Progress on National water reform and future reform priorities

VSGO has a dedicated Land, Planning and Environment Practice Group.  Recently the Group heard Jane Doolan of the Productivity Commission speak about the Commission's inquiry into National Water Reform.

If you haven't had the chance to look at the draft report, we've summarised the key points in this blog.

National Water Reform 

Earlier this year the Productivity Commission launched a major review of Australian water reform and on 15 September 2017 the Commission released its draft inquiry report into National Water Reform. The purposes of the national inquiry report canvass an assessment on Australia's progress on national water reform such as how past water policy decisions have been made and how effective those decisions have been. In particular the report highlights Australia's water reform achievements and progress over the last 20 to 30 years. The inquiry has also developed draft future reform priorities in water resource management and rural and urban water services. The aim is to ensure the water sector's effectiveness and efficiency through 'consistent and coordinated regulatory and management arrangements that are aligned with the National Water Initiative' (NWI). An aim of the report is to ensure that future policies will reflect significant challenges facing the water sector such as population growth, climate change and community expectations and dependence on water environments. 

Australian Water Reform 

The Commission report identifies Australia's water sector as an international world leader in water management. It goes on to highlight the importance of a coordinated and thoughtful approach to water management, particularly given Australia's arid environment and reliance on our water economy. 

Australia's national approach to water reform began in 1994 through the COAG water reform framework and has continued through subsequent initiatives such as the introduction of the Water Act 2007 (Cth) and the Murray-Darling Basin Plan in November 2012; however the cornerstone of Australia's water reform efforts has been the 2004 NWI. 

Progress and achievements 

The report identifies that National water reforms have significantly improved Australia's approach to water management. The report endorses the continued national relevance of the NWI and its principles, emphasising that the NWI's objectives and outcomes have largely been met however notes that progress has slowed in recent years. Examples of such progress include the development of key foundations of water management such as the:

• creation of legislative and policy frameworks which provide for clear and long-term water entitlements for consumptive uses
• establishment of water planning arrangements for the majority of areas of intensive water use across Australia
• establishment of water markets which allow water to be traded to higher value uses 
• implementation of water resource accounting such as water metering
• provision of integrated management of water for environmental sustainability purposes in most jurisdictions.

The report also identifies the improvement of urban water and irrigation infrastructure services as a consequence of improved institutional and pricing reforms.

The Commission further identifies that overall water reform has delivered significant benefits to irrigators, other water users and the broader community.

Why is reform required? 

Along with identifying progress made to date the Commission report identifies further work required by the Government such as:

• actioning unmet NWI objectives and outcomes; 
• addressing gaps and limitations in existing NWI policy settings highlighted by the Millennium Drought; and 
• responding to the challenges which have emerged in the 13 years since the NWI was signed. The challenges are posed by population growth, climate change and changing community expectations and need to be addressed in policy frameworks. 

It is these gaps in current water policy that form the rationale for the recommended reform priorities. 

Future reform priorities

The report identified the following reform priorities: 

• maintaining the key foundations of water management; and 
• improving and enhancing national policy settings in areas such as entitlement and planning arrangements for extractive industries, and the water requirements of Indigenous people. 

Of importance are recommendations to revise existing policies such as the current arrangements for extractive industries and incorporating alternative water sources. 

Final Report 

The final report was handed to the Australian Government on 19 December 2017. The release of the final report by the Government is the final step in the process. 

Resource

National Water Reform Report: https://www.pc.gov.au/inquiries/current/water-reform/draft

VGSO frequently assists regulators and authorities with advice on policy implementation and legislative developments.  VGSO also assists with intergovernmental agreements, memoranda of understanding, and responses to inquiries.  For a discussion of the services VGSO can provide in this area, please contact Annette Jones, Acting Managing Principal Solicitor, or Natasha Maugueret, Managing Principal Solicitor. 

Natasha Maugueret

Managing Principal Solicitor

natasha.maugueret@vgso.vic.gov.au

8684 0223

Annette Jones

Acting Managing Principal Solicitor

annette.jones@vgso.vic.gov.au

8684 0431

Royal Commission into Institutional Responses to Child Sexual Abuse releases final report

The Royal Commission into Institutional Responses to Child Sexual Abuse has today delivered its final report to the Governor-General. The final reports details the Commission's conclusions and recommendations, and cover a broad range of issues relating to both government and institutions.  Some parts of the report have been suppressed because their release would compromise the criminal investigation into the perpetrators involved.

At the final sitting in Sydney yesterday, Justice McClellan spoke of the former Prime Minister Julia Gillard's announcement of the Royal Commission on 12 November 2012, the Attorney-General's agreement to establish the Royal Commission and the issuing of its Letters Patent on 11 January 2013 and the first private sessions held on 3 April 2013.

Since then, the Royal Commission has heard from over 8,000 survivors and received reports of abuse occurring in more than 4,000 institutions across Australia.  Those institutions were observed to display a common theme: a culture in which the best interests of children were not a priority.  Instead, in many cases, the protection of the reputation of the institutions and the abusers were the priorities.

Justice McClellan reflected on the stories of personal trauma and tragedy of the survivors, acknowledging that it was impossible not to share the anger of victims in the face of what is for many, a trauma they can never escape.  He spoke of the Commissioners having witnessed the resilience of survivors and their steps towards recovery.  He acknowledged that the work of the Commission has been stressful and confronting.  He stated that the survivors have had a profound effect on the Commissioners and that they deserve the thanks of all Australians.

Survivors have contributed to a large volume of work, Message to Australia, to ensure that survivors' stories are never forgotten.  The National Library of Australia and the Library of each State and Territory will be the custodians of this book.

The Commissioners thanked the governments and all of the institutions and individuals who participated in their various consultation processes, including many roundtables, which assisted the Royal Commission in developing its recommendations.  Justice McClellan noted that many institutions and government agencies accepted that they had failed and engaged constructively with the Royal Commission in discussions about how they should change.

The Royal Commission has already provided three policy reports to government: Working with Children Checks, Civil Litigation and Redress, and Criminal Justice.


Link to final sitting address and its transcript.

Amie Herdman
Principal Solicitor

Peter Psarakis 
Solicitor

Heritage Update: Increased protection and reduced regulation

On the 1 November 2017, the Heritage Act 2017 (the Act) came into operation.  The new Act replaced the Heritage Act 1995, with alterations designed to increase the level of protection provided for places and objects of cultural heritage significance, while reducing regulatory processes.

Some of the most significant changes are described below.

Improved process for heritage registration

The Act has introduced changes to the heritage registration process, including:

• The Executive Director, Heritage Victoria may now refuse a nomination that has 'no reasonable prospect of inclusion in the Heritage Register' (s 29(1)).  However, such a refusal may be reviewed by the nominator (s 30).   
• There are further procedural variations, including a new 90 day time limit for Heritage Council hearing determinations (s 49(2)). 

Simplified process for permits

The Act has introduced changes to the process for obtaining permits, including:

• There is a greater role for local heritage issues, by requiring consideration of local government submissions in determining applications (s 101(2)(c)) and in review (s 108(5)).  
• The Executive Director is no longer required to consider 'undue financial hardship' of refusal, however the requirement to consider reasonable and economic use of the place remains (s 101(2)(b)).    
• The Heritage Council has broader powers on review, and is now able to set aside a determination and make a substituted determination (108(7)(c)). 
• There is a streamlined process for subdivision, with an exemption for works which comply with a permit of subdivision under the Planning and Environment Act 1987, where the Executive Director was a referral authority (s 91).

Strengthened enforcement and compliance

The Act has also introduced stronger enforcement and compliance provisions, including:

• There has been a significant increase in penalties, including for works 'knowingly and recklessly' undertaken without a permit (s 87), as well as for negligently doing so (s 88) and a strict liability offence (s 89), which carries lesser penalties. 
• The Executive Director has broader tools to protect heritage in addition to repair orders (s 155), by issuing rectification orders (s 160) and stop orders (s 165). 

Other changes in the Act include changes to the composition and operation of the Heritage Council and to protection of archaeological heritage.  Overall, the changes provide a stronger and clearer framework for protecting Victoria's heritage.

Where can I go for more information?

For more information about the changes in the Act and the review process that lead to these changes, please click here to be directed to the Department of Environment, Land, Water and Planning website.

If you would like advice about the changes and their implications for your practice, please contact:

Natasha Maugueret
Managing Principal Solicitor
8684 0402

Annette Jones
Acting Managing Principal Solicitor
8684 0431

Mark Egan
Principal Solicitor
8684 0489

Individualised justice and consistency: recent changes in Victorian sentencing law

Last month, the High Court handed down judgment in Director of Public Prosecutions v Dalgliesh (a pseudonym), a decision which alters the sentencing landscape in Victoria. Not long before that, amendments to the Sentencing Act were passed which are set to introduce 'standard sentences' for certain indictable offences. With all these changes on the way, we've taken the opportunity to prepare a summary of what you need to know when it comes to sentencing (adult) offenders in Victoria.

Sentencing in Victoria, a refresher

In Victoria, sentencing is governed by two sources: legislation and the common law. Offences and their maximum (and sometimes minimum) penalties are usually found in legislation, including the Crimes Act 1958, the Summary Offences Act 1966, the Drugs, Poisons and Controlled Substances Act 1981 and the Road Safety Act 1986.

Operating within the boundaries of these legislative provisions, decision-makers have discretion as to the appropriate penalty. In reaching a decision, they are guided by sentencing purposes, principles and factors, which are found in the common law and the Sentencing Act 1991. For those wanting to do background reading, there are many great resources on how sentencing works, including the Sentencing Council's Quick Guide to Sentencing and the Judicial College of Victoria's Sentencing Manual.

Of particular note for the recent changes are the sentencing factors outlined in s 5(2) of the Sentencing Act. Under this section, decision-makers are required to have regard to a range of factors including the maximum penalty for the offence; current sentencing practices for the offence type (the sentences that have been given for similar cases); the nature and gravity of the offence; and the impact of the offence on any victim.

The decision in Dalgliesh

The issue before the High Court in Dalgliesh was essentially about the weight that should be accorded to current sentencing practices.  Our system values individual justice. The High Court affirmed this much in Dalgliesh, observing that 'the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.' However, it is also the case, as Gleeson CJ said in Wong v The Queen (and as the High Court reiterated in Dalgliesh), that 'the administration of criminal justice works as a system … It should be systemically fair, and that involves, amongst other things, reasonable consistency.' The consistency being referred to by the Court is the application of the relevant legal principles, rather than the numerical outcome.

In this case, Mr Dalgliesh had been convicted and sentenced for a number of serious offences in the County Court. The DPP appealed the sentence on two grounds: that the sentence imposed on the incest charge was manifestly inadequate and the orders for cumulation resulted in a total effective sentence that was manifestly inadequate.

The Court of Appeal clearly expressed a view that current sentencing practices for the offences in question were inadequate, concluding that the range is so low it 'reveals error in principle' and is not proportionate to the objective gravity of the offending. However, the Court of Appeal dismissed the appeal, holding that the sentences were within the range indicated by current sentencing practices.

The High Court rejected this approach, ruling that the Court of Appeal had erred by treating the range established by current sentencing practices as determinative or decisive of the appeal before it. The High Court unanimously found that there was no statutory basis for this interpretation. It reiterated that the consistency sought is that of approach, rather than outcome and that the Sentencing Act 'does not require adherence to a range of sentences that is demonstrably contrary to principle.'

In doing so, the Court also overruled the decision in Ashdown, which emphasised that an offender who pleads guilty to an offence does so in the expectation that he or she is to be sentenced in line with current sentencing practices. The High Court emphatically rejected this approach, ruling that 'the only expectation an offender can have at sentence is of the imposition of a justice sentence according to law.'

More change to come … amendments to the Sentencing Act

The other change on its way for sentencing in Victoria is in the form of legislation. Parliament recently passed the Sentencing Amendment (Standard Sentences) Bill 2017, which will come into effect in April 2018, unless proclaimed earlier. The Bill introduces standard sentences for certain indictable offences. The standard sentence will be an additional factor for courts to take into account, in the form of a legislative guidepost. The Bill also makes some changes to the operation of guideline judgments. 

Key takeaways

• The weight to be accorded to current sentencing practices in Victorian sentencing law has changed. The High Court has made it clear that current sentencing practices are one factor to be considered. They do not play a decisive or determinative role. 
• The introduction of standard sentences will soon provide another factor to be taken into account by the courts when sentencing offenders for certain indictable offences. These amendments will come into effect in April 2018, unless proclaimed earlier. 

VGSO provides assistance to government on the application of sentencing principles and statutory interpretation.  For more information and assistance please contact our senior lawyers below.

This blog was prepared by Katharine Brown, Solicitor.

Paula Cumbo 
9032 3043

Tien Tran
8684 0414

Victorian Government releases its first cyber security strategy

Gavin Jennings the Special Minister of State announced the Victorian Government Cyber Security Strategy on 25 August 2017.  The Victorian Government Solicitor's Office is proud to host a panel discussion on Monday 23 October 2017 regarding Cyber Security and the whole of Victorian Government approach to improve capability and resilience. The event is free and all members of the Victorian Public Service are welcome to attend. You can register for the event here.

The Strategy is to bring a whole of government approach to cyber security to help Victorian Government digital infrastructure better respond to the evolving cyber security environment.  The strategy notes that the security environment is becoming significantly more sophisticated, and as such a more sophisticated approach to cyber security is warranted. This is addressed in 23 action points in 5 categories of action.

Previously, cyber security has been managed on an agency by agency basis, with guidance from sources such as the Victorian Protective Data Security Framework.  The strategy aims to leverage all Government learning in the area, in recognition that not all agencies have the same resources to deal with the cyber threat.

The key element announced is the creation of the Chief Information Security Officer within the Department of Premier and Cabinet. Mr John O'Driscoll has been appointed to the role and will be responsible for overseeing Government's response to the cyber threat, developing best practice, providing assurance, reporting internally on the Government's cyber security status and coordinating cross Government action. You can read the media release announcing the appointment here.

The strategy also aims to enhance Government capability in terms of strategic planning, reporting and technical proficiency, both through partnering agreements and a dedicated push for skilled workers.

We anticipate rapid change in this space, with 19 of the 23 action points due to be delivered by April 2018.

If you'd like to discuss managing the legal risks relating to a cyber security breach, please contact us:

Isabel Parsons
Managing Principal Solicitor
9947 1405

Tina Lee
Principal Solicitor
9947 1426

James Stephens
Principal Solicitor
9947 1422

Stuart Taylor
Solicitor
9947 1415

Director of Public Prosecutions publishes new policy

In August 2017, the Director of Public Prosecutions published the Policy of the Director of Public Prosecutions for Victoria (Policy).  The Policy follows a comprehensive review of the DPP's policy material and replaces all former DPP policies.

The Policy is required reading for anyone involved in prosecution or employed in an agency with prosecutorial or regulatory functions.  You can and should use the Policy to guide your prosecutorial decisions in line with modern prosecutorial principles.  We've produced a quick summary of what the policy covers to help you easily identify the areas you might find most relevant to your day to day functions.

What does the Policy cover?

The Policy supplements the Public Prosecutions Act 1994 and relevant case law to promote  transparency, accountability and consistency in prosecutorial decision-making.  It aims to reflect, accurately and succinctly, the needs of modern-day prosecutors.  Importantly, the overriding criteria in making the decision to prosecute remain that there is a reasonable prospect of a conviction and the prosecution is in the public interest.

In summary, the Policy covers:

• prosecutorial discretion 
• the role of the prosecutor
• victims and persons adversely affected by crime
• resolution of criminal proceedings by agreement between the prosecution and the accused
• the appropriate jurisdiction for indictable offences triable summarily
• undertakings and indemnities
• juries
• family violence
• appeals, references, retrials and reinvestigations
• takeover of prosecutions by the DPP
• proceeds of crime
• giving reasons for prosecutorial decisions
• advice from the Office of Public Prosecutions to external agencies
• detention orders under the Serious Sex Offenders (Detention and Supervisions) Act 2009.

The DPP has also said that he will not print the Policy for distribution, but will treat it as a living, electronic document, to be continually reviewed and accessed as needed.  This approach ensures that the Policy is consistently relevant and up-to-date.  You can follow the DPP on Twitter to receive notification of updates to the policy.

What doesn't the Policy cover?

Inevitably, some matters covered by former policies are not covered in the Policy.  After all, the single, 50-page Policy replaces over 50 former policies, issued over several years and totalling almost 500 pages.  In the Policy Foreword, the DPP notes that this series of former policies did not bear a sufficient connection to the practice of a modern-day prosecutor.  Generally speaking, the Victorian public prosecutions service has sought to excise any policy material that was out of date, was related to internal DPP procedures or was seen as an unnecessary recitation of the law.

To give just a few examples, the new Policy does not reproduce the former policies on media communication, the investigation of jury offences or protocols for the prosecution of joint State-Commonwealth matters.  Several policies relating to specific applications or pieces of legislation have also been retired, such as those on notifications under s 49(1) of the Coroners Act 2008, the granting of consent to prosecute under the Racial and Religious Tolerance Act 2001 and the granting of consent to extend time to prosecute under the Funerals Act 2006.

What else does the Policy mean for me?

Agencies with prosecutorial or regulatory functions may also wish to review their internal policies and manuals to ensure they are up-to-date.  VGSO have a team of regulatory and enforcement specialists who can assist with investigations, prosecutions, as well as drafting of relevant policies, manuals and staff training.

Where can I go for more information?

If you would like further advice about the Policy or its implications for your practice, please contact:

Alicia Robson
8684 0494
Acting Managing Principal Solicitor

Michael Rancie
8684 0266
Solicitor

Tips for contracting with a trustee

Contracting with a trustee increases the complexity and risk of any transaction.  It is imperative that government agencies understand and adequately manage these risks.

What are the risks of contracting with a trustee?

A trust is a relationship where one person or company (the trustee) holds assets for the benefit of another (the beneficiary).  When contracting on behalf of the beneficiaries, a trustee typically wishes to limit its liabilities to the extent to which it is indemnified out of the trust assets.

There are two major risks associated with the trustee's liability being limited in this way:

1. The trust assets may not be of sufficient value to meet any debts incurred by the trustee.  
2. The trust assets may not be available to meet any debts incurred by the trustee.  

What can be done to limit these risks?

If you have concerns about contracting with a trustee, there are a number of due diligence steps and contractual devices that can be used to limit these risks:

Review the trust deed

The extent of the indemnification available to the trustee from the trust assets is usually set out in a deed between the trustee and the beneficiaries.  Trust deeds are not publicly available and can only be obtained from the trustee.  Without access to the trust deed, it may be impossible to confirm the scope of a trustee's indemnity.

You can ask the trustee to provide a copy of the trust deed so you can determine the scope of the trustee's indemnification although it would not be unusual for the request to be refused on the grounds of confidentiality.  Further, there is no guarantee that the trustee and the beneficiaries will not modify the terms of the trust deed at a later date, including amending the scope of the trustee's indemnity out of the trust assets.

Obtain details of the trust's asset holdings for the particular trust

You will want to ensure that the trustee can meet any debts and liabilities arising under the contract.  Therefore, you can ask the trustee to provide details of the value of the assets which it holds on trust.  One thing to keep in mind is that even if the trust consists of assets of significant value at the time the contract is signed, there is no guarantee that the trust will still consist of those assets at the time that a relevant liability arises.

Ask the trustee to provide financial security

If there are any concerns that a trustee may not have sufficient trust assets to meet liabilities under the contract it might be prudent to require extra security.

Some of the most common forms of financial security in contractual arrangements include cash security deposits or bank guarantees.  In some cases parent company guarantees may be appropriate.
Another method of risk management is ensuring that the trustee has adequate insurance, so that the insurance policy can respond if an event covered by the policy occurs.  The type and amount of insurance should be customised to the specific contract.

Exclusions from the trustee's limitation of liability

A trustee's power to contract is subject to the limitations in the trust deed.  If the trustee incurs debt whilst acting outside of its conferred powers, or whilst acting fraudulently or negligently, these debts usually cannot be recovered from the trust assets.  In these circumstances, you should ensure that such conduct is excluded from the trustee's limitation of liability clause in your contract.

Further advice and assistance

Contracting with a trustee can add complexity to any commercial or property transaction.  For further advice and assistance, please contact:

Anthony Leggiero
Managing Principal Solicitor
Ph: 9947 1430
Email: anthony.leggiero@vgso.vic.gov.au

Brendan McIntyre
Acting Managing Principal Solicitor
Ph: 9947 1435
Email: brendan.mcintyre@vgso.vic.gov.au

Coming soon! Cyber security audits announced by VAGO

The Victorian Auditor-General’s Office (VAGO) has this month announced plans to conduct audits on departments and agencies to assess their implementation of the Victorian Protective Data Security Framework (VPDSF) and Victorian Protective Data Security Standards (VPDSS), as well as cyber security strategy.

The audits, to run in 2018-19, will ascertain whether the VPDSF and VPDSS have been effective in improving cyber resilience in government to determine whether departments and agencies can adequately prevent, respond to and recover from cyber security attacks.

The Commissioner for Privacy and Data Protection released the VPDSF and VPDSS in mid-2016 to provide direction for Victorian public sector agencies on their data security obligations.  Department heads must prepare Protective Data Security Plans to address the VPDSS and submit the plan to the Commissioner.

Whilst VAGO will be undertaking performance audits for the purpose of ascertaining the effectiveness of the VPDSF and VPDSS in improving government's cyber resilience, the Commissioner may also conduct monitoring and assurance activities, including audits, to ascertain whether departments and agencies are complying with data security standards.

If you would like to know more, contact:

Rebecca Radford
9947 1403

Snezana Stojanoska
9947 1412

James Stephens
 9947 1422

Commonwealth Government introduces Government Procurement (Judicial Review) Bill 2017

Procurement practitioners may have noticed that on 25 May 2017, the Commonwealth Government introduced the Government Procurement (Judicial Review) Bill 2017 designed to give the Commonwealth procurement rules some extra teeth.

What does the Bill propose?

The Bill would enable the Federal Court to grant an injunction or order for compensation for a contravention of relevant Commonwealth Procurement Rules by a Commonwealth entity.

A supplier whose interests are affected by the relevant conduct (which includes a potential supplier ie bidder) may make an application to the court for compensation or an injunction, which may halt the procurement process or preserve the supplier's rights in the process.  

The Bill also provides for complaints to be made to the accountable authority of a relevant Commonwealth entity about a contravention of the relevant Rules, which must then be investigated.

Does this impact Victoria?

The bill does not affect state procurements.  In Victoria, an unsuccessful bidder has to bring proceedings (including an injunction) against an agency under contract law, for breach of the contract that may have been formed through the procurement process. 

If you'd like any more information about government procurement, please contact:

Julie Freeman

Assistant Victorian Government Solicitor

9947 1404

Rebecca Radford

Managing Principal Solicitor

9947 1403

Time for a change: Eight ways to get ready for amendments to the FOI Act

The passing of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 has brought about notable changes to Victoria’s Freedom of Information (FOI) regime for agencies and applicants.

Victoria's amendments are designed to promote a culture of open government through access to information and strengthen oversight of the administration of the FOI Act.
The changes come into effect on 1 September 2017.

Contact us for the complete suite of updated FOI templates, available for a fixed fee.

Here are eight things FOI agencies need to do to be ready for the changes.

1. Shorter time frames for processing FOI requests

Agencies and Ministers must make decisions on FOI requests within 30 days, instead of the previous 45 day period.
With the agreement of an applicant, this time frame can be extended by up to 30 days, with the possibility of additional extensions, so long as the extension is granted before the relevant period expires.
Decision makers are permitted an extension of up to 15 calendar days for requests that require consultation with specified third parties (under sections 29, 29A, 31, 31A, 33, 34 or 35) before a decision is made.

Action: Update correspondence templates, FOI manuals and other materials.  Importantly, consider ways of streamlining your document searches, FOI processing and other processes to make them as efficient as possible.

2. New Office of the Victorian Information Commissioner

On 1 September 2017, the new Office of the Victorian Information Commissioner (OVIC) will replace the existing Offices of the Freedom of Information Commissioner and the Commissioner for Data Protection and Privacy.
OVIC is an independent regulatory body.  It will comprise an Information Commissioner who will be assisted by two Deputy Commissioners responsible for FOI and privacy and data protection respectively.

Action: Watch out for updates and free training on the new OVIC to be offered by the current Office of the Freedom of Information Commissioner.

3. Power to review decisions of principal officers and Ministers 

OVIC has power to review FOI decisions made by principal officers and Ministers.
The amendments also provide that OVIC can accept a complaint about a decision made by a Minister that a document does not exist or cannot be located, or a failure by a Minister to comply with new Ministerial professional standards (see below).

Action: Update decision letter templates to advise that review of a decision to refuse a document, or a complaint about a ‘no documents’ decision made by a principal officer or a Minister, can be made to OVIC within 60 days after the date of the decision.

4. Power to review decisions refusing access to Cabinet documents 

OVIC has power to conduct reviews of decisions refusing access to documents exempted under the Cabinet documents exemption (section 28(1)).
Conclusive certificates signed by the Secretary to the Department of Premier and Cabinet and produced to establish that a document is subject to the Cabinet document exemption no longer apply.  In any case, such certificates were not commonly in use.

Action: Ensure decision letters address the relevant factors required in order to claim the Cabinet exemption, namely that the purpose or a substantial purpose for creating the document was for it to be submitted to Cabinet (or a sub-committee of Cabinet) for its consideration.  Care taken to establish the basis of a Cabinet exemption from the outset (including evidence of the purpose for which a document was created) will assist in any review of a decision to apply this exemption.

5. Increased powers in relation to searches for documents

Upon review of a decision, OVIC has power to require an agency or a Minister to conduct further searches for documents.  OVIC may specify methods for undertaking a further search for documents, for example, by directing an agency to use a specified key word search of its email system.
In cases where an agency or Minister refuses a request on the basis that the work involved in processing the request would substantially and unreasonably divert resources or interfere with the performance of the agency or the Minister’s functions, OVIC can require a further search or that a ‘reasonable sample’ of documents be produced.

Compliance with a request to conduct a further search or produce a reasonable sample must be undertaken within at least 10 business days, however, this period may be extended.  Within three days after the conclusion of this time frame, the agency or Minister must notify OVIC of the outcome of the further search or retrieval of sample documents.  OVIC has power to refer a complaint back to the agency or Minister to make a fresh decision.

Action: Consider making detailed notes of searches undertaken for documents, including locations searched and key word searches undertaken. This will assist you should a review application or complaint be made to OVIC.
If you receive a notice requiring a further search or a sample of documents, ensure you comply with the deadline provided in the notice.

6. New coercive and investigative powers

OVIC has power to conduct an own-motion investigation into an agency or principal officer's performance of functions or obligations under the FOI Act. As part of an investigation, the Information Commissioner can compel the production of documents and witnesses to attend before the Commissioner to be examined on oath or affirmation.
A person served with a notice to produce or attend will have the same protection and/or immunity as a witness in a Supreme Court proceeding and will have the right to legal representation if attending to answer questions.
Non-compliance with a notice to produce or attend to answer questions without a reasonable excuse may constitute an offence.

Action: If you receive a notice requiring you to produce documents or appear before the Commissioner to answer questions, ensure you comply with the requirements set out in the notice and, if required, seek clarification from OVIC.

7. Documents that may prejudice an IBAC investigation

Agencies and Ministers should be aware that documents in their possession, which would (or would be reasonably likely to) prejudice or adversely affect IBAC's investigations or informants, are exempt.

Action: If you identify such a document, notify IBAC that you have received a request for access to the document and seek IBAC's view as to whether the document should be disclosed.
Consider preparing a policy and provide training to decision makers to ensure compliance with this requirement.

8. Reduced time limit for agencies and Ministers to apply for review

While FOI applicants continue to have 60 days to lodge a VCAT review application for an OVIC decision, the time frame for an agency or Minister to lodge a VCAT review application is 14 days.

9. Professional standards for decision makers

OVIC will implement professional standards which will operate like a code of conduct to ensure FOI decision makers meet minimum standards for dealing with applicants, conducting document searches, processing requests and engaging in timely and good decision making. The standards are binding on agencies and principal officers.  Principal officers are also responsible for ensuring that all officers and employees are informed about the standards and for ensuring compliance by junior staff.
The standards do not automatically apply to staff in Ministerial offices, but the Premier has the power to adopt the standards (with modifications, if needed) and apply them to Ministers and their staff (Ministerial Standards).

Action:  You may receive an invitation from OVIC inviting your agency to participate in a consultation process for the development of the standards.
Provide training for your FOI decision makers and staff to ensure compliance with the new standards. 

Ensure your agency’s current practices comply with not only the legal requirements but also the 'spirit’ of the FOI Act.

This blog was prepared by Joanne Kummrow and Samudhya Jayasekara with the assistance of Milli Allan.

For further information on FOI matters contact:

Joanne Kummrow 
8684 0462

Andrew Field 
8684 0889

Michele Rowland
8684 0413

Kay Chan
8684 4020

Don't buy a data breach - Privacy and data security when procuring goods and services

At our recent monthly seminar 'Information Sharing and Data Protection - Know your Value', we discussed the importance of monitoring suppliers to mitigate privacy and data breaches.  This data security theme was continued during the Commissioner for Privacy and Data Protection's recent Privacy Awareness Week.

Remember these key messages and tips to help minimise the risk of your procurement experiencing a data or privacy breach:

Value your Data

From the outset, think about the value of the data that your supplier will collect or have access to during the arrangement.  This will enable you to determine the appropriate information handling and privacy requirements you'll need.

Choose the Right Supplier 

Ensure that your information handling and privacy requirements are part of your sourcing plan and clearly set out in your market facing documents.  Award a contract to a supplier who can demonstrate a good track record of understanding and implementing privacy and data security.

One size does not fit all  

Your risk management strategy needs to be proportionate and tailored to the size and activity of your procurement.  Data heavy supply arrangements may need to consider additional protections, including how information will be managed when a supplier transitions out.

Monitor your supplier's performance against the contract 

The words in the agreement are important, but ongoing contract management is necessary for early detection of possible data and privacy breaches.

If you'd like assistance on managing your suppliers to meet your information handling obligations, please contact:

Rebecca Radford
9947 1403

James Stephens
99471422

Snezana Stojanoska
9947 1412

Victorian Commissioner for Privacy and Data Protection Report - Learnings and Hurdles

A recent Commissioner for Privacy and Data Protection (CPDP) report on information governance at the Department of Health and Human Services (DHHS) provides valuable guidance to assist government agencies to comply with the Privacy and Data Protection Act 2014 (Act) and the Victorian Protective Data Security Standards, in particular.  Below we look at key learnings that other agencies can take on board as part of their own compliance preparation.

A high priority: manage your contracted service providers

Department and agency heads will be responsible for ensuring that both their own organisations and their Contracted Service Providers (CSP) comply with the Standards.  Contract terms making CSPs liable for compliance with the Information Privacy Principles won't remove the risk of privacy and data security incidents occurring.

The finding in the Report showed that while agencies must ensure their agreements with CSPs are consistent and reflect up to date information governance requirements, there needs to be appropriate and effective resourcing, due diligence and monitoring of CSP compliance too.  Without appropriate monitoring, there is a greater risk of incidents which could mean that the agency may not have met its obligations under the Act.

Achieving compliance with the Victorian Protective Data Security Standards

The Report recognises that not all Victorian Public Sector organisations may be fully compliant with the Standards by July 2018.  Showing that you are on track is crucial though, and submitting a security assessment and plan to the CPDP is mandatory.  Further, the CPDP recognises that some agencies may already comply with much of the Standards by having implemented the Information Security Management Framework (2009) and through annual reporting to the Victorian Auditor-General's Office.  The steps required to achieve compliance will not necessarily be the same for all agencies or wholly new or particularly onerous.

Other factors to consider in your compliance framework

• Are your information policies and procedures consistent and do they reference each other?  Are your staff aware of where to find them, and are they regularly checked and updated?
• Does your organisation have up to date privacy and data security incident management procedures? Does your organisation need defined criteria of when to notify others and escalate incidents?
• Have you developed scenario-based privacy and data-security training for CSPs and your frontline staff based on their day-to-day roles?
• Do you need an information asset register?  This can identify the information you handle, its value, risks and regulatory requirements, and how to use and manage it.

If you have any queries regarding privacy law in Victoria, please call:

Rebecca Radford
Managing Principal Solicitor
9947 1403

Molina Asthana
Principal Solicitor
9947 1420

James Stephens
Principal Solicitor
9947 1422

No longer in the shadowlands: regulation of unregistered health service providers

As of 1 February 2017, Victoria has a new health complaints system with the commencement of the Health Complaints Act 2016 (Act) and the appointment of the inaugural Victorian Health Complaints Commissioner, Karen Cusack. This new role replaces the former Health Services Commissioner.

It has been almost 30 years since the Victorian health complaints scheme was designed. In this time, the number and diversity of health services available have increased significantly.

Media reports over a number of years have highlighted the stories of vulnerable and unwell people, who have obtained health services from unregistered health service providers based on what they later realised were false or misleading claims about the efficacy of the treatment. In a number of cases, the treatment received has been experimental, costly, and provided to the potential detriment of the patient’s health in cases where other treatment options have been ignored or discouraged.

Previously, there was only limited recourse under consumer protection and trade practices legislation in situations where a person complained about an unregistered health service provider.

The new Act seeks to address the previous ‘shadowlands’ of unregistered health providers to better protect members of the public from receiving unsafe or non-efficacious health services.

Many providers of, what are often described as, 'alternative' or 'non-mainstream' health services are not subject to professional registration and, therefore, lie beyond the regulation of the 14 health profession boards and the Australian Health Practitioner Regulation Agency (AHPRA). The Health Practitioner Regulation National Law (Victoria) Act 2009 is also not directed at preventing a registered health practitioner from providing unsafe, non-efficacious or unethical health services where such treatment is outside the scope of their professional registration.

The Act applies to all providers of a 'health service'. This term is defined broadly in the Act and focuses on the purpose of the activity. For example, any activity intended or claimed to 'assess, predict, maintain or improve [a] person's physical, mental or psychological health or status', as well as therapeutic counselling services. Importantly, the Act introduces a Code of Conduct that sets standards for the provision of safe and ethical health services.

The Act seeks to promote the efficient and effective management of complaints with a focus on conciliation. However, where a complaint cannot be resolved, the Act provides the Commissioner with significant powers to investigate complaints and take action against unsafe or unethical health service providers.

Powers of the Health Complaints Commissioner

The Health Complaints Commissioner has power under the Act to:

• investigate complaints about the provision of 'health services', including by:
• unregistered practitioners
• registered practitioners providing health services outside the scope of their professional registration
• formerly registered practitioners
• conduct own motion investigations where no specific complaint has been received
• accept complaints from affected individuals and third parties, including carers, health practitioners or other healthcare providers
• make prohibition orders to prevent unsafe or unethical services or products 
• enter and search premises, order the production of documents, and call persons to give evidence at an investigation hearing before the Commissioner 
• set penalties for failing to comply with investigation hearing notices and interim prohibition orders of the Commissioner (including up to two years' imprisonment)
• ban unregulated healthcare providers from providing health services in Victoria where they are prohibited from practising in other states
• publish public health warnings and publicly name providers

The new Health Complaints Act is a welcome step to fill the regulatory gap that existed between unregistered healthcare providers and registered health practitioners to ensure better protection for the health and wellbeing of the public.

Links
Health Complaints Commissioner
Code of conduct

Joanne Kummrow
Special Counsel
03 8684 0462

Andrew Field
Managing Principal Solicitor
03 8684 0889

Michele Rowland
Principal Solicitor
03 8684 0413

This blog was prepared with the assistance of Mary Quinn, Solicitor, and Milli Allan, Trainee Lawyer.

Enterprise bargaining - proposed changes to the Referral Act

Last week the Victorian Government introduced into Parliament proposed legislation to expand the referral of industrial relations matters to the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (the Referral Act).

The Fair Work (Commonwealth Powers) Amendment Bill 2017 (the Bill) proposes to enable public sector employers and employees (excluding law enforcement officers) to bargain over, and reach agreement on, matters relating to the number, identity or appointment of employees.

Background

Australia's federal workplace relations laws rely primarily on the Commonwealth's power to legislate with respect to constitutional corporations.

Under the Referral Act, the Victorian Government referred certain industrial relations matters to the Commonwealth to bring other Victorians into the federal industrial relations system. However, the Government excluded from the Referral Act certain matters relating to public sector employees.

This exclusion was based on an understanding of the implied limits on Commonwealth legislative power. In Re Australian Education Union, the High Court held that certain matters relating to State employees were critical to a State's capacity to function as a government and therefore beyond the Commonwealth's legislative power. These matters included a State's right to determine:

• the number and identity of its employees;
• the length of employees' employment; and
• the number and identity of those whom it wishes to dismiss on redundancy grounds.

In 2015, however, the Full Federal Court held in United Firefighters' Union of Australia v Country Fire Authority that, where there was voluntary agreement about such matters, there was no practical impairment of the State's capacity to function as a government. As a result of this decision, such matters may be included in enterprise agreements that cover constitutional corporations and their employees.

The Bill

The Bill proposes to refer to the Commonwealth certain matters concerning the number, identity and appointment of public sector employees (excluding law enforcement officers). The Bill is relevant for those employees in the public sector (excluding law enforcement officers) who are not employed by constitutional corporations and, accordingly, is relevant for the employers of such employees.

The proposed changes will enable those public sector employees and their employers to include in enterprise agreements enforceable terms dealing with matters such as minimum staffing levels, staffing ratios, or the number of casual, seasonal or fixed term employees.

The Bill also proposes to empower the Fair Work Commission to make workplace determinations in respect of those public sector employees and their employers which include agreed terms dealing with these matters.

However, the Bill does not propose to:

• empower the Fair Work Commission to arbitrate bargaining disputes about these matters, or make an award including these matters in relation to public sector employers and employees; or
• permit these matters to form part of an enterprise agreement, workplace determination, or other transferable instrument that applies to public sector employers and employees as a result of a transfer of business.

Accordingly, terms dealing with the number, identity and appointment of public sector employees may only be included in an instrument by agreement. As is the case with all terms to be included in enterprise agreements, employers will need to carefully consider the long-term implications.

Jacqueline Parker
Assistant Victorian Government Solicitor
03 90323011

This blog was prepared with the assistance of Jack Maxwell, Trainee Lawyer, and Emma Buckley Lennox, Seasonal Clerk.

Native Title Agreements: All registered native title claimants must sign, says Full Federal Court

The McGlade decision is of national significance and goes to which particular individuals must sign certain agreements under the Native Title Act. The case relates to the $1.3 billion Noongar settlement over the greater Perth area and WA's south west. The decision means that four of the six agreements in the settlement will not be indigenous land use agreements (ILUAs) because of the way they were signed and will not have the full force and effect that the signatories expected them to have under the Native Title Act.

While the case underlines the importance of strictly following the Act's requirements on agreement making, the Commonwealth is presently seeking to legislate to address situations where agreements may now be invalid following the Full Court's decision. A Bill for this purpose passed the lower house on 16 February.

The Bill's primary objectives include ensuring that ILUAs which do not contain the signatures of all members of the registered native title claimants can still be registered and enforceable. The Bill is also intended to apply retrospectively. Importantly though, it is yet to take effect as law. The Senate Legal and Constitutional Affairs Legislation Committee is expected to report on the Bill by 17 March 2017.

VGSO will be working closely with our clients who need assistance in making ILUAs to determine the impacts of these developments. The VGSO is Government's exclusive provider of legal services on native title.

We will bring you further updates as they come to hand.

James Stephens
Principal Solicitor

Personal Information and Metadata: Is the Telstra case really the most important Australian Privacy case to date? We're not so sure.

The Full Federal Court has taken a narrower view of 'personal information' under Commonwealth privacy law than the view preferred by the Australian Privacy Commissioner. However, the decision does not necessarily narrow the statutory definition.

The case related to a journalist's request to Telstra for metadata regarding his mobile phone. The Full Court disagreed with the Commissioner's appeal and confirmed that personal information must be 'about' an individual, and not only information from which the individual's identity could be reasonably ascertained.

The Court expressed doubts about the usefulness of the orders that the Commissioner wanted, and noted that applications by non-parties to make submissions relied on overseas laws with different wording, and appeared to raise issues that went beyond the point being appealed.

While a high level of attention has been given to the case, some commentary has not been substantiated in the decision itself. The case is likely to have limited impact on how the Victorian definition of 'personal information' is interpreted, and might have limited impact more generally because the decision itself is a narrow one. The Full Court did not decide whether the 'metadata' requested in that case was personal information, or rule on hypothetical examples or criteria to assess whether it was. Rather, it confirmed an evaluation will still be necessary in each case based on the facts and circumstances. This includes whether an item of information might be 'about' a person when considered along with other information. Also, the definition of 'personal information' in Commonwealth privacy law has changed since the time the decision relates to.

If you'd like to discuss any of the issues raised by this decision please call James Stephens or Snezana Stojanoska.

James Stephens
Principal Solicitor
03 9947 1422

Snezana Stojanoska
Solicitor
03 9947 1412