Monday 23 May 2016

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.

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.

Managing Principal Solicitor
8684 0450

Principal Solicitor
8684 0413

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:

    Senior Solicitor
    8684 0425      

    Managing Principal Solicitor
    8684 0247

    Friday 13 May 2016

    What to do if you are contacted by IBAC

    Since being established in 2012, the Independent Broad-based Anti-corruption Commission's (IBAC) operations are in full swing. It has conducted a range of both private and public investigations. VGSO has advised the State on each of the first three public examinations by IBAC:

    • 'Operation Fitzroy' into allegations of serious corruption in the former Department of Transport and Public Transport Victoria;
    • 'Operation Ord' into alleged serious corruption at the Department of Education and Training; and
    • 'Operation Dunham' into the Department of Education and Training’s $180 million Ultranet project.
    In the course of conducting its investigations, IBAC may, among other things, issue a witness summons or a confidentiality notice. As a public servant receiving such documents from IBAC, what should you do?

    I have received a witness summons. What do I do?

    A witness summons from IBAC may require you to attend and give evidence at an examination and/or produce documents or other things to IBAC. The examination may be conducted in private or public, or both.

    If the summons is for an examination, the summons will state:
    • your rights and obligations in respect of the examination;
    • whether the examination will be held in private or in public; and
    • the matters you will be asked to discuss at the examination.
    If you receive a witness summons:
    • You must comply with the summons. It is an offence to fail, without reasonable excuse, to comply with a summons.
    • You may seek legal advice in relation to the summons without breaching any confidentiality notice that may accompany the summons (refer below).
    • You may bring a lawyer to the examination. A lawyer can advise you during the examination and assist you to claim any rights and protections. A lawyer cannot answer questions on your behalf.
    • You may discuss your examination and the IBAC investigation with other persons, except where:
      • you receive a confidentiality notice (refer below);
      • you receive a draft report;
      • ordinary obligations as a public sector employee prevent you from disclosing the information; or
      • the other person may also be called as a witness. Discussing your evidence with a potential witness may compromise the integrity of your answers to IBAC and the integrity of IBAC's investigation. It is an offence to hinder an investigation, including by colluding with other witnesses.

    I have received a confidentiality notice. What do I do?

    A confidentiality notice is a notice that requires you not to disclose the matters specified in the notice. You may receive a confidentiality notice if IBAC determines that the disclosure of certain matters would be likely to prejudice IBAC's investigation or a person's safety, reputation or fair trial. In our experience, confidentiality notices are not uncommon during an IBAC investigation.

    If you receive a confidentiality notice:
    • You cannot discuss with anyone the matters specified in the notice, unless IBAC authorises this, or it is necessary to comply with the notice, or to obtain legal advice. It is an offence not to comply with a confidentiality notice.
    • You may only disclose to another person a matter specified in the notice:
      • if you are directed or authorised by IBAC to do so;
      • if it is necessary in order to obtain any information, document or other thing that you need to comply with a witness summons or confidentiality notice; or
      • subject to some restrictions, to obtain legal advice or representation in relation to a witness summons or confidentiality notice.

    In such circumstances, you will need to provide the other person with a copy of the confidentiality notice at the time of disclosure. They will also need to comply with the confidentiality notice.

    • You may also disclose a matter specified in the notice if it has already been lawfully made public, either in an IBAC report or otherwise.

    If you are an employee of the Victorian Government and have received a witness summons or confidentiality notice from IBAC and would like legal advice about your rights and obligations, contact your in house legal department in the first instance.

    Eliza Bergin
    Principal Solicitor
    8684 0267

    Greg Elms
    Managing Principal Solicitor
    8684 0414

    Katie Miller
    Innovation Counsel
    8684 0268

    Wednesday 4 May 2016

    Superannuation - just for employees?

    Some contractors are entitled to be paid superannuation or their principal will be liable for the superannuation guarantee charge.

    On a couple of occasions recently, we have found that this obligation to pay superannuation has been overlooked when a standard template contract has been used to engage a service contractor. 
    Template contracts often assume agreements will be reached with a body corporate or that a single one-off service will be provided.  Trouble arises when an individual contractor is engaged for their labour for an extended period of time.

    The extended definition of 'employee' in the SGA Act
    Sub-section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (SGA Act), extends the definition of employee beyond the traditional employment relationship to include certain contractors.  The extended definition of 'employee' provides that:

    • If a person works under a contract that is wholly of principally for the labour of the person, the person is an employee of the other party to the contract.

    The Australian Taxation Office Superannuation Guarantee Ruling (SGR 2005/1) provides guidance as to the operation of this sub-section and indicates that it will extend to contracts for services where an individual contractor is engaged either wholly or principally for their labour.
    The approach taken by courts and tribunals has been to consider the following three questions, with reference to the terms of the contract and the conduct of the parties subsequent to the contract:

    • Is the contractor remunerated either wholly or principally for their personal labour or skill?
    • Does the contractor perform the contractual work personally?
    • Is the contractor paid to achieve an outcome or result?

    If the answer to the first two questions is 'yes', and the answer to the third question is 'no', the contractor will come within the extended definition of employee in sub-section 12(3) of the SGA Act and the employer will be obliged to pay superannuation contributions on that contractor's behalf.

    Cost to employers
    If an employer has an obligation to make superannuation payments to a contractor under sub-section 12(3) of the SGA Act and has not done so, the employer will be required to pay to the Australian Taxation Office the applicable Superannuation Guarantee Charge.

    What should employers do?
    Employers should consider inserting into their template service contract an optional superannuation clause to serve as a reminder to give consideration to this issue before agreeing on amounts payable and finalising the contract. 
    Where possible the contract should also include provisions that make it clear that the contractor is able to sub-contract or delegate the work, or payments should be structured so that the contractor is paid for achieving a particular task instead of being paid at hourly rates.
    If you are a Victorian public sector employer and would like more information about your obligation to make superannuation payments on behalf of service contractors, please contact:

    Jacqueline Parker
    Assistant Victorian Government Solicitor
    9032 3011

    Rosemary Robins
    9032 3036

    Monday 2 May 2016

    Social media - when can you dismiss a public sector employee for inappropriate comments?

    The Fair Work Commission has recently handed down a decision that sheds light on the circumstances in which a public sector employer can (and cannot) dismiss an employee for his or her comments on social media  (Starr v Department of Human Services [2016] FWC 1460 (29 March 2016)).

    While the decision is subject to appeal, the result at first instance shows that the path to dismissing an employee on the grounds of inappropriate social media comments is not always smooth.

    The Facts

    The Commonwealth Department of Human Services (DHS) terminated the employment of a Centrelink officer when it found that he had made a number of negative comments relating to his work on social media.

    Over a three year period, the employee had posted numerous adverse comments about Centrelink and its customers in online forums such as 'Whirlpool' and 'Sportal'.

    Following a misconduct investigation,  DHS found that the employee's negative and inappropriate comments on social media had breached s 13 of the Public Service Act 1999 (Cth), including by breaching the Australian Public Service Values and Code of Conduct and Centrelink's Social Media Policy, and had brought Centrelink's reputation into disrepute.

    Offensive online posts a valid reason for dismissal

    The Commission found that the following posts by the employee gave rise to a valid reason for his dismissal:

    • Posts in which the employee referred to DHS's clients as "spastics and junkies", "whinging junkies" and "junkies";
    • Posts in which the employee commented that a large proportion of clients seeking exemption from the work search requirements of Newstart did not have genuine reasons for doing so; and
    • Posts in which the employee stated that DHS's processing times were "utterly disgraceful", that he was "embarrassed to work there" and "there isn't a damn thing those of us in the offices can do about it".

    However, the Commission rejected DHS's submission that the employee's criticism of the Government itself constituted a valid reason for his dismissal. The Commission held that the relevant sections of the Public Service Act were not sufficiently clear and unambiguous to entirely displace public servants' common law rights to freedom of expression and political communication.

    Dismissal unfair despite valid reason

    Despite the Commission agreeing that there was a valid reason for the dismissal, it ultimately found that the dismissal was harsh in the circumstances.  The Commission arrived at this finding because of:
    • The lack of evidence to substantiate actual damage to the reputation of DHS by the employee's posts;
    • the 'situational' and 'impulsive' nature of the employee's posts, which were found to have been 'made out of frustration and not maliciously' rather than in a deliberate attempt to 'publically damage the reputation of [DHS]';
    • the employee's genuine remorse and regret for his conduct; and
    • the employee's 20 years of service and limited alternative job prospects.

    Having found the dismissal to be unfair, the Commission ordered that the employee be reinstated.
    No orders were made in relation to lost remuneration as the Commission considered that any loss of income constituted a 'suitable sanction' for the employee's improper conduct.

    We understand that the decision is now subject to appeal by the DHS.

    Key lessons for public sector employers

    • The mere fact that a public servant has made inappropriate or political comments on social media may not be sufficient to warrant dismissal.
    • Training employees on a social media policy may bolster an employer's defence to an unfair dismissal claim.
    • In weighing up whether a public employee has breached his or her duties, it will be important to analyse whether the impugned conduct has actually compromised the employee's work or damaged the employer's interests or reputation.  Just because an online post is embarrassing or offensive, it may not have sufficient impact to warrant dismissal.
    • In all cases, employers must weigh up the nature and gravity of the conduct against factors such as the length and quality of the employee's service, the frequency and extent of any offensive comments and the circumstances in which the comments were made.

    We’ll provide an update when the Full Bench hands down its decision.

    For more information please contact:

    David Catanese
    Managing Principal Solicitor
    9032 3040

    Nicole Lorenz
    9032 3051