocation of roles and responsibilities between the Commonwealth and States. These papers were designed to outline key issues before coming up with policy options in the Green Paper on how to reduce duplication, limit wasteful expenditure and end the 'blame game' between different levels of government in Australia. However, a series of potentially damaging 'leaks' from the Green Paper, has led the Department of Prime Minister and Cabinet to publish a draft Discussion Paper ahead of a formal Green Paper.

How does the draft Discussion Paper hope to reform the Federation?
The draft Discussion Paper is a consultation document containing a number of policy proposals. Although the paper opens with the optimistic assessment that 'Australia's Federation has worked well since 1901', the taskforce has identified a particular need for improvements in how we manage health, education, housing and homelessness. There are also separate proposals for improving the Federation's governance arrangements and financial relations.

The draft policy proposals were arrived at after consultation with the community, states and territories, local government, and the Prime Minister's recently appointed Expert Advisory Panel. The paper stresses that the proposals are merely options; they are not necessarily mutually exclusive, listed in order of preference or approved by all levels of government. The proposals also vary in magnitude and we are cautioned not to expect a 'big bang' moment in federation fixing.

In general terms, the options involve either one level of government 'getting out of the way' while the other adopts full responsibility for a policy area, improved coordination among governments, or something in between.

A principled and practical approach

A key weakness of Australian Federalism, according to the draft Discussion Paper, is the ad hoc approach we take to deciding who does what, based on discrete events or priorities of the Government of the day. The taskforce advocates that we instead adopt a principled way forward.

Interestingly, the draft Discussion Paper has replaced the principles set out in the White Paper's Terms of Reference with a new set of 'practical' values, including the decree: 'be fair'. It seems that the new criteria will be used to drive a very pragmatic approach to how federation reform can best drive improvements in community wellbeing, with a focus on the 'main game' of effective service delivery.

Will the real green paper please stand up?

It is unclear how far the real Green Paper will depart from the draft Discussion Paper. However, we can expect to see the final product by the end of the year and in light of the upcoming COAG leaders' summit, perhaps in the very near future.

The process will wrap up in 2016 with a series of suggested policy preferences published in the White Paper. Based on the draft proposals, we now know that constitutional amendment is not on the table.

Finally, given the underlying role played by financial relations in the present state of 'confusion', the Reform of the Federation White Paper will track closely with the White Paper on the Reform of Australia's Tax System. As many of you know, the Commonwealth raises far more revenue than is required to meet its constitutional responsibilities, while States face a significant funding shortfall. For his part, the Federal Treasurer has recently indicated a desire for all levels of government to take responsibility for their own spending requirements. However, if the White Paper supports a policy preference for returning full responsibility to States and Territories in areas like health and education, funding the 'Federation for our future' will be a significant challenge.

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.

Managing Principal Solicitor
8684 0899

Managing Principal Solicitor
8684 0220

Thursday 16 July 2015

Native Title Round Up

With NAIDOC Week fresh in our minds, VGSO's Land, Planning and Environment Team thought it timely to provide a round up of recent developments in Native Title in Victoria.

1. ALRC recommends significant Native Title Act reforms 

The Australian Law Reform Commission's report on the Native Title Act 1993 includes recommendations that could create significant change in the jurisdiction if the Federal Government passes laws to implement them. The report, 'Connection to Country', was tabled in Parliament on 4 June 2015. Its key recommendations include amending the Act so that claimants would not have to prove that traditional laws and customs have been observed by each and every generation since sovereignty, nor that the society defined by the laws and customs has continued in existence since before sovereignty. The report also recommends that the Act explicitly acknowledge that traditional laws and customs may adapt, evolve or otherwise develop, and that native title rights be capable of including commercial trading rights. The Report contains 30 recommendations overall. The Native Title Act applies nationally.

2. Northern Victorian Claim Ends After 15 Years

The Wadi Wadi, Barapa Barapa, Wamba Wamba native title claim was struck out by the Federal Court on 15 June 2015. It was struck out on the basis that the claim had not progressed for some time, and in the present circumstances the three claimant groups were not in a position to move the claim forward in an efficient way. The Court noted that the strike out was procedural, and did not reflect on whether or not native title rights exist in the area. The groups are still able to file a new native title claim, or pursue rights and recognition under the Aboriginal Heritage Act 2006 or Traditional Owner Settlement Act 2010. The claim covered areas along the Murray River and extended south of Swan Hill.

3. Gunaikurnai People: New Wilson's Promontory claim registered

The Gunaikurnai People have made a new native title claim over Wilson's Promontory, which has now been entered on the National Register of Native Title Claims. This triggers certain procedural entitlements under the Native Title Act in respect of any projects over Crown land in the claim area that would affect native title (a 'future act'). The claim includes Corner Inlet, extends north inland towards Berry's Creek, and west to Point Smythe. It also includes islands off Wilson's Promontory. The Gunaikurnai People lodged the claim in the Federal Court on 9 December 2014. The Native Title Registrar's delegate was satisfied that the claim met criteria under the Native Title Act, and accepted the claim on the Register of Native Title Claims on 20 April 2015.

4. Victorian alternative to future act regime commences for Dja Dja Warrung

The Dja Dja Wurrung Clans Aboriginal Corporation had the first ever 'Land Use Activity Agreement' commence in late 2014. This triggers procedural entitlements and requirements under Part 4 of the Traditional Owner Settlement Act 2014 that particular persons need to follow when carrying out certain activities in the agreement area. The agreement covers a defined area in the vicinity of Bendigo, Central Victoria. Examples of activities range from clearing Crown land, to the grant of mineral tenements, to the sale of Crown land. Agencies involved with activities covered by the agreement in that area should familiarise themselves with the relevant requirements. The agreement is publicly available on the Department of Justice and Regulation website. 

For enquiries regarding Native Title and related matters, please contact:

Managing Principal Solicitor
9947 1419

Principal Solicitor
9947 1422