Vicarious liability - when will an employer be liable for the wrongful acts of an employee?

The recent High Court decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 (PAC) provides guidance on the approach to be taken by courts in determining whether an employer is liable for the wrongful (criminal) acts of an employee. The previous leading case, New South Wales v Lepore [2003] HCA 4 (Lepore), provided no majority view in respect of this issue.

PAC is highly relevant to government departments and agencies, as it specifically concerns the approach to be applied in cases dealing with the abuse of vulnerable persons in educational, residential or care facilities, by persons employed in special positions with respect to these vulnerable persons.

Background

In 1962, ADC was a 12-year-old boarder at Prince Alfred College in Adelaide (College). A senior housemaster and three housemasters, including Dean Bain (Bain), were in charge of the dormitories. Although the housemasters were present during meal times, prefects supervised the day-to-day activities of the junior boys, including showering and lights out. Bain was rostered on a few times a week, was often around during shower time, and told stories to the boys in the dormitory after lights out. The other housemasters did not supervise lights out and did not come into the dormitory. ADC alleged that Bain first molested him when Bain was telling a story during lights out, progressing to being molested in Bain's room, and on one occasion when Bain took him to a house where they spent the night together.

Primary proceeding 

ADC sued the College, arguing (among other things) that it was vicariously liable for Bain's abuse, which had caused him to suffer psychological injury. It was not in dispute that ADC had been abused by Bain, as he had been previously convicted of two counts of indecent assault against ADC. The primary judge dismissed the proceeding, declining to extend the time for ADC to bring proceedings. In respect of the vicarious liability claim, Vanstone J concluded that the sexual abuse was 'so far from being connected to Bain's proper role that it could neither be seen as being an unauthorised mode of performing an authorised act, nor in pursuit of the employer's business, nor in any sense within the course of Bain's employment'.

Appeal to Full Court

ADC appealed to the Full Court of the Supreme Court of South Australia, and was granted an extension of time to bring the proceeding. Each member of the Full Court also found the College to have been vicariously liable, but the approaches taken by the judges differed from that taken by the primary judge and differed as between themselves. Factors considered by the judges included the 'spectrum' of intimacy (in this case, ADC being a 12-year-old boarder with a housemaster exercising quasi-parental authority in respect of 'intimate' matters such as showering and bed), that the College enhanced the risk by allowing Bain access to the children without supervision, and that Bain was in a position of power over ADC, with respect to matters of order and discipline.

Appeal to High Court 

The High Court allowed the appeal by the College on the basis that an extension of time to commence the proceeding should not have been granted by the Full Court, and that the issue of liability should not have been considered by the primary judge (ie after the judge had determined the proceeding was out of time). However, the High Court acknowledged that, since Lepore, lower courts have been left in an uncertain position about the approach that should be taken in vicarious liability cases of this kind, and that there was a need for guidance to reduce the risk of unnecessary appellate processes arising out of the existing uncertainties.

The relevant approach 

The majority judgment held that the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability, it being possible that in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee in relation to the victim.

Their Honours considered therefore that the relevant approach in determining vicarious liability is to consider any special role that the employer has assigned to the employee, and the subsequent relationship between the employee and the victim, with particular regard to the following features:

• Authority;
• Power;
• Trust;
• Control; and
• The ability to achieve intimacy with the victim. 

It was noted that the latter feature may be especially important, it being conceivable that where an employee takes advantage of his or her position in these circumstances, that may suffice to determine that the wrongful act should be regarded as being committed in the course or scope of employment, and as such render the employer vicariously liable. However, their Honours also noted that it was conceivable that while unlawful acts committed in a workplace would attract vicariously liability, some or all of such other unlawful acts committed outside the workplace would not (for example, the offending by Bain which occurred in a house).

The minority judgment accepted that the relevant approach described in the majority judgment will now be applied in Australia, but noted that it does not and cannot prescribe an absolute rule, and that applications of the approach must and will develop case by case.

Andrea Robinson
Principal Solicitor

Anna English
Managing Principal Solicitor

As a landlord, do I have to comply with the Retail Leases Act 2003?

As a general rule, landlords, particularly landlords of commercial properties, enjoy superior bargaining power when it comes to leasing their properties.  The terms and conditions of leases are set by the landlord and, subject to market conditions and the bargaining power of a potential tenant, are often non-negotiable.  In these circumstances, the only option for a potential tenant may be to walk away from the transaction.

The Retail Leases Act 2003 (Act) addresses this imbalance in bargaining power for leases of retail premises in a number of ways, for example by providing that:

• a landlord cannot pass on to a tenant the cost of preparing and negotiating the lease; 
• a landlord must consent to a tenant's request for assignment of the lease except in limited circumstances;
• a tenant has a right to a minimum term of 5 years, even if the lease provides for a shorter term.  However, a tenant can contract of out this right if the tenant obtains a certificate from the Small Business Commissioner under s 21(5) of the Act and gives the landlord a copy of the certificate; and
• a landlord is responsible for undertaking certain repairs and maintaining the premises in certain ways.

What are 'retail premises'?

The Act applies to leases of 'retail premises' entered into or renewed after 1 May 2003.
'Retail premises' are premises that, under the terms of the lease, are used wholly or predominantly for:

• the retail sale or hire of goods;
• the retail provision of services; or
• the carrying on of a specified business or specified kind of business as determined by the Minister.

Exemptions to the Retail Leases Act 2003

Not all retail tenancies are leases of 'retail premises'.  Some types of leases are exempt from the application of the Act, and the Minister for Small Business, Innovation and Trade has the power to exempt further kinds of business, premises, tenant or leases.
In Government, some of the more commonly encountered categories of exempted leases are:

• Local council premises used wholly or predominantly for public or municipal purposes;
• Leases for premises used wholly or predominantly for public or municipal purposes with a rent of $10,000 or less;
• Premises where occupancy costs under the lease are more than $1,000,000 p/a;
• Premises where the tenant carries on the business as the landlord's employee or agent;
• Premises where the tenant is a listed corporation or its subsidiary;
• Premises located above the first three storeys in a building used for retail purposes; and
• Leases 15 years or longer in duration that impose substantial obligations on the tenant.

Why does it matter?

The Act alters the balance of power between tenants and landlords by imposing a number of obligations on landlords and creating various tenant rights.  In order to understand their rights and obligations, landlords and tenants must know whether their lease is governed by the Act.  Departments and Agencies proposing to grant a lease of retail premises should always check whether an exemption applies.
As property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  For further advice and assistance, please contact:

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Elizabeth Wortley
Senior Solicitor
9947 1433

For their eyes only? When can an employer access and use information on an employee's Facebook page?

Supreme Court confirms public sector employer has privacy obligations with respect to personal information on an employee's Facebook page but may use that information where there's a legitimate reason to do so (such as reasonably conducting a legitimate employment misconduct investigation).

A recent decision of the Supreme Court of Victoria (Jurecek v Director, Transport Safety Victoria [2016] VSC 285) provides guidance about when a public sector employer may access an employee's social media publications without breaching privacy laws.
The proceeding was brought under the Information Privacy Act 2000 (the Act), but the Court's findings are relevant to the Privacy and Data Protection Act 2014  because the Information Privacy Principles (IPPs) under both Acts remain the same in all material respects.

The Facts

The employee engaged in various Facebook activity, including posts and messages that were abusive and critical of her employer and other employees.  The employee operated her Facebook page under a pseudonym with privacy settings, although these did not fully restrict access to the Facebook page.
The employer was made aware of the activity and initiated a disciplinary investigation.  For the purposes of that investigation the employer accessed the employee's Facebook page, initially without her knowledge, and took screenshots of the content.

The employee was disciplined following findings of misconduct.

The employee lodged a complaint with the Privacy Commissioner, alleging that the employer had breached the IPPs by accessing her Facebook page.  The Privacy Commissioner dismissed the complaint and the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT).  VCAT also dismissed the complaint and the employee appealed VCAT's decision to the Supreme Court.

Social media posts may be 'personal information' for the IPPs

The employer contended that, because the employee’s Facebook posts were accessible by anyone, they possessed the character of a 'generally available publication' and were therefore exempt from the operation of the IPPs under the Act.

The Court disagreed, taking the view that the mere publication of information on Facebook or the Internet does not necessarily make it a ‘generally available publication’.
Whether such information is a 'generally available publication' will depend on the facts and circumstances as a whole, the nature of the information, the prominence of the site, the likelihood of the access and the steps needed to access the site.

In this case, the Court found that the employee's Facebook posts were not 'generally available' and, because the posts expressed her opinion, they satisfied the definition of ‘personal information’ for the purposes of the Act.  Accordingly, the IPPs applied and the Court needed to determine whether they had been breached.

Employers may access an employee's social media posts if reasonably necessary for an investigation

The employee claimed that the employer was not lawfully entitled to access and collect her personal information (ie her Facebook posts) because such collection was not 'necessary for one or more of the organisation's functions or activities'.

The Court agreed that the employer could only access and collect the employee's personal information if it was necessary for the organisation's functions or activities.  However, the Court found that the disciplinary investigation was a function of the employer’s organisation and that accessing the employee’s Facebook account for that purpose was legitimate and necessary and not unlawful, unfair or unnecessarily intrusive.

Employers need to inform employees when they collect personal information from social media, but not necessarily immediately

The employer delayed notifying the employee about its collection of her personal information.  The employee claimed that this delay constituted a breach of the IPP notification obligations.
The Court rejected that claim.  It held that the IPPs do not impose an obligation of immediate notification but rather an obligation to take such steps as early as practically possible.  In this case, it was reasonable for the employer not to notify the employee earlier because it could have jeopardised the integrity of the disciplinary investigation.

Key implications

• Public sector employers may collect personal information from an employee’s social media page, but only when it is necessary for one or more of the organisation’s functions.
• If access to an employee's social media page is reasonably necessary for a disciplinary investigation, accessing that page and collecting relevant information is unlikely to breach the IPPs.
• If an employee's personal information is collected, employers must take steps to notify the employee as early as is reasonable in the circumstances.  Employers do not need to notify an employee immediately if doing so would jeopardise a disciplinary investigation or other legitimate purpose.

As the Court noted, 'matters of fact and degree are involved' and it is necessary to balance, 'in a reasonably proportionate way', 'what is at stake for the individual' with the 'nature and importance of any legitimate purpose' and 'the extent of the interference'.  This means that each situation needs to be considered on its merits.

To discuss workplace relations further contact:

Rosemary Robins
Solicitor
Workplace Relations & Occupational Safety
9032 3036

Jacqueline Parker
Assistant Victorian Government Solicitor,
Workplace Relations & Occupational Safety

9032 3011

Its raining cats and dogs!

What is the issue?

A recent decision of the Court of Appeal identifies seven factors to be considered and assessed in determining whether an overflow of water onto land is reasonable.[1]  These factors may have relevance to statutory agencies, Departments, Ministers and authorities responsible for public land or public infrastructure in particular, at times of heavy rainfall.

What was decided?

The Court of Appeal in Hazelwood Power Partnership v Latrobe City Council[2] held that the Morwell Main Drain was not a public drain for the purposes of the Water Act 1989.  Following that conclusion, the Court of Appeal considered whether the flow of water from the Morwell Industrial Estate and from the township of Morwell into the Morwell Main Drain was unreasonable.

Historically, the test of lawfulness for flow of water related to whether the landowner was uphill or downhill.  Called the 'free flow principle', it was considered that an owner of lower land was obliged to receive all flows of surface water onto his or her land that occurred naturally from the higher land.  The Water Act 1989 replaced the 'free flow principle' with a 'reasonableness' test.  That is, the question is no longer whether a flow of water is 'natural' but whether it is 'reasonable'.

The Court of Appeal agreed with the trial Judge's finding that the flow onto the Hazelwood land of waters generated in substantial part by the municipal drains on higher ground was reasonable.  The seven key factors considered in concluding that the flow of water was 'reasonable' were:

1. the contours of the land;
2. the use of the lands concerned and the lands in the vicinity;
3. the limited sense in which the water flow complained of from the Council drains could be said to be something other than a natural flow (ie, the 'free flow' principle);
4. the purpose for which and degree of care with which the Morwell Main Drain was originally constructed by the SECV in 1949;
5. there was no evidence of a lack of appropriate regard to the cumulative impact of the subsequent drainage works which occurred over time;
6. the fact that all drainage works were assumed to have appropriate statutory authority;
7. the fact of prior consent or acquiescence to the flows of water for more than 60 years, since the Morwell Main Drain was first constructed by the SECV for the purpose of diverting flows of storm and rain water run-off from entering the open cut mine. 

The Court of Appeal noted that the flow of water carries an ongoing risk of serious damage to the Hazelwood land and the northern batters in particular.  However in this case, the flow was considered to be reasonable.

What does it mean for me?

The Court of Appeal has provided decision-makers (and those who advise them) guidance in assessing the question of reasonableness of flow of water from public land or infrastructure into private drains or onto privately held land, identifying seven relevant considerations.

Alison O'Brien
Acting Victorian Government Solicitor

Eliza Bergin
Principal Solicitor

---

[1] Hazelwood Power Partnership v Latrobe City Council [2015] VSCA 129 (Warren CJ, Osborn and Beach JJ).  See further, section 20 of the Water Act 1989

[2] [2015] VSCA 129

Attorney-General v Honourable Mark Dreyfus: When can burdensome freedom of information requests be refused?

Freedom of information (FOI) schemes in both Victoria and the Commonwealth give public entities the power to refuse unreasonably burdensome FOI requests.  In the case of agencies, requests may be refused where they would substantially and unreasonably divert the resources of the agency from its other operations. In the case of ministers, requests may be refused where they would substantially and unreasonably interfere with the performance of the minister's functions. 

A recent decision of the Full Court of the Federal Court, Attorney-General v Honourable Mark Dreyfus [2016]FCAFC 119, provides guidance as to when a request can be refused on this ground.

The decision, which was handed down on 6 September, concerned an FOI request made by the Hon Mark Dreyfus, a Member of the Commonwealth Parliament, seeking access to the diary entries of Commonwealth Attorney-General George Brandis.  Mr Dreyfus requested entries for the period 18 September 2013 to 12 May 2014 in a 'weekly agenda' format.  The diary entries were generally brief, containing the time of the meeting, the person to be met and occasionally a short description. 

The Attorney-General initially refused the request, on the basis that processing it would 'substantially and unreasonably interfere' with the performance of his functions.  The Attorney-General estimated that the process would take around 630 hours, including time spent gathering information that could not be gleaned from the entries alone and consulting with third parties mentioned in the entries.

The Administrative Appeals Tribunal set aside the Attorney-General's decision, a finding that the Full Court of the Federal Court upheld. 

The Federal Court's decision turned on the following two questions:

• When would the Attorney-General be required to consider extrinsic documents in determining whether a claimed diary entry could be released?
•  When would the Attorney-General be required consult with third parties to determine whether such a party might wish to claim an exemption?

In relation to both questions, the Court held that the Attorney-General would only be required to consider extrinsic documents or consult with third parties if it appeared from the face of the entries that this would be necessary.  The Court found that most of the entries did not require this.  The request could not, therefore, be rejected for substantial and unreasonable interference with the performance of the Attorney-General functions. 

The Federal Court's judgment is consistent with past determinations on similar issues.  In Fletcher and Prime Minister of Australia[2013] AICmr 11 (22 February 2013),  for example, the Australian Information Commissioner upheld a request for access to cross-bench meeting entries in the Prime Minister's diary for the period of about one year.

The decision is a useful reminder for public entities to adopt a pragmatic approach when considering whether a FOI request would be a substantial and unreasonable diversion of resources, and to keep in mind that it will be necessary to prove, with persuasive evidence, to the Freedom of Information Commissioner, or VCAT, that any claim that the processing of a particular FOI request would constitute a substantial and unreasonable diversion of resources would in fact do so.

Penina Berkovic 

Acting Managing Principal Solicitor

Andrew Field 

Managing Principal Solicitor

Foreign Resident Capital Gains Withholding Tax

Sales of certain taxable Australian property made after 1 July 2016 are subject to a new withholding regime introduced by the Tax and Superannuation Laws Amendment (2015 Measures No 6) Act 2016 (Cth).  Under this regime, purchasers are required to withhold 10 percent of the purchase price on all acquisitions of certain taxable Australian property and remit it to the Australian Tax Office (ATO) unless the vendor provides a clearance certificate.

This measure has been introduced to improve compliance with capital gains tax rules by foreign residents, but will have widespread implications for Australian residents involved in property transactions.

When does the measure apply?

The regime applies to contracts entered into after 1 July 2016 by which the purchaser acquires certain taxable Australian real property, including:

• Real property in Australia, including land, buildings, residential and commercial property;
• Lease premiums paid for the grant of a lease over real property in Australia;
• Mining, quarrying or prospecting rights;
• Company title interests; and
• Options or rights to acquire such property or such an interest.

Certain transactions are excluded, including real property interests of less than $2 million, transactions listed on an approved stock exchange, or where the vendor is under external administration or in bankruptcy.

What does this mean for purchasers of property with a market value of $2 million or more?

If the purchaser receives a valid clearance certificate from the vendor, withholding tax is not to be withheld from the transaction and the purchaser can rely on the certificate without making further enquiries.

If the purchaser is not provided with a valid clearance certificate before settlement, the purchaser must withhold 10 per cent of the purchase price and pay it to the ATO on or before the day the purchaser becomes the owner of the asset.  A short grace period applies before interest begins accruing.
Prior to settlement, all purchasers involved in the sale must complete an online Purchaser Payment Notification form, including the details of the vendors and the relevant asset. Once the form is processed, each purchaser will receive a payment reference number, payment slip and barcode.  These are used when making the payment to the ATO via electronic transfer, in person at Australia Post or mailed with a cheque.
There are significant penalties for failing to withhold the required amount, and administrative penalties may also apply.

What does this mean for vendors?

Australian resident vendors of relevant real property will need to apply for a clearance certificate and provide this to the purchaser before settlement to ensure no funds are withheld from the sale proceeds.

Vendors can apply for a clearance certificate at any time via the ATO's online application form.  Where the names of the registered proprietor and the taxpayer are consistent a certificate should be issued automatically within days.  Vendors should apply as early as practicable and check for consistency between ownership and tax records to avoid delays in the process.

A clearance certificate is valid for 12 months from the date of issue and can be used for multiple transactions, provided it is valid at the time the certificate is given to the purchaser.  If there are multiple vendors, each vendor will need to supply a clearance certificate to the purchaser.
Vendors will only receive credit for the tax withheld if the purchaser pays the relevant amount to the ATO.  Vendors should therefore ensure that appropriate contractual mechanisms are in place to cover these new obligations.

Significance to clients

This measure will need to be considered for every transaction involving Australian real property or any entity whose underlying value is principally derived from Australian real property.  The regime has broad application and will impact on a significant number of transactions, including where vendors are in fact Australian residents for tax purposes.

The Law Council of Australia, the Law Institute of Victoria and the Law Society of New South Wales have raised concerns about this initiative in a submission to the Federal Government, specifically that it will generate 'uncertainty, delays and a significant administrative burden' for Australians who purchase real estate with a market value of $2 million or more.
We will keep you informed if the ATO  issues rulings which exempt Australian government departments from the need to:

• obtain clearance certificates when they are a vendor; or
• remit the withholding tax to the ATO when they are a purchaser.

You can find out more on the ATO website.If you would like to discuss the impact on your department or agency, please contact:

Anthony Leggiero
Managing Principal Solicitor
03 9947 1430

Policeman defamed

Barrister who ran Tyler Cassidy website ordered to pay $150,000

The Supreme Court of Victoria decision Dods v McDonald shows that aggravated damages will be awarded where defamatory implications are grave and maintained without any apology offered.

Facts

Tyler Cassidy was 15 years old when he was shot by police in a park in Melbourne.  Colin Dods, the plaintiff, was one of the Victoria Police Members who fired at Tyler.  The plaintiff was exonerated of personal responsibility and was found not to have contributed to Tyler's death in findings which followed a coronial inquiry conducted in 2011.

The defendant, a Queensland based barrister, was aware of the Coroner's Court findings when he published two statements about the plaintiff's involvement in Tyler's death on pages of his website (which was focussed on Tyler's death) in 2012.  The plaintiff alleged that the natural and ordinary meaning of these statements included that: the plaintiff had executed, shot and killed, gunned down, and chose to shoot Tyler; used excessive force out of proportion to the threat posed by Tyler; and committed manslaughter by shooting Tyler.

The defendant denied the plaintiff's repeated requests for an apology although he did modify the relevant pages of his website and ultimately closed the website down.  After amending his defence a number of times prior to trial, the defendant denied that the publications were defamatory, denied that the plaintiff was entitled to aggravated damages and sought to rely on the defence of triviality (ie that it was unlikely in the circumstances that the plaintiff sustained any harm).  The defendant maintained the defence of justification (ie truthfulness) until shortly before the trial.

Decision

A jury found that the publications were defamatory and the defence of triviality was not established.

His Honour Justice Bell ordered that the defendant pay the plaintiff $150,000 in damages, including aggravated damages.  His Honour found that certain aspects of the defendant's conduct of his defence had been improper and unjustified and, even though the scope of publication had not been large, the jury had found that the defamatory content had been grave.

Read more about compensation awarded to a woman who was the subject of sexually explicit Facebook posts here or about the tweet that led to former Treasurer Joe Hockey being awarded $200,000 here.

If you would like to know more about the law of defamation please contact:

Max Steed
Solicitor

Anna English and Dianna Gleeson
Managing Principal Solicitors

Shining a light on innovation…

Everyone is talking about innovation - the Commonwealth Government wants us to be an 'innovation nation' and entrepreneurs like Elon Musk and Steve Jobs are the rock stars of our era.  Innovation is often associated with technology, investment banking and start ups.  Like all stereotypes, it tells only part of the story.  Some of the most interesting innovation is happening in our backyard - the Victorian public sector.

In addition to encouraging innovation in the private sector, the Victorian Government is encouraging the public sector to consider how we can perform our functions and deliver public services better. What is better depends on what you are trying to achieve - it might mean 'better', in the sense that a citizen gets the public service they need more quickly and easily; it might mean 'better', in the sense of more efficient use of public money; or maybe it means 'better' in the sense of a new function being performed that was previously thought to be impossible or outside of the capacity of the public sector.

The Victorian Government is supporting the public sector to act on their innovative ideas through:

• The Public Sector Innovation Fund provides funding support for pilot projects that test or prove new knowledge, technologies, processes or practices to deliver public value and that can be scaled or replicated across government.  Grants of $50,000 to $400,000 are available.
• At the Australian Information Industry Association iAwards, the Premier will award the inaugural iAward for Public Sector Innovation.The winner will be revealed on 1 September 2016.

Examples of projects already funded by the Public Sector Innovation Fund include:

• Code for Victoria Challenge, in which three teams of Code for Australia Fellows will be placed within government departments for six months . The Fellows will create new tools or streamline processes that will make government information more open and accessible online, and improve the delivery of government services.   The first round of the Code for Victoria Innovation Challenge recipients have just been announced this week. 
• The 2016 Budget Hack brought together the public sector, the tech community and industry leaders to find new and better ways to visualise, use and leverage data from the State Budget.  The winning entry, Bling My Suburbs, allows users to search budget information by suburb.  The other entries in the top three included Budget Pie, which allows a user to see how much funding was allocated to the issues affecting them (I.e. How much of the pie do my issues get?!), and Ask Budget, which uses a word cloud to identify how frequently an issue was mentioned and then summarises the mentions.

Many of the innovations are not complicated and nor did they require a Steve Jobs to think of them. Many of the examples of public sector innovation start with an idea or feedback from a citizen.  For example:

• Service Victoria is creating a 'one stop shop' for citizens looking for government information.  I tried it out on my sister, who is moving house this weekend. Through some simple questions asked of the website over dinner, my sister found the right places to change her driver's licence, find out who her new council and MPs are, when her hard rubbish collection is and how much her rates will be.  Service Victoria received additional funding in the recent State Budget, which will enable them to implement its objective of digitising more government transactions. 
• EPA AirWatch provides visual information on air quality on an hourly basis.  Using a Google map, the user can see the status of air quality at a monitoring station (Very Good, Good, Poor, etc) and then see a more detailed break down of the readings, including a health category.
• The online family violence intervention application form [] allows people to apply for intervention orders online, rather than by submitting a paper form.  The online format allows high risk cases to be flagged and brought to the attention of a magistrate earlier.  The form has been piloted at the Neighbourhood Justice Centre and, with a grant from the Public Sector Innovation Fund, will now be rolled out to the Magistrates' Court.

Innovation is also happening in government legal services.

• Government departments are exploring ways in which government can benefit from 'the new legal paradigm', in which technology and new business models are reducing legal costs and communication styles are changing.  Some departments have started the conversation with panel law firms.
• VGSO has appointed its first Innovation Counsel who has challenged and evangelised our lawyers to explore with government agencies how legal services can be delivered in ways that better meet the needs of government.

Everyone is talking innovation - and the Victorian public sector is doing innovation.  How is your agency innovating?  What do you think the public sector could do differently or better?  Tell us your thoughts in the comments.

To find out more please contact:

Katie Miller
Innovation Counsel

Andrew Suddick
General Counsel

Joanne Kummrow
Special Counsel

Shifting expectations - implications for the EPA and government agencies

The Government recently released the Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority (EPA).

The inquiry says its 48 recommendations are aimed at making the 'EPA of the future the strong protector of public health and the environment that Victorians expect - and need - it to be.'  The far reaching recommendations would modernise EPA's governing legislation and clarify its objective to protect human health and the environment.  The recommendations seek to clarify the EPA's role and strengthen the EPA's scientific base, functions and tools, as well as its governance structure and funding.

The impact of the report stretches beyond the EPA. The EPA's functions are shared with other agencies within the broader environment protection regime.  The recommendations are aimed at improving coordination mechanisms across this regime, clarifying EPA's role in emergency management, and better managing environmental risks in the land use planning system.

There are issues and themes of relevance for all public authorities contained in the report.  This is particularly so in relation to what the community expects from government services, the importance of government agencies sharing data and mechanisms for whole-of-government approaches to strategy, planning, problem solving and the delivery of services.  

EPA's role

The Report recommends several changes to the way the EPA interacts with other departments and agencies, including:

• Land use planning: The EPA should take on a more strategic role.  This would be achieved via statutory triggers requesting EPA advice and early involvement, for example in planning scheme amendment and rezoning processes.
• Emergency management: EPA's role should focus on providing expert advice to control agencies and aiding with prevention.
• Mining: EPA's role in mining regulation should be strengthened, akin to the role of WorkSafe.

Whole-of-government approach

The report recommends the introduction of a high level Environment Protection (Integration and Coordination) Act to improve coordination across government.  It suggests that effective institutional arrangements will require clearly defined objectives, appropriately allocated roles and responsibilities, and effective mechanisms to promote coordination.

Environmental protection is not the responsibility of just one agency.  The report identifies several situations in which the whole-of-government approach is necessary, including:

• development of policy around climate change, which will significantly impact the EPA, as well as other agencies involved in emergency management;
• development of policy around environmental justice and the relevant health and wellbeing concerns, through the Department of Environment, Land, Water and Planning; and
• a closer working relationship with the Department of Health and Human Services and the Chief Health Officer in relation to protecting human health.

This strategic and coordinated approach to problem solving and the delivery of government services was identified as something the community expected of the EPA, and of government generally.

Data sharing

Data sharing is an important issue closely tied to the need for a coordinated whole-of-government approach to environment protection more broadly.  An evidence base for decision making requires consistent and robust data, as well as having all parties 'at the table'.  There are data sharing initiatives already underway. However, the report recommends that the EPA and other agencies work toward improved systems for State-wide environmental monitoring, a spatial data system and reporting of health, environmental and liveability outcomes.

The Report recommends that the EPA develop a digital data, technology and analytics strategy to guide decision making.  Such improvements could aid data sharing across government as well as with stakeholders.  

Community expectations

It is clear that the changing landscape of stakeholder and community expectations of government have had a significant impact on the report.  The report envisages that the changing context of Victoria's environment, population and economy will lead to changes in stakeholder and community expectations of their environment, their local areas and the delivery of government services in the future.

The Government's response to the report is expected later in 2016.  For the Government's initial response please see here.  There may be significant changes underway for the EPA and the broader environment protection regime.  In the meantime, the report is a useful resource for all government agencies.

For further information on the outcomes of the Independent Inquiry into the EPA and its implications, please contact:

Natasha Maugueret
Managing Principal Solicitor
8684 0402
natasha.maugueret@vgso.vic.gov.au

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

Annette Jones
Principal Solicitor
03 8684 0431
annette.jones@vgso.vic.gov.au

When can you leave the past behind you?

In recent weeks, attention has been drawn to a federal election candidate in Western Australia who did not declare two spent convictions to the political party that had endorsed him as its election candidate.  The candidate has now been disendorsed by the political party and lost the opportunity to run for a seat in the Federal Parliament.
Aside from heightened scrutiny of candidates at election time, this situation raises a simple question, that does not always have a clear answer: what is a 'spent' conviction?  And in what circumstances does a person need to disclose such information to a government agency, employer or a non-government organisation?

The short answer is (in part) it will generally depend on the nature of the offence, when and where the offence was committed, and to what organisation or who you are providing the information.

What may surprise is that there is no spent conviction legislation in Victoria or formal rules that govern the disclosure of criminal history information.  However, Part VIIC of the Crimes Act 1914 (Cth) sets out the Commonwealth Spent Conviction Scheme.  All other jurisdictions in Australia have spent conviction schemes.

Victoria

A person's history of any Victorian criminal convictions are held by and accessed through Victoria Police.

While Victoria has recently passed legislation which provides for the expungement of certain historical homosexual offences, it does not have a general statutory regime dealing with spent convictions.

However, Victoria Police has an Information Release Policy that it applies to requests for an individual's criminal conviction history.

The Information Release Policy states that, save for certain exceptions, no details of a prior offence will be disclosed if 10 years has passed since an adult was last found guilty of an offence.  A five year waiting period applies for persons under 18 years of age.  Therefore, details of a person's prior convictions will generally not be disclosed by Victoria Police in a criminal history check once the relevant waiting period has lapsed, and in the absence of further offending.  However, an individual's criminal history remains in the records of Victoria Police.  As such, despite the Information Release Policy, Victoria Police may exercise its discretion and disclose criminal history information depending on the purpose for which the information is sought and to whom it will be disclosed (e.g. where the information is required for employment with children, the elderly or disabled persons).

Commonwealth

While Victoria does not have spent conviction legislation, Victoria Police’s Information Release Policy operates, in practice, in a similar way to the Commonwealth’s Spent Conviction Scheme in Part VIIC of the Crimes Act 1914.

Section 85ZM of the Crimes Act 1914 provides that a person's conviction for an offence will be spent if:
(a)  the person has been granted a pardon for a reason other than the person was wrongly convicted of the offence; or
(b)  the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended .

The scope of a person's rights and obligations under the scheme varies depending on:

• whether the conviction is for a Commonwealth, state, territory or foreign offence
• who or what type of authority or organisation knows or is being told about a spent conviction (ie a government authority or a non-government organisation)
• where the person being told is located.

Generally, the Commonwealth scheme permits a person to not disclose a spent conviction:

• to any person located in a state or territory of Australia a spent conviction for a Commonwealth offence;
• to a Commonwealth authority a spent conviction for a state, territory offence or foreign offence.

The scheme also operates to allow a person to say under oath that they have not been charged with or convicted of an offence.

However, some categories and positions of employment are excluded from the Commonwealth scheme and require that a person must declare all convictions when applying for certain positions (eg a law enforcement agency has a right to information about a person's spent convictions for the purpose of making decisions in relation to prospective employees and contractors).

Other jurisdictions

In order to determine what a person’s rights are in relation to non-disclosure of a state or territory offence in Australian jurisdictions other than Victoria, the relevant spent conviction legislation will need to be consulted.

Take home points for individuals and government authorities

When determining whether they must disclose information about a prior conviction, individuals need to carefully consider where the offence was committed, the nature of the offence, how serious it was and what period of time has passed since it was committed.  While there can be a tension between a person disclosing their prior conviction history and their ability to put their past offending behind them and privacy, in some cases, disclosure of prior convictions will always be required, or at least expected, given the reason or purpose for which they are disclosing the information.  For individuals, ensure you read the fine print on what you are required or expected to disclose about your history of prior convictions and/or disciplinary offences to a government authority or non-government organisation.

Government authorities should ensure their application and consent forms clearly advise members of the public why and when they are required to disclose their prior conviction history, including what if any spent conviction scheme applies (including relevant exceptions) and how the information will be used.  Government authorities should also ensure they comply with privacy and data protection legislation when collecting information about a person's prior convictions.  This includes having privacy policies on how such information may be collected, used and disclosed.

Further information

- Victoria Police, National Police Certificates-Information Release Policy (2016)
- Part VIIC, Division 6 of the Crimes Act 1914 and Regulations 7A and 8 and Schedule 3 of the Crimes Regulations 1990
Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014

Joanne Kummrow
Special Counsel

Michael Williams
Solicitor

The Victorian Government Land Transactions Policy and Guidelines

The Victorian Government has recently released its new Land Transactions Policy and Guidelines (Policy and Guidelines).

The Policy sets out what is required of Victorian Government agencies when they buy, sell or lease land. It also sets out what is required when agencies provide compensation under the Land Acquisition and Compensation Act 1986 and Part 5 of the Planning and Environment Act 1987.

The Guidelines provide information and guidance to assist agencies to comply with the Policy's requirements.

The Policy's requirements apply to:

• Victorian Government departments;
• public statutory authorities;
• legal entities established under State legislation for a purpose of the State (including those independent of government control);
• companies in which the State has an interest; and
• organisations, other than councils, which require statutory authorisation and/or ministerial approval, especially where public funds are involved in a land transaction.

Background

The Policy and Guidelines replace the Victorian Government's Policy and Instructions for the purchase, compulsory acquisition and sale of land (Instructions), which were adopted by then-Minister for Planning, the Hon John Thwaites MP, in August 2000.

The Instructions were intended to ensure that Victorian Government agencies adopt 'a consistent best-practice approach to their property transactions.'

Introduction to the Policy

The core elements of the Policy are consistent with the old Instructions. Agencies generally must not sell any land at a price less than its current market value, or buy any land at a price greater than its current market value. For this purpose, agencies must obtain valuations from the Victorian Valuer-General (VGV). Agencies also require the approval of the Victorian Government Land Monitor (VGLM) for any transaction (or group of related transactions) where the value of that transaction is $750,000 or more. There are a range of procedural requirements for the sale of land. Agencies generally may only sell land through a public process, and must provide clear information to prospective purchasers as to potential uses to which the land may be put.

Key differences from the old Instructions

The Policy and Guidelines introduce some important changes, and provide greater clarity or renewed emphasis about particular matters.

First, the Policy now regulates leases. Agencies may only grant or acquire leases or other interests in land at market rental value or better, as determined by the VGV. An agency also must not grant a lease of land which contains an option to purchase, unless the lease is granted to another government agency. However, the Guidelines exempt significant categories of leases (at section 10.2). The Policy also does not apply to licences.

Secondly, the Policy places clearer assurance obligations on agencies to ensure that all transactions are conducted to achieve accountability and transparency. In relation to accountability, the Guidelines state that an agency must ensure that:

• it has the legislative power to undertake the land transaction;
• it has obtained all necessary approvals to proceed with the transaction;
• appropriate delegation is in place where it is proposed an authorised officer of the agency approve and execute the transaction; and
• roles, responsibilities, authority and accountability of agency officers involved in the transaction are clearly articulated and well understood.

In relation to transparency, land transactions must be supported by processes that provide evidence of transparency of actions, equity in dealings, confidentiality, probity assurance and management of conflicts of interest.

Third, the Policy and Guidelines provide more detailed guidance on the requirement for agencies to conduct an appropriate level of due diligence. Prior to the disposal, acquisition or lease of land, agencies must conduct an appropriate level of due diligence to ensure they are fully informed of the status and attributes of the land. The depth of due diligence required will vary from transaction to transaction, but the Guidelines cover the following areas:

• legal (specifically, ownership of and authority to deal with the land, and any encumbrances on the land);
• public land values (in respect of Crown land);
• survey;
• planning;
• contamination and pollution;
• cultural heritage; and
• Native Title and Traditional Owner Rights.

The Guidelines provide a helpful due diligence checklist in Appendix 1, to assist agencies in becoming fully informed as to the status and attributes of the relevant land. Appendix 2 contains a VGLM checklist, to assist agencies in deciding when to seek approval or assistance from the VGLM.

Fourth, the Policy sets out clearly the circumstances in which it does not apply to particular transactions. The Policy provides a list of exempted transactions in section 2(d).

A full copy of the Policy is available on the website of the Department of Environment, Land, Water and Planning at http://www.dtpli.vic.gov.au/property-and-land-titles/valuation/government-valuations/government-land-monitor. We understand that the Department of Environment, Land, Water and Planning and the VGV will be promoting the Policy and Guidelines in coming months.

In the mean time, if you would like further advice on the new Policy and Guidelines, please contact:

Anthony Leggiero
Managing Principal Solicitor
Property Team
9947 1430
anthony.leggiero@vgso.vic.gov.au

Mark Egan
Acting Managing Principal Solicitor
Land Acquisition, Planning and Environment Team
8684 0489
mark.egan@vgso.vic.gov.au

Margaret Marotti
Managing Principal Solicitor
Property Team
9947 1410
margaret.marotti@vgso.vic.gov.au

Elizabeth Wortley
Senior Solicitor
Property Team
9947 1433
elizabeth.wortley@vgso.vic.gov.au

Moving forward with information sharing

Many public servants would have tuned in to an episode of ABC's satirical comedy Utopia, in which the fictional Nation Building Authority muddles its way through an FOI request. FOI is an important part of government accountability and transparency.  The episode reminds us that responding to FOI requests can be complex.  This handy guide provides a quick reminder of the key steps to follow when processing an FOI request.  While FOI requests can be made to both agencies and Ministers, this post primarily deals with the former.

FOI in Victoria is regulated by the Freedom of Information Act 1982 (FOI Act), the Freedom of Information Regulations 2009 and the Freedom of Information (Access Charges) Regulations 2014. 

Practical assistance is also provided by the Attorney-General Guidelines on the Responsibilities and Obligations of Principal Officers and Agencies (December 2009).  Regard should also be had to the Attorney-General's Freedom of Information Professional Standards (2014).

Steps in processing an FOI request

1.      What are the criteria for a valid request?

The first step is to determine whether a request is valid under s 17 of the FOI Act.  A request will be valid if it is:

         in writing;

·         provides information to enable identification of the documents; and

·         encloses the application fee, which may be waived or reduced if it would cause hardship to the applicant.

The application fee is 2 fee units, which currently totals $27.20. 

If a request is not valid, the agency has a duty to assist the applicant to make a valid request or direct a request to the appropriate agency (s 17(3)).

2.      How quickly must a request be processed?

Once an agency receives a valid FOI request, all reasonable steps must be taken to notify the applicant of the decision as soon as possible and no later than 45 calendar (not business) days after the request was received (s 21).  

If you work for an agency and receive an FOI request, but you are not an FOI officer, you should forward the request to the appropriate person in your agency.  You can find out who the FOI officer is by looking in your agency's 'Part II' statement.  This is a reference to Part II of the FOI Act, which requires that certain information is published and available to the public.  As an example, the Part II statement of the Department of Justice and Regulation is available online here. 

3.      What if a request is voluminous?

An agency may refuse access to documents if the request is so voluminous that processing it would divert the agency's resources substantially and unreasonably from its other operations (s 25A(1)(a)).  Before refusing a request for this reason, the agency must contact the applicant and offer to assist him or her to make the request in a form that would remove this ground for refusal (s 25A(6)).

4.      How is a request processed?

Once a request is assessed as valid, a thorough and diligent search must be conducted to locate all documents within the terms of the request.  This search can be conducted by the relevant business area of an agency under the supervision of the FOI officer.

'Document' includes a document in writing, as well as maps, plans, graphs, drawings, photographs, sound tracks, film, and any words, figures, letters or symbols which have meaning (s 5).

If the search does not return any relevant documents, the agency may determine that they do not possess any documents that fall within the terms of the request.

5.      What exemptions may apply to a document?

An applicant is not entitled to a document (or a part of a document) if an exemption applies to that document (or that part of a document).  Each document must be reviewed to determine if all or any part of a document may be exempt.  If an exemption applies, consideration must be given to whether the document can be released with exempt matter redacted (s 25).

Exemptions include:

·         Cabinet documents (s 28)

·         documents containing matter communicated by the Commonwealth or any State or Territory (s 29)

·         documents affecting national security, defence or international relations (s 29A)

·         documents of Court Services Victoria (s 29B)

·         internal working documents (s 30)

·         law enforcement documents (s 31)

·         documents affecting legal professional privilege (s 32)

·         documents affecting personal privacy (s 33)

·         commercial information of a third party or where the agency is engaged in trade and commerce (s 34)

·         documents containing material obtained in confidence (s 35)

·         disclosure contrary to the public interest (s 36)

·         certain documents arising out of companies and securities legislation (s 37)

·         documents to which secrecy provisions apply (s 38)

·         Council documents (s 38A)

Many of the above exemptions contain a public interest test, which is designed to balance competing factors in favour of either providing or preventing access to documents.

6.      What decisions may an agency make in respect of a document?

After any applicable exemptions have been identified, a decision must made as to whether to:

·         exempt a document in full;

·         release a document in part (with exempt material deleted); or

·         release a document in full.

Even if a document is to be released in part or in full, an agency may defer access if the document has been prepared for presentation to Parliament or a Council or for release to the press (s 24).

Notice of the decision must be provided in writing to an applicant (s 27) and must include:

·         the findings on any material questions of fact (eg, if an exemption applies), the material on which those findings was based, and the reason for the decision;

·         the name and designation of the person making the decision;

·         whether exempt information has been deleted from a document; and

·         information about the right to seek a review of the decision, including where to seek review and the time limit for seeking review.

7.      How can an FOI decision be reviewed?

After an agency has provided notice of a decision under the FOI Act to an applicant, he or she has 28 days to apply to the Freedom of Information Commissioner for review of the that decision (ss 49A, 49B).  However, the following decisions are not reviewable by the FOI Commissioner:

·         a decision made by the Minister or the principal officer of any agency (s 49A(3));

·         a decision refusing access to a document on the basis of the exemption under s 28, namely Cabinet documents (s 49A(4)); and

·         a decision refusing access to a document on the basis of the exemption under s 29A, namely documents affecting national security, defence or international relations (s 49A(4)).

A decision of the Commissioner is in turn reviewable by the Victorian Civil and Administrative Tribunal (ss 50(1)(b) and (c)).  An application to the VCAT must be made within 60 days of notice of the decision (s 52).

Applicants may also apply to VCAT for review of the following decisions:

·         a decision of the principal officer of an agency or a Minister refusing to grant access to a document in accordance with a request (s 50(1)(a));

·         a decision of an agency refusing to grant access to a document in accordance with a request, if the FOI Commissioner has made a determination under s 49G(1) not to accept an application for review or has dismissed a review (s 50(1)(d)).

·         a decision of an agency refusing to grant access to a document that is claimed to be exempt under s 28 (Cabinet documents) or s 29A (documents affecting national security, defence or international relations) (s 50(1)(e)).

·         a decision under s 24 by the principal officer of an agency or a Minister deferring the provision of access to a document (s 50(1)(f)).

·         a decision as to the amount of a charge that is required to be paid before access to a document is granted, if the FOI Commissioner has certified that the matter is one of the sufficient importance for VCAT to consider (s 50(1)(g)).

A decision of VCAT is also reviewable by the Supreme Court on an error of law.

Proposed Office of the Public Access Counsellor

The Government has also indicated its intention to create a new Office of the Public Access Counsellor, which will replace the Office of the FOI Commissioner.  The Special Minister of State has informed the Legislative Council that the Office will be established in 2016 and work has commenced to prepare the required legislation.  

The Office of the Public Access Counsellor will:

•  have the ability to review ministerial and departmental decisions to not release documents under the Cabinet-in-Confidence exemption;
• set FOI standards; and
• have a broader mandate to help Victorians understand how to access government information.

VGSO's FOI experts can help Victorian government bodies to respond to FOI requests.  We can also assist with reviews of an FOI decision before the FOI Commissioner, VCAT or the Supreme Court.

Janine Hebiton

Managing Principal Solicitor

8684 0450

janine.hebiton@vgso.vic.gov.au

Michele Rowland

Principal Solicitor

8684 0413

michele.rowland@vgso.vic.gov.au

Thank you for not smoking

Think you have a right to smoke? Turns out you don't - or at least, not if you're on the premises of Thomas Embling Hospital, where a decision to implement a complete smoking ban was recently upheld by the Supreme Court in De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111.

The plaintiff's case 

Thomas Embling Hospital is a forensic psychiatric hospital whose patients include persons found unfit to plead or not guilty of a crime by reason of mental impairment. The plaintiff was found not guilty of the murder of his mother by reason of insanity in 1989, and has been an involuntary patient of the Hospital since the year 2000.

The plaintiff sought to challenge the Hospital's decision to implement a smoking ban on its grounds by arguing, amongst other things, that the Hospital had breached section 38 of the Charter of Human Rights and Responsibilities Act 2006. That section requires public authorities to act compatibly with human rights, and to give proper consideration to relevant human rights when making decisions. The Attorney-General, represented by the VGSO, intervened to make submissions on the application of the Charter.

The plaintiff argued that the smoking ban affected the right of all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person (s 22(1) of the Charter), the right of an accused person or a person detained without charge to be treated in a way that is appropriate for a person who has not been convicted (s 22(3)), and the right not to be subjected to medical treatment without consent (s 10(c)). He also raised the property right (s 20), as he was concerned that the Hospital proposed to confiscate his smoking paraphernalia.

The decision

The Hospital and the Attorney-General argued that none of the rights identified by the plaintiff were engaged by the smoking ban. Justice Riordan agreed, finding that the ban was a comprehensive, properly considered policy adopted after extensive consultation with patients, and although it was likely to cause some distress to the plaintiff, its purpose was to protect patients, staff and visitors from the harmful effects of smoking.  It did not interfere with the plaintiff's dignity or humanity, and further, it did not constitute 'medical treatment' as it did not involve any direct interference with the body or state of mind of an individual.

His Honour found that the plaintiff was neither 'accused' nor 'a person detained without charge' for the purposes of the right in s 22(3), and even if he were, the smoking ban did not constitute inappropriate treatment for an unconvicted person. Finally, his Honour held that the right to property was not engaged because there was no evidence that Mr de Bruyn would be permanently deprived of his smoking paraphernalia. The plaintiff's application was dismissed.

What is 'proper consideration'?

Justice Riordan's decision includes a helpful summary of what it means to give 'proper consideration' to relevant human rights. Key things for decision-makers to remember are:

• You must seriously turn your mind to the possible impact of a decision on a person's human rights.
• If the decision may limit rights, you must identify the countervailing interests or obligations that would justify the limit.
• It's not enough to provide a 'pro forma' explanation of the impact on Charter rights - giving human rights proper consideration is more than just a box-ticking exercise.
• On the other hand, you don't need to identify the 'correct' right or specific Charter provision, or explain the content of a right by reference to legal principles or jurisprudence. You only need to identify in general terms the nature and extent of the effect on the person's rights.
• After identifying the actual rights affected, you must balance the competing private and public interests to determine if any limit is justifiable. There is no formula for this exercise - it will depend on the circumstances. Justice Riordan reiterated earlier judicial statements that this process should not be scrutinised overzealously by the courts.

Consider the evidence

The Hospital's evidence in this matter, which included evidence that the Hospital had consulted extensively with patients and sought specific legal advice on Charter issues, is a great example of a public authority being able to show genuine attention being given to Charter rights.

Of course, this level of evidence won't always be necessary, particularly for day-to-day decisions with only minor rights impacts. However, if you're making a decision that will affect human rights, it's helpful to think about how you might demonstrate that you've given those rights proper consideration in case it later becomes an issue. Depending on the nature of the decision, you may find that a quick file note, a chat with the affected person could save a lot of trouble down the track. For more significant interferences with rights, you may wish to consider preparing a formal rights impact assessment, or even seeking legal advice to ensure that your decision is compatible with your obligations under the Charter.


If you work in the Victorian public service and require further information on this case or advice on your human rights obligations, please contact:

Eleanor Thomas

Senior Solicitor

8684 0425      

Catherine Roberts

Managing Principal Solicitor

8684 0247