Friday, 9 August 2019

#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. 

Monday, 1 July 2019

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:

Managing Principal Solicitor 
Victorian Government Solicitors Office 
T: 03 86840247 

Sasha Ponniah
Senior Solicitor
Victorian Government Solicitors Office
T:03 86840220    

Tuesday, 2 April 2019

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
65% of the freehold value of the land at the date the compensable act occurred
50% of the freehold value of the land at the date the compensable act occurred
Simple interest from the date the compensable act occurred to the date of judgment
Upheld - pattern of business investments did not warrant payment of compound interest
Upheld - noting compound interest is available but not warranted in this instance
Non-economic loss/ Cultural loss
Calculated on a global basis having regard to the consequential effects on the ability to care for country
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


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

Managing Principal Solicitor

Principal Solicitor

Principal Solicitor

[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

Wednesday, 9 January 2019

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 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 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
9947 1440

Thursday, 3 January 2019

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
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.