New Victorian workplace manslaughter offences

Victoria now joins the Australian Capital Territory and Queensland in having specific health and safety manslaughter laws in place.  On 26 November 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 was passed, without amendment, by the Victorian Legislative Council and will commence operation by 1 July 2020.

This legislation creates two offences of workplace manslaughter in the Occupational Health and Safety Act 2004 (OHS Act) for the following duty-holders:

• a person (which includes Victorian public sector bodies) who is not a volunteer.
• a person who is an officer of an applicable entity, who is not a volunteer.

These offences have significant implications for both employers and officers.

A body corporate found to have negligently caused the death of an employee or member of the public will face fines of up to $16.5 million, and individuals will face up to 20 years in jail.

What constitutes 'workplace manslaughter'?

The new offences provides that employers, self-employed people and officers of the employers must not engage in conduct that:

(a) is criminally negligent; and

(b) constitutes a breach of an applicable duty that the person owes to another person; and

(c) causes the death of a person at or near a workplace.

An entity is an applicable entity if it is a body corporate or an unincorporated body or association or a partnership.  As such, it will also apply to the Crown and Victorian public sector bodies.

Key takeaways

• two new offences of workplace manslaughter will commence operation in the OHS Act from 1 July 2020, at the latest.
• the new offences will be not able to be determined in the Magistrates' Court.
• WorkSafe Victoria will investigate the new offences of workplace manslaughter using their existing powers under the OHS Act.  
• the privilege of self-incrimination will be able to be claimed by an individual.
• volunteers and employees who are not 'officers' cannot be charged with workplace manslaughter under the OHS Act.
• there will be no statutory time limit within which WorkSafe can bring a charge of workplace manslaughter.
• the new offences will capture all types of workplace risks that cause death, including mental health risks and long-term occupational diseases.  For example, a suicide that is the direct result of negligent workplace practices and policies that substantially contribute to the death may constitute workplace manslaughter.
• the Andrews Government has committed a $10 million package to boost WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences.

The VGSO Occupational Safety Team provides advice and conducts litigation in relation to all aspects of Victorian public sector occupational health and safety.  In particular, the Occupational Safety Team can provide advice and training to Victorian public sector bodies on their rights and obligations as a result of the introduction of these new workplace manslaughter offences.

To find out more contact:

Jodie Burns
Managing Principal Solicitor
Victorian Government Solicitor's Office

Harry Kinkead
Senior Solicitor
Victorian Government Solicitor's Office

VCAT confirms scope of data security obligations when serving documents

A recent VCAT decision found that privacy obligations with respect to court or tribunal documents that are served on a party cease upon valid service, even if the recipient refuses to accept service and abandons the documents.

On 1 December 2017, police officers attended Mr Zeqaj's workplace to serve him with documents on behalf of the Australian Taxation Office.  When Mr Zeqaj refused to accept service, the police officers placed the documents down in his presence and left.  Mr Zeqaj alleged that by serving him at his workplace and by leaving the documents unattended, Victoria Police contravened Information Privacy Principle (IPP) 4.1, which provides that an organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.

VCAT found that Victoria Police had not contravened IPP 4.1 because the disclosure was authorised.  Victoria Police had collected the personal information for the purpose of serving it on Mr Zeqaj, and had effected service by identifying Mr Zeqaj and giving him 'ready and unimpeded means of exercising physical custody or control' over the documents.  Once the documents had been served, Victoria Police no longer 'held' the information within the meaning of IPP 4.1 and any unauthorised access from that point was a result of Mr Zeqaj's decision not to take possession of the documents.

VCAT also found that it did not have jurisdiction to consider Mr Zeqaj's claim that his rights under the Charter of Human Rights and Responsibilities Act 2006 had been breached because the claim had not been included in the original complaint to the Information Commissioner, or in the referral from the Commissioner to VCAT.

Contact us: 

Louise McNeil
Senior Solicitor
louise.mcneil@vgso.vic.gov.au

Catherine Roberts
Lead Counsel
catherine.roberts@vgso.vic.gov.au

Case: Zeqaj v Victoria Police (Human Rights) [2019] VCAT 1641

How to vary a custodial supervision order: clarifying the legal test

In a recent decision in Hammond (a Pseudonym) v Secretary to Department of Health and Human Services, the Court of Appeal took the opportunity to clarify when a court can vary a Custodial Supervision Order (CSO), a type of supervision order that can be made where a person is found unfit to stand trial or not guilty due to mental impairment. The decision gives further useful guidance about the relevant test and criteria for determining when such orders may be varied.

Key takeaways

• When deciding whether to vary a CSO to an Non-Custodial Supervision Order (NCSO), the test is whether doing so would 'seriously endanger' the applicant or members of the public if released from the CSO. Courts must address this question directly, ensuring that restrictions on the person's freedom are kept to a minimum consistent with community safety.
• If an appeal is unsuccessful, the Attorney-General can avoid an order to pay costs by showing exceptional circumstances, such as responding to a novel question of law.

What does the Act say?

Courts have the power to vary or confirm a CSO under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act). The court has three options under the Act:

• to confirm the order;
• to vary the place where the person is held in custody; or
• to vary the order to an NCSO.

Section 32(2) of the Act is of particular note: a court must not vary a CSO to an NCSO unless satisfied that the person's release will not 'seriously endanger' them or members of the public. In reaching its decision, the court must take into account a number of considerations, such as the nature of the person's impairment and the need to protect the public from any danger. Courts must also apply the general principle that restrictions to a person's autonomy should be kept to the minimum consistent with the community's safety.

Mr Hammond's case

In 2010, Danyl Hammond (a pseudonym) killed his partner while experiencing psychosis and was placed on a CSO. In 2018, Mr Hammond applied to vary his CSO to an NCSO while he was on a period of extended leave from custody. Justice Champion decided not to vary the CSO and concluded that there was no 'substantial reason' to depart from another judge's previous extended leave grant. Further, Mr Hammond's circumstances had not changed sufficiently, and it was necessary to monitor his progress in the community for a longer period. Mr Hammond appealed that decision, arguing that the judge had failed to apply the correct test in deciding whether to vary the CSO.

The Court's decision

The main issue before the Court of Appeal was the proper test that judges should use when deciding whether to vary a CSO. The Court found in favour of Mr Hammond, affirming that the central task is to determine whether varying an order to an NCSO will 'seriously endanger' the person or the public.

The majority stated that the court must assess the probability of harm, as explained in NOM v Director of Public Prosecutions. In answering this question, the court should take into account the mandatory considerations (including whether the person is likely to endanger themselves or others) and should keep restrictions to a person's freedom to a minimum consistent with community safety.

The Court also shed light on some of the questions that should not determine the outcome of an application. For example:

• that a person is on an extended leave order does not preclude them from successfully arguing that a CSO should be varied; and
• it is not necessary for a person to show a positive change in their circumstances. (The majority of the Court reasoned that such an approach is inconsistent with the Act's requirement for an independent assessment of the risk of 'serious endangerment'.)

No costs order

The Court of Appeal decided not to order the Attorney-General to pay the costs of the proceeding on the following grounds:

• the Attorney-General served the public interest by answering a novel legal question and assisted the Court by putting a clear position with substance;
• Mr Hammond did not personally incur any expenses (he was funded by Legal Aid) and had no grounds to expect to receive costs;
• the proceeding had the hallmarks of a criminal appeal where costs are not usually awarded against the State; and
• awarding costs against the Attorney-General amounts to transferring funds 'from one emanation of the State to another'.

To find out more contact:

Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Tyrone Connell, winter clerk, July 2019.

A question of time: calculating statutory time limits

Statutory time limits for taking action are described in different ways within legislation, making (what should be) simple maths complicated for lawyers and decision-makers.

The Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) includes the following two examples of statutory time limits:

• a Ministerial call-in notice is of no effect unless it is given no later than 7 days before the day fixed for the hearing of the proceeding (cl 58(2), Sch 1, VCAT Act);
• a request to a decision-maker for a statement of reasons must be made in writing within 28 days after the day on which the decision was made (s 45, VCAT Act).

These examples alone could cause confusion. Does 'no later than seven days' mean one week, or more than a week? Does 'within 28 days' include the 28th day? What if the final date falls on a weekend?

The laws on statutory time limits

Luckily, we do have some guidance on how to count these time periods. Section 44 of the Interpretation of Legislation Act 1984 (IL Act) sets out rules for counting days under Victorian legislation. For example:

• If a time limit for 'doing' something falls on a Saturday, Sunday or a public holiday, the time limit should extend to the next day that is not a Saturday, Sunday or a public holiday. This is sometimes called the 'extension rule'; 
• If a period of time ends on a specific day, that day is included in the period;
• If a period begins on a specific day, that day is not included in the period.

Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156 

Section 44 of the IL Act was directly at issue in the recent Supreme Court of Appeal decision of Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156.

The facts

The Applicant (Waterfront) owns land in Port Melbourne. On 24 October 2016, Waterfront applied to Port Phillip City Council (Council) for a planning permit to develop its land for the purpose of a 10 storey development.  The application was refused. On 12 September 2017, Waterfront commenced proceedings in the Victorian Civil and Administrative Tribunal (Tribunal) to review the Council's decision.

The Minister for Planning (the Minister) 'called in' (i.e. 'intervened in') the proceeding, pursuant to the power under cl 58(2) of Schedule 1 of the VCAT Act.

To be valid, a call in notice must be submitted no later than 7 days before the date of the hearing. In this case:

• the hearing was listed on Monday, 30 July 2018; and
• the Minister called in the proceeding on Monday 23 July 2018.

The issue was whether the call in notice was submitted in time. The Court of Appeal held that it was, and so the Ministerial call in was valid.

The Court reasoned as follows:

• as a first step, 'no later than 7 days before' Monday 30 July 2018 meant that the last date for the call in notice to be filed was Sunday 22 July 2018 (all parties agreed with this first proposition);
• under s 44 of the IL Act, Sunday is a 'holiday' and, applying the extension rule, if the last day for doing something falls on a holiday, the time extends to the following day;
• therefore, the last day that the Minister was permitted to call in the proceeding was Monday 23 July 2018.

The Court rejected Waterfront's arguments that the extension rule in the IL Act did not apply to the statutory time frame in this case, due to the phrase 'no later than' and the adverse impacts on the Tribunal and the parties arising from a 'late' call in notice. In particular, the Court emphasised that the extension rule should be the 'general rule', and, because it is a rule of 'practical common sense', it should only be displaced where the legislation expressly intends for it to be displaced. The Court found there was no such express intention in this case.

Key takeaways

The decision is a reminder that calculating statutory time frames can be more complicated than you might think. There will be rules in other statutes dictating how to calculate those particular timeframes, some of which may lead to surprising results. The Waterfront decision is a perfect example of this - as a matter of law, applying the extension rule to the phrase 'no later than 7 days', the time to file a call in notice was seven days before the hearing.

For further information, please contact:

Annette Jones
Principal Solicitor
8684 0431

Lisette Stevens
Solicitor
8684 0475

Language matters in the transition to new legislation

The importance of clear and well-drafted transitional provisions was illustrated in the case of Director of Public Prosecutions (DPP) v Lyons (a pseudonym) [2018] VSCA 247 (Lyons).

Key points:

• Despite some unclear and inconsistent language in the 2018 Act's transitional provisions, the Court focused on the "irresistibly clear" language in Clause 5(2) of Schedule 4 to the 2018 Act and concluded that the application for a renewal of a detention order was to be heard and determined using the 2018 Act.
• Use clear language when drafting transitional provisions and ensure consistency of word use within clauses! When words can be given a ‘plain meaning’ this interpretation will be followed.
• A clause will only have a deeming effect if clear and express words are used (e.g. "is deemed to be").
• When using the Charter to interpret a statutory provision, the Court still looks first to the ‘plain meaning’ or the clear language of the statute.

Background

In Victoria, serious sex offenders and serious violent offenders that present an unacceptable risk to the community can be subject to ongoing supervision or detention after they have served their prison sentence. This post sentence scheme is contained in the Serious Offenders Act 2018 (2018 Act), which replaced the Serious Sex Offenders (Detention and Supervision) Act 2009 (2009 Act).

In Lyons, the Department of Public Prosecutions (DPP) sought to renew a detention order against Mr Lyons. The application was made under the 2009 Act; however, before the matter could be heard the 2009 Act was repealed and the 2018 Act commenced.

Which Act should the Court use to make its decision?

If the 2009 Act applied, only Mr Lyons’ risk of sexual re-offending could be considered by the Court. If the 2018 Act applied, the Court could consider Mr Lyons’ risk of sexual re-offending, violent re-offending, or both.

Clause 5(2) of Schedule 4 to the 2018 Act [Applications commenced under superseded Act that have not been determined] contains the transitional provisions and is as follows:

(1) Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day—  (a) an application for a supervision order, a detention order or an interim order;  (b) an application for the renewal or extension of an order referred to in paragraph (a);    (c) an application for the review of an order or a condition of an order referred to in paragraph (a).  (2) An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act. [our emphasis added]

The Court of Appeal considered the proper interpretation of the words ‘made under this Act’. The parties' positions were as follows:

• The DPP submitted that the application should be determined using the 2009 Act (meaning the Court could only consider Mr Lyons’ risk of sexual re-offending) but that the order should be ‘made’ following the form of the 2018 Act. The DPP relied on the text of clause 5(1).
• The Secretary to the Department of Justice and Community Safety submitted an order for Mr Lyons should be made and determined using the 2018 Act, meaning the Court could consider Mr Lyons’ risk of sexual or violent re-offending, or both.

The Court of Appeal's Judgment - key aspects of the decision

The Court focused on the "irresistibly clear" language in clause 5(2), namely ‘made under this Act’. The Court considered that these words clearly meant the application for a detention order against Mr Lyons was to be heard and determined using the 2018 Act. The Court also considered that this construction is consistent with the primary purpose of the 2018 Act which is to provide, from the commencement of the 2018 Act, for enhanced protection of the community.

The Court noted that its interpretation does not render clause 5(1) redundant because it operates to ensure that neither the DPP nor the Secretary need to bring fresh applications upon the commencement of the 2018 Act and repeal of the 2009 Act. Clause 5(1) also requires that any question concerning the adequacy of procedural steps taken before 3 September (the commencement date of the 2018 Act) is to be determined in accordance with the 2009 Act.

Some other points made by the Court of Appeal

Deeming provision: If clause 5(2) was a deeming provision, any order made under the 2009 Act would be 'deemed' to be an order made under the 2018 Act. The Court determined that clause 5(2) was not a deeming provision as it lacked the clear and express wording required of a deeming provision (for example, in Spear v Hallenstein 1  - the specific words 'is deemed to be' were used).

The Charter of Human Rights and Responsibilities: The Charter requires that, where possible, laws should be interpreted in a way that is compatible with human rights. If the 2018 Act applied, Mr Lyons' human rights would be detrimentally impacted because there would be an interference with Mr Lyons' liberty, freedom of movement and privacy on broader grounds than were previously available under the 2009 Act. However, the Court considered that there was no room for the Charter here because the 2018 Act's words were so clear. Also, the Statement of Compatibility (which records the Act's compatibility with human rights) did not refer to the transitional provisions. The Court held that the Minister's silence on a particular topic cannot be used to draw an inference as to the statute's proper interpretation nor can it be used as a substitute for an objective reading of the words in dispute.

Inconvenience caused? The Court acknowledged that inconvenience would result from the 2018 Act being used to determine the application for Mr Lyons (and for other matters). However, the Court found that some inconvenience is unavoidable when transitioning to new laws.

To find out more contact:

Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Rita Scammell, winter clerk, July 2019.


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1 Spear v Hallenstein [2018] VSC 169.

So I'm a 'retail' landlord - but what does that mean?

Government agencies are often landlords of 'retail premises' under the Retail Leases Act 2003, for example where the agency leases land at a train station for use as a café or part of a public hospital for use as a florist or kiosk.

The Retail Leases Act was introduced in 2003 to provide greater certainty and fairness in the commercial relationship between landlords and tenants. This was driven by a desire to protect and provide greater security of tenure for small businesses.

When you are negotiating a lease, it is crucial to identify at the outset of negotiations whether it is a 'retail lease' within the meaning of the Act. Where the Act applies, the parties to a lease cannot agree otherwise. A provision in a lease is void if it is inconsistent with anything in the Act.

In some instances, if the Act applies, a landlord may even prefer not to proceed with the transaction, for example, if the premises are likely to require significant and expensive capital repair or refurbishment, as this burden could fall on the landlord. It may be more economical to find a tenant who wishes to make use of the premises for non-retail purposes, if the nature of the premises permits.

Landlords' obligations

The Act imposes quite onerous obligations on landlords. Depending on the circumstances, there can be serious consequences for failure to comply, for example, the tenant may have a right to terminate (or conversely, to extend) the lease.

Some of the main obligations which the Act imposes on landlords are:

• Provide a copy of proposed lease and information brochure: the landlord must provide to a tenant copies of the proposed lease and the Victorian Small Business Commission information brochure, as soon as the parties enter into negotiations. Failure to do so is an offence against the Act.
• Disclosure requirements: the landlord is required to provide a Disclosure Statement to a tenant at least 7 days before entering into the lease, which sets out the key information about the lease.  If the landlord fails to provide a Disclosure Statement, the tenant may, after complying with certain notice requirements, withhold rent owed and is not liable to pay rent for the period from the day on which the tenant's notice was given until the tenant receives a Disclosure Statement. The tenant may also terminate the lease at any time before the end of 7 days after receiving the delayed Disclosure Statement.
• 5-year minimum term: the landlord must offer an initial term of at least 5 years (but the tenant can waive its right to a 5-year term with the Small Business Commissioner's approval).
• Provide a copy of the executed lease: the landlord must give the tenant a copy of the lease signed by the parties within 28 days of it being signed. If the landlord fails to do so, the tenant may give written notice terminating the lease.
• Obligation to notify tenant of options for renewal: where a lease contains an option to renew, the landlord must give the tenant notice in writing of the last date to exercise the option, between 6 and 12 months in advance of the date on which the option is no longer exercisable. Failure to do so means that the lease continues, and the period for exercising the option extends to six months after the landlord notifies the tenant as required.
• Notice of landlord's intentions concerning renewal: where a tenant does not have an option for renewal under the lease, the landlord must also give written notice between 6 and 12 months before the end of the lease. This notice must either offer lease renewal or state that the landlord is not offering a lease renewal. If the landlord fails to give notice within the period, the lease continues until six months after notice is finally given to the tenant, or when the tenant terminates the lease.
• Must allow transfer of lease: a landlord can only refuse consent to assign a lease in limited circumstances set out in s 60(1) of the Act, such as where the proposed use is not consistent with the permitted use under the lease.
• Obligation to maintain premises: the landlord must maintain the structure, fixtures and plant and equipment in the premises consistently with their condition at the beginning of the lease. The landlord cannot pass on capital costs incurred in complying with this obligation, such as major repairs and replacements, to the tenant.1
• Cannot pass on certain costs: the landlord cannot recover from the tenant any capital costs (unless the lease expressly requires the tenant to undertake certain specific capital works at the tenant's own cost), depreciation, land tax or legal costs related to preparing the lease.
• Unconscionable conduct: the Act prohibits unconscionable or unfair conduct by both landlords and tenants, and allows for compensation for loss caused by that conduct. 

Resolving disputes

Where parties cannot agree on resolution of an issue arising under a retail premises lease, either party may refer the dispute for mediation to the Victorian Small Business Commission (VSBC).

Only once the VSBC certifies that mediation has failed, can the parties apply to the Victorian Civil and Administrative Tribunal (VCAT) for a formal hearing.

VCAT has exclusive jurisdiction to hear and determine some disputes arising under a retail premises lease. VCAT also has the same jurisdiction and powers as the Supreme Court in relation to proceedings for relief against forfeiture. This means that tenants can seek an order allowing them to stay in the premises, even in circumstances where they have breached the lease and failed to rectify the breach within time, by satisfying VCAT that the tenant is in a position to promptly rectify the breach and the lease should be reinstated.

As property law experts within Government, the VGSO Property Team is well placed to assist you with retail leasing arrangements and other property issues.

For advice and assistance, please contact:

Anthony Leggiero
Managing Principal Solicitor
Ph: 9947 1430

Margaret Marotti
Managing Principal Solicitor
Ph: 9947 1410

Elizabeth Wortley 
Principal Solicitor
Ph: 9947 1433

This blog was prepared with the assistance of Margie Brown, Law Graduate.

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1 Small Business Commissioner Reference for Advisory Opinion [2015] VCAT 478

#dismissed: High Court upholds dismissal of public servant for anonymous tweets critical of government

In a landmark case on whether a public servant's use of social media can be a valid reason for terminating their employment, the High Court has unanimously upheld restrictions on a public servant's ability to make public comment where it may damage the integrity and good reputation of the public service.

In doing so, the Court has emphasised the importance of an apolitical and professional public service that will faithfully implement accepted government policy, irrespective of employees' personal political beliefs.

In Comcare v Michaela Banerji [2019] HCA 23 (7 August 2019), a now former Department of Immigration employee Ms Michaela Banerji had an anonymous twitter account where she was highly critical of Government and Opposition immigration policies, members of Parliament and the Department of Immigration.  After an investigation uncovered her identity, she was dismissed from her role for inappropriately using social media in contravention of the Public Service Act 1999 (Cth) (PS Act), the Australian Public Service (APS) Code of Conduct and APS Values.

Ms Banerji argued that the PS Act and APS Code of Conduct imposed an unjustified burden on the implied freedom of political communication under the Constitution.

The Court unanimously rejected this argument, emphasising that the implied freedom of political communication is not a personal right to free speech.  The Court held that the restrictions placed on political communication by public servants under the PS Act were consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance and protection an apolitical public service.

However, the Court emphasised that any action taken in response to a breach of the PS Act or APS Code of Conduct must be proportionate to the nature and gravity of the employee's misconduct.  Depending on the circumstances, this may range from a simple reprimand to the termination of a person's employment.  In responding to a potential breach, an employer must act reasonably, provide procedural fairness and take into account the personal circumstances of the employee.

A summary of the Court's decision can be found here.

VGSO's Workplace Relations and Occupational Safety Branch has significant expertise and experience in advising employers on potential breaches of the Code of Conduct for Victorian Public Sector Employees and Victorian Public Sector Values.  We also run training programs for human resources professionals in the public sector, including on the use of social media in the workplace. 

VGSO's Constitution and Advice Team also has significant experience and expertise in dealing with the intersection between the implied freedom of political communication and state laws, including decision-making under those laws.

If you work in the public sector and require further information please contact us:

Workplace Relations team

Frances Anderson
Assistant Victorian Government Solicitor

Ronan O'Donnell
Solicitor, Workplace Relations and Occupational Safety

Constitution and Advice team

Alison O'Brien
Assistant Victorian Government Solicitor

Jessica Cleaver
Managing Principal Solicitor, Constitution and Advice team

Maya Narayan
Principal Solicitor, Constitution and Advice team


This blog was prepared with the assistance of Margie Brown, Law Graduate. 

Reflections on the Charter — Kristen Walker QC, Solicitor-General of Victoria

On Thursday 21 February, the VGSO kicked off its seminar series for 2019 with a presentation by Kristen Walker QC, Solicitor-General of Victoria (SG), who shared her reflections on the Charter of Human Rights and Responsibilities 2006 (Charter). Now in its 13th year of operation, the Charter has become an accepted and familiar part of government decision-making. In a jam-packed hour, the SG spoke about recent cases involving the Charter and the obligation of public authorities to give 'proper consideration' to relevant human rights in decision-making, as well as canvassed potential future directions for Charter jurisprudence.

Recent s 38 cases

One of the ways in which the Charter seeks to affect the exercise of public power is through s 38, which imposes an obligation on public authorities to act in a way that is compatible with human rights and to give proper consideration to human rights when making a decision. These obligations have been considered recently in three cases coming out of the Supreme Court. Briefly, these cases involved:

• VCAT's failure to act compatibly with the rights of two patients to equality, privacy, and freedom from non-consensual medical treatment under ss 8, 13 and 10 when assessing their mental capacity to refuse electro-convulsive treatment (PBU & NJE v Mental Health Tribunal);
• a police officer's failure to act compatibly with an Italian speaker's right to equal and effective protection against discrimination under s 8 in conducting a police interview without an interpreter present (DPP v Natale (Ruling)); and 
• a prison governor's failure to properly consider a prisoner's rights to religion and expression under ss 14 and 15 when deciding to withhold four tarot cards required for his practice of paganism (Haigh v Ryan).

Proper consideration 

Given the importance of public authorities properly considering relevant human rights in decision-making, the SG focused on the question — what does 'proper' consideration mean? The obligation in s 38 enforces a higher benchmark than the common law requirement to take account of relevant considerations, however, there is ambiguity regarding the standard it requires. The SG provided some guidance, referring to principles from Castles v Secretary, Bare v IBAC and Certain Children (No 2). She also highlighted the importance of recording Charter considerations during the decision-making process (including in the written record and affidavits), getting the facts right, obtaining legal advice (although noting that this may increase the standard required for proper consideration) and ensuring that the exercise is not a mere 'mantra' or formula.

There is no one-size-fits-all method to fulfil the requirements of s 38; instead, what is required is a case-specific, calibrated exercise that will depend on the powers being exercised, the rights and interests engaged, and the circumstances of the individual whose rights may be affected. These requirements reflect the underlying purpose of the Charter, which is to create a normative effect on the everyday conduct of public authorities and to institute a culture of human rights in government decision-making.

Future directions
 

In addition to discussing the meaning of proper consideration under s 38, the SG highlighted some of the complexities that still surround the operation of the Charter. These include:

• the application of the Charter to courts under s 6(2)(b), considered in the recent case of Cemino v Cannan, where it was held that the Magistrates' Court had an obligation to apply the Charter, not as a public authority but as a court exercising judicial power to the extent that its functions pertained to relevant human rights;
• whether an assessment of the compatibility of a statutory provision with human rights (under s 32) should involve consideration of the reasonable limitation of those rights (under s 7(2)), an issue which arose in the recent case of DPP v Rayment; and
• the requirements of s 39, which allow a person to bring a claim for unlawfulness under the Charter if certain conditions are met

The SG concluded by looking to the future of the Charter. In particular, she considered the effect that the introduction of the Human Rights Act in Queensland would have on the Victorian Charter. Finding the two acts to be broadly similar, the SG commented that the Queensland Act is a welcome development that will assist in the interpretation of the Victorian Charter as well as enrich human rights jurisprudence in Australia.

To find out more contact:

Catherine Roberts

Managing Principal Solicitor 

Victorian Government Solicitors Office 

T: 03 86840247 

E: catherine.roberts@vgso.vic.gov.au 

Sasha Ponniah

Senior Solicitor

Victorian Government Solicitors Office

T:03 86840220 

E:sasha.ponniah@vgso.vic.gov.au    

Native Title Compensation Case (Timber Creek) Decision : At A Glance

Each judgment in the Timber Creek case has been highly anticipated.  As the first litigated native title compensation case, the judgments provide guidance on: How to value economic loss?  How to calculate interest on the compensation for economic loss?  How to value the non-economic loss? 

The case was brought by the Ngaliwurru and Nungali Peoples who are the recognised native title holders of their traditional land and waters in the north-west of the Northern Territory near the Victoria River.  Following their recognition as native title holders, the Ngaliwurru and Nungali Peoples sought compensation on just terms for loss, diminution, impairment or other effect on their native title rights and interests.

While the reasoning is highly fact specific, we now have judicial guidance on these complex topics.

	Federal Court 20 July 2016 [1]	Full Federal Court 20 July 2017 [2]	High Court 13 March 2019 [3]
Economic loss	80% of the freehold value of the land at the date the compensable act occurred $512,400	65% of the freehold value of the land at the date the compensable act occurred $416,325	50% of the freehold value of the land at the date the compensable act occurred $320,250
Interest	Simple interest from the date the compensable act occurred to the date of judgment $1,488,261	Upheld - pattern of business investments did not warrant payment of compound interest $1,183,121	Upheld - noting compound interest is available but not warranted in this instance $910,100
Non-economic loss/ Cultural loss	Calculated on a global basis having regard to the consequential effects on the ability to care for country $1,300,000	Upheld $1,300,000	Upheld - noting that the trial judge heard all of the  evidence and that this figure may be rightly regarded by society as an appropriate award for cultural loss $1,300,000
	$3,300,261	$2,899,446	$2,530,350

VGSO advises government departments, agencies and statutory authorities on how to comply with the Native Title Act 1993 (Cth), the Aboriginal Heritage Act 2006 (Vic) and the Traditional Owner Settlement Act 2010 (Vic).  This is part of VGSO's exclusive area of work.  

We appear for the State of Victoria in Federal Court proceedings and mediations as well as mining arbitrations conducted by the National Native Title Tribunal.   

We are well placed to advise you on the implications of this significant case and compliance generally in relation to any Crown land dealings across the State.  

To find out more contact:

Julie Freeman
Assistant Victorian Government Solicitor

99471404

Mary Scalzo

Managing Principal Solicitor

99471419 

Brendan McIntyre

Principal Solicitor

99471435

James Stephens

Principal Solicitor

99471422 

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[1] Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900

[2] Northern Territory of Australia v Griffiths [2017] FCAFC 106

[3] Northern Territory of Australia v Griffiths [2019] HCA 7

Government buyers, are you up to speed on the new Local Jobs First Policy?

New Policy Overview

All Victorian Government departments and agencies procuring goods, services or construction need to consider the State's revised industry participation framework, the Local Jobs First Policy (Policy).

The Policy harnesses the Victorian Government's purchasing power to support Victorian businesses and workers by requiring certain local content and skills thresholds in procurement projects.  The Policy aims to develop local industries, create job opportunities and boost economic development in Victoria.

The existing Victorian Industry Participation Policy Act 2003 has been amended to the Local Jobs First Act 2003 (Act) which now comprises the Victorian Industry Participation Policy (VIPP) and the Major Projects Skills Guarantee (MPSG).

VIPP

VIPP applies to procurement activities funded by the State government and comes in two forms:

1. Standard Projects are those where the procurement activity meets or exceeds either:
   1.1 $1 million in regional Victoria; or
   1.2 $3 million in metropolitan Melbourne or for state-wide activities.
2. Strategic Projects are those where the procurement activity is valued at $50 million or more, excluding maintenance and operational costs.

The value of a project refers to the total budget allocated over the life of the project and not the value of individual contracts, excluding GST.  Depending on the project, VIPP requires that a percentage of a project's value is comprised of content from Australia or New Zealand (Local Content).

Local Content Requirements 

Standard Projects must have a minimum of 10% Local Content while Strategic Projects must meet Local Content requirements of at least:

• 90% for construction projects;
• 80% for services projects or maintenance projects; and
• 80% for the maintenance or operations phase of a Strategic Project. 

Local Content requirements for other types of Strategic Projects will be set on a case-by case basis, on advice from the Industry Capability Network (ICN).

The ICN is a not-for-profit organisation funded by the Victorian Government and can assist parties in sourcing goods and services in local markets ('contestable goods or services').

Non-Contestable Goods or Services

If a good or service cannot be procured locally it is deemed non-contestable.  The cost of non-contestable goods or services may be subtracted from the Local Content requirement of a project.

MPSG

MPSG is a mandatory requirement for Victorian Government departments and agencies funding building, construction, infrastructure, civil engineering or other capital works contracts totalling $20 million or over (inclusive of GST).

MPSG requires a minimum 10% of the total labour hours for a project be performed by either Victorian apprentices, trainees or cadets, or from any combination from these groups.

The total labour hours of a project is calculated using formulas proscribed in the MPSG Guidelines published by Jobs Victoria.  Using the total cost of a project (inclusive of GST) a contractor can determine the amount of labour hours of the project in order to set a specific MPSG.

Tender Process

For projects covered by the Policy, bidders will be required to submit a Local Industry Development Plan (LIDP) for approval by ICN.

An LIDP must detail how a bidder will achieve Local Content and MPSG requirements and assists Government buyers to determine which bidder to award a contract to.

Reporting and Compliance

There are mandatory reporting and compliance requirements for any project covered by the Policy which must be included in procurement contracts.  Model clauses for reporting and compliance, (among other relevant clauses) will be released shortly.

A contractor's failure to comply with VIPP or MPSG requirements will constitute a breach of contract.  All breaches are reported to the Department Economic Development, Jobs Transport and Resources.  Non-compliance with VIPP or MPSG will be considered in any assessment or review of that contractor’s eligibility to tender for Victorian Government contracts in the future.

How we can help -further information

We provide responsive legal services exclusively for the Victorian Government and public sector and our team has extensive experience advising government buyers in a wide range of contexts.

We speak your language, share your values, and we understand the policy and accountability frameworks in which you operate.  Our ability to understand the complexities of government means we provide tailored and independent advice to help you serve the State of Victoria.

For responsive advice on procurement and the new Local Jobs First Policy please contact our team who have a long history of advising the Victorian Public Sector and are best placed to help you find strategic and practical solutions.

Please contact :

Rebecca Radford
Managing Principal Solicitor
9947 1403

Brendan McIntyre
Principal Solicitor
9947 1435

Benjamin Lunardi
Solicitor
9947 1440

Recent amendments to the Coroners Act

The Justice Legislation Miscellaneous Amendment Act 2018 (Vic) (the Amendment Act) received Royal Assent on 25 September 2018.  As well as amending a number of justice-related Acts to "improve the law, reduce delay and protect victims", [1] the Amendment Act makes critical revisions to the Coroners Act 2008 (Vic) (2008 Act) to:

• allow certain persons to apply to the Coroners Court of Victoria (the Court) for an amendment to the wording of a decision made by a coroner or the Court, without re-opening the death investigation; and
• make it clearer that a person has the legislative option to have, under the Coroners Act 1958 (1958 Act), the Coroners Act 1985 (1985 Act) and the 2008 Act, findings set aside regardless of whether the investigation is re-opened, provided the Court is satisfied that there are new facts and circumstances that make it appropriate to do so.

The changes are in response to the Coronial Council Appeals Review which examined the review and appeal rights under the 2008 Act.

Section 76A - Amending the wording of a decision

The Amendment Act now enables, within three months after a decision is made, the following categories of people to apply to the Court for an Order to amend the wording of a decision made by a coroner or the Court in relation to a death investigation:

• senior next of kin of a deceased person; or
• an interested party in relation to an inquest in respect of the death; or
• any other person that the Court is satisfied:
• has a sufficient interest in the investigation; and 
• that it is appropriate to be granted leave to make the application.

The new provision allows for an Order that the wording of the decision be amended if the following criteria is satisfied:

• the amendment would not be inconsistent with a finding, under section 67(1) of the 2008 Act, in relation to the investigation to which the decision relates;
• the amendment would not require the investigation to be re-opened;
• the amendment does not appear to be prejudicial to a person (other than the applicant) who is an interested party in relation to an inquest in respect of the death; and
• the amendment is appropriate in all the circumstances.

It is envisaged that this provision will allow for corrections of a mistake or removal of inappropriate comments, provided they do not change the substance of the finding.

An Order for amendment to the wording of a decision must be made by the coroner who conducted the original investigation unless that coroner no longer holds the office of coroner; or there are special circumstances as to why they cannot determine the application.

Prior to the Amendment Act, there was no legal power for a coroner to amend the wording of a decision or findings that they had made. The only legislative options available were:

• for a person with a sufficient interest in the investigation to lodge an appeal, in the Supreme Court, against the findings of the coroner; or
• for a person to lodge an appeal against a refusal by a coroner to re-open an investigation.

The new provision now allows for amendments to be made to a finding that are not captured by the slip rule in section 76 of the 2008 Act (which allows for the correction of accidental slips or omissions, or other clerical mistakes).

The Supreme Court matter of Hecht v Coroners Court of Victoria [2016] VSC 635 highlighted the need for this amendment.  This case involved an application by the deceased's parents to amend two impugned paragraphs of the coroner's findings which they maintained were adverse to the reputation of their deceased daughter.  Prior to the appeal, the parents made an application to the Court to re-open the investigation into their daughter's death and have the impugned findings set aside.  The parents' application was refused and they subsequently lodged an appeal in the Supreme Court.

Prior to the Supreme Court hearing, the parties reached agreement as to the disposition of the appeal to delete the two impugned findings. However, the Associate Justice declined to make the orders as his Honour was concerned there was no legislative basis for such an agreement.

Section 77 - Clarifying the provisions in relation to re-opening an investigation or setting aside a finding

When the 2008 Act originally came into force, it was commended for broadening appeal and review rights of families, better facilitating appeals to the Supreme Court, and permitting the Court to re-open investigations into a death regardless of whether a formal inquest was held.

Many of the fundamental changes were drawn from the work of the Victorian Parliament Law Reform Committee (VPLRC).  The VPLRC conducted a comprehensive analysis of the coronial system, as it existed under the 1985 Act.[2]

Despite the laudable aims of the 2008 Act, ambiguous wording of section 77 of the 2008 Act and the transitional provisions created a jurisdictional hurdle for parties seeking to re-open a historical investigation and set aside any findings which occurred prior to the commencement of the 2008 Act.  This was despite potentially critical new evidence concerning a death coming to light post commencement of the 2008 Act.

Judicial consideration

In early 2018, the State Coroner, Judge Sara Hinchey, was called upon to consider the above ambiguity, and consider her jurisdiction to re-open historical investigations for the purpose of setting aside certain findings.

Prior to the State Coroner reaching a conclusion on this point, the interpretation of section 77 of the 2008 Act was the subject of proceedings brought in the Supreme Court before his Honour Justice Niall.  Representatives for families of deceased persons argued that the 2008 Act was designed to enhance, not restrict, families' access to the coronial system and as such it could not have been Parliament's intention that section 77 not operate retrospectively.[3]

In the course of parties waiting for judgment in this matter, and as a response to a 2017 Coronial Council of Victoria Appeals Reference Report,[4] then Attorney-General Martin Pakula announced proposed changes to the 2008 Act to clarify the ambiguity.

What was the ambiguity?

The 2008 Act introduced a provision which allowed a person to apply to the Court for an order to re-open an investigation and set aside the findings of a coroner.  This was a broader right than what existed under the 1985 Act, which only allowed the State Coroner to revisit inquests, rather than investigations.[5]  However, 'findings of a coroner' and 'investigation' were not defined in the 2008 Act.  As such, it was unclear from the face of the legislation whether findings could be set aside, or an investigation could be re-opened, in circumstances where that investigation occurred under a predecessor act. 

In addition, the wording of section 77 created ambiguity as it only provided that some or all of the findings be set aside and that an investigation could only be re-opened if considered appropriate.

The Amendment Act now makes it clearer that a person has the legislative option to have (regardless of whether the findings were made under 1958 Act, the 1985 Act or the 2008 Act) findings set aside regardless of whether the investigation is re-opened, provided the Court is satisfied that there are new facts and circumstances that make it appropriate to do so.

Also of note are that the terms 'findings of a coroner' and 'investigation' are now defined in the 2008 Act.

Any investigations which are re-opened under this section will be conducted as if they are investigations under the 2008 Act.  The Amendment Act also extends the time limit for lodging an appeal against a refusal by the Coroners Court to re-open an investigation from 28 days to three months.

The Amendment Act also provides that the Attorney-General must cause a review, for the purpose of assessing the operation and effectiveness of amendments, to be conducted within three years of the amendments commencing.

For further information on the amendments and their implications please contact:

Jodie Burns
Managing Principal Solicitor
9032 3012

Laura Elliott
Solicitor
8684 0134

__________________

[1] Victoria, Parliamentary Debates, Legislative Council, 26 July 2018, 3401-02 (Jenny Mikakos, Minister for Families and Children).

[2] Law Reform Committee, Parliament of Victoria, Coroners Act 1985 (2006).

[3] Justice Niall had previously ruled that parties could not bring their applications under the repealed 1958 and 1985 Acts: See James v Mason [2018] VSC 170 and Spear v Hallenstein [2018] VSC 169.

[4] Coronial Council of Victoria, Coronial Council Appeals Review - Reference 4 (2017).

[5] See Coroners Act 1985 (Vic) s 59A.