tag:blogger.com,1999:blog-67173829268942855812024-03-13T21:41:41.437+11:00VGSO BlogUpdates on legal developments by the Victorian Government Solicitor's OfficeVGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.comBlogger141125tag:blogger.com,1999:blog-6717382926894285581.post-86971368209685859772020-05-05T11:08:00.000+10:002020-05-05T11:14:48.208+10:00Government landlords - what the new COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 mean for youThe <i>COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020</i> were made on Friday 1 May 2020, with retrospective effect from 29 March 2020. The regulations apply to the State and its agencies when it is acting as a landlord or a licensor.<br />
<br />
The most relevant aspects of the regulations in your context are as follows:<br />
<br />
The<b> regulations</b> apply when all of the following criteria are met:<br />
<br />
<ol>
<li>The agreement is a commercial lease or licence, including a retail lease and was in effect on 29 March 2020; and</li>
<li>The tenant is a SME entity as defined in the Commonwealth's Jobkeeper scheme and is a participant in this scheme.</li>
</ol>
<br />
Landlords are prevented from:<br />
<br />
<ol>
<li><b>evicting the tenant</b>, re-entering or recovering possession of the premises, or otherwise drawing on the tenant's security for performance (eg, security deposit, bank guarantee, etc)<b> if the tenant does not pay rent or changes their trading hours in certain circumstances</b> during the period between 29 March and 29 September 2020. (The landlord can continue to exercise its enforcement rig for other breach types); or </li>
<li><b>increasing the base rent </b>between 29 March and 29 September 2020, unless the parties agree otherwise in writing.</li>
</ol>
<br />
If a landlord receives the benefit of a <b>reduction in a third party outgoing</b> (e.g. electricity rates, land tax), it cannot charge the tenant more than the tenant's proportionate share of the reduced outgoing payable and must reimburse the tenant for excess monies already paid.<br />
<br />
Tenants initiate the <b>rent relief</b> process. The landlord must respond within 14 days unless the tenant agrees to a longer time period. The landlord's offer must conform with the requirements specified at regulation 10(4). If the tenant's financial circumstances materially change later on, the tenant can make a further request restarting the process.<br />
<br />
For any rent deferred under the agreed rent relief arrangements, the landlord must:<br />
<br />
<ol>
<li>not charge interest or other charges on the deferred rent;</li>
<li>offer to extend the lease term by the deferral period on the same terms and conditions;</li>
<li>allow the deferred rent to be amortised over the greater of 24 months or the rest of the term; and</li>
<li>delay payment of the deferred rent until the earlier of 30 September 2020 and term expiry (not including any deferred rent extension).</li>
</ol>
<br />
<b>If a tenant cannot operate their business</b> at the premises at any time between 29 March to 29 September 2020, a landlord must consider waiving outgoings and other expense recovery rights. In turn, landlords can reasonably cease or reduce provision of services at the premises during this disruption period.<br />
<br />
If there is a <b>dispute</b>, either party can refer the dispute to the Victorian Small Business Commission (<b>VSBC</b>). Before a party can commence proceedings in VCAT or a court (other than the Supreme Court), that party needs a certificate from VSBC that mediation has failed or is unlikely to resolve the dispute.<br />
<br />
Landlords and tenants have a general obligation to <b>cooperate</b> and act reasonably and <b>in good faith</b> in all associated discussions and actions.<br />
<br />
The Regulations override anything to the contrary in the terms of an eligible lease and modify existing legislation and common law.<br />
<br />
We recommend developing your internal processes and negotiation strategy now for meeting your landlord obligations, in readiness for receipt of rent relief requests. We are happy to assist Victorian public entities with this.<br />
<br />
<i>The VGSO Property Team provide a full-service property law and Crown land practice to all aspects of the Victorian public sector. In particular, the Property Team can assist with drafting and negotiating deeds of variation and side agreements for delivering rent relief, and provide advice on application of the Regulations to your leasing portfolio. </i><br />
<br />
To find out more, contact:<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/margaret-marotti" target="_blank">Margaret Marotti</a><br />
Managing Principal Solicitor<br />
Victorian Government Solicitor's Office<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/anthony-leggiero" target="_blank">Anthony Leggiero</a><br />
Managing Principal Solicitor<br />
Victorian Government Solicitor's Office<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/lauren-walley" target="_blank">Lauren Walley</a><br />
Senior Solicitor<br />
Victorian Government Solicitor's Office<br />
<div>
<br /></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-50545910141811207722020-03-23T10:18:00.000+11:002020-03-23T11:05:02.902+11:00Farming and agricultural leases confirmed as not part of the Retail Leases Act 2003 - what is covered and what will this mean to you?The Minister for Small Business has made a determination that the <i>Retail Leases Act 2003</i> does not apply to leases of farm premises for commercial farming or agricultural purposes.<br />
<br />
<h3>
What farming and agricultural leases are covered by this exclusion?</h3>
<br />
The Minister's determination confirms that a lease will not be caught by the Retail Leases Act 2003 if the lease is to use the premises <b><i>wholly or predominantly</i></b> for any of the following activities <i><b>for commercial gain</b></i>:<br />
<br />
<ul>
<li>Agricultural, pastoral, horticultural or apicultural activities</li>
<li>Poultry farming, dairy farming, aquaculture, tree-farming or any business that consists of the cultivation of soils, the gathering of crops or rearing of livestock</li>
<li>Grazing, including agistment</li>
<li>Activities prescribed as a farming operation for the purpose of the <i>Farm Debt Mediation Act 2011</i>. At this time there are no farming operations prescribed under that Act.</li>
</ul>
<br />
This exclusion is likely not to extend to tenants who lease farm land to carry out retail sale of goods and services to the public, so that the lease cannot be said to be wholly or predominantly for one or more of the above activities. For example, leased premises used for operating cheese stores or winery cellar doors open to the public in some circumstances.<br />
<br />
The exclusion will also not extend to tenants who are not operating for commercial gain. E.g. Hobby farming; for charitable or public purposes.<br />
<br />
This exclusion takes effect from 29 October 2019, and all leases entered into or renewed from that date.<br />
<br />
<h3>
What does this mean for you?</h3>
<br />
In negotiating a new farming or agricultural lease, landlords and tenants should consider whether the tenant's proposed operations on the land meet the criteria of the exclusion set out above. Amendments can then be made to the proposal depending on whether the parties would like the <i>Retail Leases Act 2003</i> to apply.<br />
<br />
When preparing or re-negotiating the lease, the permitted use under the lease should be appropriately drafted to ensure the lease is not captured by the <i>Retail Leases Act 2003</i>. <br />
<br />
For advice and assistance, please contact:<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/margaret-marotti" target="_blank">Margaret Marotti</a><br />
Managing Principal Solicitor<br />
Ph: 9947 1410<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/lauren-walley" target="_blank">Lauren Walley</a><br />
Senior Solicitor<br />
Ph: 9947 1454<br />
<div>
<br /></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-33653314365624568612019-12-04T10:49:00.000+11:002019-12-04T10:49:54.463+11:00New Victorian workplace manslaughter offencesVictoria now joins the Australian Capital Territory and Queensland in having specific health and safety manslaughter laws in place. On 26 November 2019, the <i>Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019</i> was passed, without amendment, by the Victorian Legislative Council and will commence operation by 1 July 2020.<br />
<br />
This legislation creates two offences of workplace manslaughter in the <i>Occupational Health and Safety Act 2004</i> (<b>OHS Act</b>) for the following duty-holders:<br />
<br />
<ul>
<li>a person (which includes Victorian public sector bodies) who is not a volunteer.</li>
<li>a person who is an officer of an applicable entity, who is not a volunteer.</li>
</ul>
<br />
These offences have significant implications for both employers and officers.<br />
<br />
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.<br />
<br />
<h3>
What constitutes 'workplace manslaughter'?</h3>
<br />
The new offences provides that employers, self-employed people and officers of the employers must not engage in conduct that:<br />
<br />
(a) is criminally negligent; and<br />
<br />
(b) constitutes a breach of an applicable duty that the person owes to another person; and<br />
<br />
(c) causes the death of a person at or near a workplace.<br />
<br />
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.<br />
<br />
<h3>
Key takeaways</h3>
<br />
<ul>
<li>two new offences of workplace manslaughter will commence operation in the OHS Act from 1 July 2020, at the latest.</li>
<li>the new offences will be not able to be determined in the Magistrates' Court.</li>
<li>WorkSafe Victoria will investigate the new offences of workplace manslaughter using their existing powers under the OHS Act. </li>
<li>the privilege of self-incrimination will be able to be claimed by an individual.</li>
<li>volunteers and employees who are not 'officers' cannot be charged with workplace manslaughter under the OHS Act.</li>
<li>there will be no statutory time limit within which WorkSafe can bring a charge of workplace manslaughter.</li>
<li>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.</li>
<li>the Andrews Government has committed a $10 million package to boost WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences.</li>
</ul>
<i><br />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.</i><br />
<br />
<h4>
To find out more contact:</h4>
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/jodie-burns" target="_blank">Jodie Burns</a><br />
Managing Principal Solicitor<br />
Victorian Government Solicitor's Office<br />
<br />
Harry Kinkead<br />
Senior Solicitor<br />
Victorian Government Solicitor's Office<br />
<div>
<br /></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-90840681948647761692019-12-03T12:31:00.002+11:002019-12-03T13:19:28.650+11:00VCAT confirms scope of data security obligations when serving documentsA recent <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2019/1641.html?context=1;query=zeqaj;mask_path=au/cases/vic/VCAT" target="_blank">VCAT decision</a> 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.<br />
<br />
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 (<b>IPP</b>) 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.<br />
<br />
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.<br />
<br />
VCAT also found that it did not have jurisdiction to consider Mr Zeqaj's claim that his rights under the <i>Charter of Human Rights and Responsibilities Act 2006</i> 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.<br />
<br />
<b>Contact us: </b><br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/louise-mcneil" target="_blank">Louise McNeil</a><br />
Senior Solicitor<br />
louise.mcneil@vgso.vic.gov.au<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/catherine-roberts-0" target="_blank">Catherine Roberts</a><br />
Lead Counsel<br />
catherine.roberts@vgso.vic.gov.au<br />
<br />
<b>Case:</b> <i>Zeqaj v Victoria Police</i> (Human Rights) [2019] VCAT 1641<br />
<div>
<br /></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-64697857974972657802019-11-28T15:15:00.000+11:002019-11-28T15:16:18.304+11:00How to vary a custodial supervision order: clarifying the legal testIn a recent decision in <i><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2018/356.html?context=1;query=%22Hammond%20(a%20Pseudonym)%20v%20Secretary%20to%20Department%20of%20Health%22;mask_path=au/cases/vic/VSCA" target="_blank">Hammond (a Pseudonym) v Secretary to Department of Health and Human Services</a></i>, the Court of Appeal took the opportunity to clarify when a court can vary a Custodial Supervision Order (<b>CSO</b>), 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.<br />
<br />
<h4>
Key takeaways</h4>
<br />
<ul>
<li>When deciding whether to vary a CSO to an Non-Custodial Supervision Order (<b>NCSO</b>), 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.</li>
<li>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.</li>
</ul>
<br />
<h4>
What does the Act say?</h4>
<div>
<br /></div>
Courts have the power to vary or confirm a CSO under the <i><a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/ltobjst10.nsf/DDE300B846EED9C7CA257616000A3571/A0D67EB06FCDFB5ACA2583AE0082C911/$FILE/97-65aa073%20authorised.pdf" target="_blank">Crimes (Mental Impairment and Unfitness to be Tried) Act 1997</a></i> (<b>Act</b>). The court has three options under the Act:<br />
<br />
<ul>
<li>to confirm the order;</li>
<li>to vary the place where the person is held in custody; or</li>
<li>to vary the order to an NCSO.</li>
</ul>
<div>
<br /></div>
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.<br />
<br />
<h4>
Mr Hammond's case</h4>
<br />
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.<br />
<br />
<h4>
The Court's decision</h4>
<br />
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 <b>the central task is to determine whether varying an order to an NCSO will 'seriously endanger' the person or the public</b>.<br />
<br />
The majority stated that the court must assess the probability of harm, as explained in <i><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2012/198.html" target="_blank">NOM v Director of Public Prosecutions</a></i>. 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.<br />
<br />
The Court also shed light on some of the questions that should <b>not</b> determine the outcome of an application. For example:<br />
<br />
<ul>
<li>that a person is on an extended leave order does not preclude them from successfully arguing that a CSO should be varied; and</li>
<li>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'.)</li>
</ul>
<br />
<h4>
No costs order</h4>
<br />
The Court of Appeal <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/45.html" target="_blank">decided</a> not to order the Attorney-General to pay the costs of the proceeding on the following grounds:<br />
<br />
<ul>
<li>the Attorney-General served the public interest by answering a novel legal question and assisted the Court by putting a clear position with substance;</li>
<li>Mr Hammond did not personally incur any expenses (he was funded by Legal Aid) and had no grounds to expect to receive costs;</li>
<li>the proceeding had the hallmarks of a criminal appeal where costs are not usually awarded against the State; and</li>
<li>awarding costs against the Attorney-General amounts to transferring funds 'from one emanation of the State to another'.</li>
</ul>
<br />
<h4>
To find out more contact:</h4>
<br />
Liam McAuliffe<br />
Principal Solicitor<br />
Victorian Government Solicitor's Office<br />
<br />
<i>This blog was produced with the assistance of Tyrone Connell, winter clerk, July 2019.</i>VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-23403689845667660052019-10-25T11:07:00.000+11:002019-10-25T13:25:27.230+11:00A question of time: calculating statutory time limitsStatutory time limits for taking action are described in different ways within legislation, making (what should be) simple maths complicated for lawyers and decision-makers.<br />
<br />
The <i>Victorian Civil and Administrative Tribunal Act 1998</i> (<b>VCAT Act</b>) includes the following two examples of statutory time limits:<br />
<br />
<ul>
<li>a Ministerial call-in notice is of no effect unless it is given <i><u>no later than 7 days before</u></i> the day fixed for the hearing of the proceeding (cl 58(2), Sch 1, VCAT Act);</li>
<li>a request to a decision-maker for a statement of reasons must be made in writing <i><u>within 28 days after</u></i> the day on which the decision was made (s 45, VCAT Act).</li>
</ul>
<br />
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?<br />
<br />
<h3>
The laws on statutory time limits</h3>
<br />
Luckily, we do have some guidance on how to count these time periods. Section 44 of the <i>Interpretation of Legislation Act 1984</i> (<b>IL Act</b>) sets out rules for counting days under Victorian legislation. For example:<br />
<br />
<ul>
<li>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 <i>not</i> a Saturday, Sunday or a public holiday. This is sometimes called the 'extension rule'; </li>
<li>If a period of time ends on a specific day, that day is included in the period;</li>
<li>If a period begins on a specific day, that day is not included in the period.</li>
</ul>
<br />
<h3>
<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/156.html?context=1;query=%5b2019%5d%20VSCA%20156;mask_path=" target="_blank">Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156 </a></h3>
<br />
Section 44 of the IL Act was directly at issue in the recent Supreme Court of Appeal decision of <i>Waterfront Place Pty Ltd v Minister for Planning</i> [2019] VSCA 156.<br />
<br />
<h4>
The facts</h4>
<br />
The Applicant (<b>Waterfront</b>) owns land in Port Melbourne. On 24 October 2016, Waterfront applied to Port Phillip City Council (<b>Council</b>) 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 (<b>Tribunal</b>) to review the Council's decision.<br />
<br />
The Minister for Planning (the<b> Minister</b>) 'called in' (i.e. 'intervened in') the proceeding, pursuant to the power under cl 58(2) of Schedule 1 of the VCAT Act.<br />
<br />
To be valid, a call in notice must be submitted <i><u>no later than 7 days before</u></i> the date of the hearing. In this case:<br />
<br />
<ul>
<li>the hearing was listed on Monday, 30 July 2018; and</li>
<li>the Minister called in the proceeding on Monday 23 July 2018.</li>
</ul>
<br />
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.<br />
<br />
The Court reasoned as follows:<br />
<br />
<ul>
<li>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);</li>
<li>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;</li>
<li>therefore, the last day that the Minister was permitted to call in the proceeding was Monday 23 July 2018.</li>
</ul>
<br />
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.<br />
<br />
<h3>
Key takeaways</h3>
<br />
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.<br />
<br />
<b>For further information, please contact:</b><br />
<b><br /></b>
<a href="https://www.vgso.vic.gov.au/our-people/profile/annette-jones" target="_blank">Annette Jones</a><br />
Principal Solicitor<br />
8684 0431<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/lisette-stevens" target="_blank">Lisette Stevens</a><br />
Solicitor<br />
8684 0475<br />
<br />
<div>
<br /></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-25457298422159061742019-10-10T13:48:00.000+11:002019-10-10T13:48:59.950+11:00Language matters in the transition to new legislationThe importance of clear and well-drafted transitional provisions was illustrated in the case of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2018/247.html?context=1;query=dpp%20v%20lyons;mask_path=" target="_blank"><i>Director of Public Prosecutions (DPP) v Lyons (a pseudonym)</i> [2018] VSCA 247</a> (<b><i>Lyons</i></b>).<br />
<br />
<h3>
Key points:</h3>
<br />
<ul>
<li>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 <b>heard and determined using the 2018 Ac</b>t.</li>
<li>Use <b>clear language</b> 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.</li>
<li>A clause will only have a <b>deeming effect</b> if clear and express words are used (e.g. "is deemed to be").</li>
<li>When using the <b><i>Charter </i></b>to interpret a statutory provision, the Court still looks first to the ‘plain meaning’ or the clear language of the statute.</li>
</ul>
<h3>
<i>Background</i></h3>
<br />
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 <i>Serious Offenders Act 2018</i> (<b>2018 Act</b>), which replaced the <i>Serious Sex Offenders (Detention and Supervision) Act 2009 </i>(<b>2009 Act</b>).<br />
<br />
In <i>Lyons</i>, the Department of Public Prosecutions (<b>DPP</b>) 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.<br />
<br />
<h3>
<i>Which Act should the Court use to make its decision?</i></h3>
<br />
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.<br />
<br />
Clause 5(2) of Schedule 4 to the 2018 Act [<b>Applications commenced under superseded Act that have not been determined</b>] contains the transitional provisions and is as follows:<br />
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<span style="font-size: x-small;"><a href="https://www.blogger.com/u/1/null" name="_GoBack"></a></span><br />
<i>(1) Subject to subclause (2), the
superseded Act and regulations <u>made </u>under that Act continue to apply to any
of the following applications that were <u>made</u> under the superseded Act but <u>not
determined</u> before the commencement day— <o:p></o:p></i></div>
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<i>(a) an application for a
supervision order, a detention order or an interim order; <o:p></o:p></i></div>
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<i>(b) an application for the
renewal or extension of an order referred to in paragraph (a); <o:p></o:p></i><br />
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<i>(c) an application for the
review of an order or a condition of an order referred to in paragraph
(a). <o:p></o:p></i></div>
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<i>(2) An <u>order made</u> on an
application referred to in subclause (1), or on appeal in respect of such an
application, is to be <b>made under this Act</b>. <br /><b>[our emphasis added]</b></i><span style="font-size: 18px;"><br /></span> </div>
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The Court of Appeal considered the proper interpretation of the words <i><b>‘made under this Act’</b></i>. The parties' positions were as follows:<br />
<br />
<ul>
<li>The DPP submitted that the application should be <i>determined</i> 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 <b>form</b> of the 2018 Act. The DPP relied on the text of clause 5(1).</li>
<li>The Secretary to the Department of Justice and Community Safety submitted an order for Mr Lyons should be <b>made <i>and</i> determined </b>using the 2018 Act, meaning the Court could consider Mr Lyons’ risk of sexual or violent re-offending, or both.</li>
</ul>
<h4>
</h4>
<h4>
The Court of Appeal's Judgment - key aspects of the decision</h4>
<br />
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<b> heard and determined using the 2018 Act</b>. 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.<br />
<br />
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.<br />
<br />
<h4>
Some other points made by the Court of Appeal</h4>
<br />
<u>Deeming provision</u>: 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 <b>not</b> a deeming provision as it lacked the clear and express wording required of a deeming provision (for example, in <i>Spear v Hallenstein </i><span style="font-size: xx-small;">1</span> - the specific words 'is deemed to be' were used).<br />
<br />
<u>The Charter of Human Rights and Responsibilities</u>: 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.<br />
<br />
<u>Inconvenience caused?</u> 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.<br />
<br />
<h3>
<b>To find out more contact:</b></h3>
<br />
Liam McAuliffe<br />
Principal Solicitor<br />
Victorian Government Solicitor's Office<br />
<br />
<i>This blog was produced with the assistance of Rita Scammell, winter clerk, July 2019.</i><br />
<i><br /></i>
<i><br /></i>
<i>______</i><br />
<span style="font-size: xx-small;">1 </span><span style="font-size: xx-small;"><i>Spear v Hallenstein</i> [2018] VSC 169.</span><br />
<br />VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-21713691879110016102019-09-30T13:18:00.003+10:002019-09-30T13:25:25.196+10:00So I'm a 'retail' landlord - but what does that mean?Government agencies are often landlords of 'retail premises' under the <i>Retail Leases Act 2003</i>, 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.<br />
<br />
The <i>Retail Leases Act</i> 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.<br />
<br />
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.<br />
<br />
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.<br />
<h3>
</h3>
<h3>
</h3>
<h3>
<br /></h3>
<h3>
Landlords' obligations</h3>
<br />
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.<br />
<br />
Some of the main obligations which the Act imposes on landlords are:<br />
<br />
<ul>
<li><b>Provide a copy of proposed lease and information brochure</b>: the landlord must provide to a tenant copies of the proposed lease and the Victorian Small Business Commission information brochure, <i>as soon as the parties enter into negotiations</i>. Failure to do so is an offence against the Act.</li>
<li><b>Disclosure requirements</b>: the landlord is required to provide a Disclosure Statement to a tenant <i>at least 7 days before entering into the lease</i>, 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.</li>
<li><b>5-year minimum term</b>: 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).</li>
<li><b>Provide a copy of the executed lease</b>: the landlord must give the tenant a copy of the lease signed by the parties <i>within 28 days of it being signed</i>. If the landlord fails to do so, the tenant may give written notice terminating the lease.</li>
<li><b>Obligation to notify tenant of options for renewal</b>: 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, <i>between 6 and 12 months in advance of the date on which the option is no longer exercisable</i>. 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.</li>
<li><b>Notice of landlord's intentions concerning renewal</b>: where a tenant does not have an option for renewal under the lease, the landlord must also give written notice <i>between 6 and 12 months before the end of the lease</i>. 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.</li>
<li><b>Must allow transfer of lease</b>: 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.</li>
<li><b>Obligation to maintain premises</b>: 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.<span style="font-size: xx-small;">1</span></li>
<li><b>Cannot pass on certain costs</b>: 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.</li>
<li><b>Unconscionable conduct</b>: the Act prohibits unconscionable or unfair conduct by both landlords and tenants, and allows for compensation for loss caused by that conduct. </li>
</ul>
<h3>
</h3>
<h3>
</h3>
<h3>
<br /></h3>
<h3>
Resolving disputes</h3>
<br />
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 (<b>VSBC</b>).<br />
<br />
Only once the VSBC certifies that mediation has failed, can the parties apply to the Victorian Civil and Administrative Tribunal (<b>VCAT</b>) for a formal hearing.<br />
<br />
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.<br />
<br />
As property law experts within Government, the VGSO Property Team is well placed to assist you with retail leasing arrangements and other property issues.<br />
<br />
For advice and assistance, please contact:<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/anthony-leggiero" target="_blank">Anthony Leggiero</a><br />
Managing Principal Solicitor<br />
Ph: 9947 1430<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/margaret-marotti" target="_blank">Margaret Marotti</a><br />
Managing Principal Solicitor<br />
Ph: 9947 1410<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/elizabeth-wortley" target="_blank">Elizabeth Wortley </a><br />
Principal Solicitor<br />
Ph: 9947 1433<br />
<br />
<i>This blog was prepared with the assistance of Margie Brown, Law Graduate.</i><br />
<br />
_____________________<br />
<span style="font-size: xx-small;">1 </span><span style="font-size: xx-small;"><i>Small Business Commissioner Reference for Advisory Opinion </i>[2015] VCAT 478</span><br />
<br />VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-68452180952253394832019-08-09T10:07:00.001+10:002019-08-12T10:40:35.702+10:00#dismissed: High Court upholds dismissal of public servant for anonymous tweets critical of governmentIn 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.<br />
<br />
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.<br />
<br />
In <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/23.html" target="_blank"><i>Comcare v Michaela Banerji</i> [2019] HCA 23 (7 August 2019)</a>, 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 <a href="https://www.legislation.gov.au/Details/C2019C00057" target="_blank"><i>Public Service Act 1999</i> (Cth)</a> (<b>PS Act</b>), the Australian Public Service (<b>APS</b>) Code of Conduct and APS Values.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
A summary of the Court's decision can be found <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2019/hca-23-2019-08-07.pdf" target="_blank">here</a>.<br />
<br />
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. <br />
<br />
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.<br />
<br />
If you work in the public sector and require further information please contact us:<br />
<br />
<b>Workplace Relations team</b><br />
<b><br /></b>
<a href="https://www.vgso.vic.gov.au/our-people/profile/frances-anderson" target="_blank">Frances Anderson</a><br />
Assistant Victorian Government Solicitor<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/ronan-odonnell" target="_blank">Ronan O'Donnell</a><br />
Solicitor, Workplace Relations and Occupational Safety<br />
<br />
<b>Constitution and Advice team</b><br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/alison-obrien" target="_blank">Alison O'Brien</a><br />
Assistant Victorian Government Solicitor<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/jessica-cleaver" target="_blank">Jessica Cleaver</a><br />Managing Principal Solicitor, Constitution and Advice team<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/maya-narayan-0" target="_blank"><br /></a>
<a href="https://www.vgso.vic.gov.au/our-people/profile/maya-narayan-0" target="_blank">Maya Narayan</a><br />
Principal Solicitor, Constitution and Advice team<br />
<br />
<br />
<i>This blog was prepared with the assistance of Margie Brown, Law Graduate. </i>VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-12874267210411786102019-07-01T12:34:00.000+10:002019-07-02T16:15:52.174+10:00Reflections 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 (<b>SG</b>), who shared her reflections on the <i>Charter of Human Rights and Responsibilities 2006</i> (<b>Charter</b>). 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.<br />
<br />
<h4>
Recent s 38 cases</h4>
<br />
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:<br />
<br />
<br />
<ul>
<li>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 (<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/564.html?context=1;query=%5b2018%5d%20VSC%20564;mask_path=" target="_blank"><i>PBU & NJE v Mental Health Tribunal</i></a>);</li>
<li>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 (<i><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/339.html?context=1;query=%5b2018%5d%20VSC%20339;mask_path=" target="_blank">DPP v Natale (Ruling</a>)</i>); and </li>
<li>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 (<i><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/474.html?context=1;query=%5b2018%5d%20VSC%20474;mask_path=" target="_blank">Haigh v Ryan</a></i>).</li>
</ul>
<br />
<br />
<h4>
Proper consideration </h4>
<br />
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 <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2010/310.html?context=1;query=castles%20v%20secretary;mask_path=" target="_blank"><i>Castles v Secretary</i>,</a> <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2015/197.html?context=1;query=Bare%20v%20IBAC;mask_path=" target="_blank"><i>Bare v IBAC</i></a> and <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2017/251.html?context=1;query=%22Certain%20children%22;mask_path=" target="_blank"><i>Certain Children (No 2)</i></a>. 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.<br />
<br />
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.<br />
<br />
<h4>
Future directions<br /> </h4>
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:<br />
<br />
<ul>
<li>the application of the Charter to courts under s 6(2)(b), considered in the recent case of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/535.html?context=1;query=%5b2018%5d%20VSC%20535;mask_path=" target="_blank"><i>Cemino v Cannan</i></a>, 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;</li>
<li>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 <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/663.html?context=1;query=%5b2018%5d%20VSC%20663;mask_path=" target="_blank"><i>DPP v Rayment</i></a>; and</li>
<li>the requirements of s 39, which allow a person to bring a claim for unlawfulness under the Charter if certain conditions are met</li>
</ul>
<br />
<br />
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.<br />
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<b><span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt; line-height: 107%;">To find out more contact:</span></b><span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt; line-height: 107%;"><o:p></o:p></span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;"><a href="http://vgso.vic.gov.au/our-people/profile/catherine-roberts-0" target="_blank">Catherine Roberts </a><o:p></o:p></span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">Managing Principal Solicitor </span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">Victorian Government Solicitors Office </span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">T: 03 86840247 </span></div>
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<span style="background-color: transparent;"><span style="color: #666666; font-family: "trebuchet ms" , sans-serif;"><span style="font-size: 13.3333px;">E: catherine.roberts@vgso.vic.gov.au </span></span></span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;"></span><o:p></o:p></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">Sasha Ponniah</span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">Senior Solicitor</span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">Victorian Government Solicitors Office</span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">T:03 86840220 </span></div>
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<span style="color: #666666; font-family: "trebuchet ms" , sans-serif; font-size: 10.0pt;">E:sasha.ponniah@vgso.vic.gov.au </span></div>
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-44260878558436587252019-04-02T14:37:00.002+11:002019-04-02T14:37:37.683+11:00Native Title Compensation Case (Timber Creek) Decision : At A GlanceEach judgment in the <i>Timber Creek</i> 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? <br />
<br />
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.<br />
<br />
While the reasoning is highly fact specific, we now have judicial guidance on these complex topics.<br />
<br /><table border="1" cellpadding="0" cellspacing="0" class="MsoTableGrid" style="border-collapse: collapse; border: none; mso-border-alt: solid windowtext .5pt; mso-padding-alt: 0cm 5.4pt 0cm 5.4pt; mso-yfti-tbllook: 1184; width: 0px;">
<tbody>
<tr style="mso-yfti-firstrow: yes; mso-yfti-irow: 0;">
<td style="border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 83.4pt;" valign="top" width="111">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<br /></div>
</td>
<td style="border-left: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 134.65pt;" valign="top" width="180">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">Federal Court<o:p></o:p></b></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">20 July 2016<span style="font-family: Segoe UI, sans-serif;"> <span style="font-size: x-small;">[1]</span></span><o:p></o:p></b></div>
</td>
<td style="border-left: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 130.15pt;" valign="top" width="174">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">Full Federal Court<o:p></o:p></b></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">20 July 2017 <o:p></o:p></b><b><span style="font-family: Segoe UI, sans-serif;"><span style="font-size: x-small;">[2]</span></span></b></div>
</td>
<td style="border-left: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 132.1pt;" valign="top" width="176">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">High Court<o:p></o:p></b></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">13 March 2019 <o:p></o:p></b><b><span style="font-family: Segoe UI, sans-serif;"><span style="font-size: x-small;">[3]</span></span></b></div>
</td>
</tr>
<tr style="mso-yfti-irow: 1;">
<td style="border-top: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 83.4pt;" valign="top" width="111">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">Economic loss<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 134.65pt;" valign="top" width="180">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
80% of the freehold value of
the land at the date the compensable act occurred <o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$512,400<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 130.15pt;" valign="top" width="174">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
65% of the freehold value of
the land at the date the compensable act occurred<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$416,325<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 132.1pt;" valign="top" width="176">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
50% of the freehold value of
the land at the date the compensable act occurred<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$320,250<o:p></o:p></b></div>
</td>
</tr>
<tr style="mso-yfti-irow: 2;">
<td style="border-top: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 83.4pt;" valign="top" width="111">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">Interest<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 134.65pt;" valign="top" width="180">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
Simple interest from the date
the compensable act occurred to the date of judgment<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$1,488,261<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 130.15pt;" valign="top" width="174">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
Upheld - pattern of business
investments did not warrant payment of compound interest<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$1,183,121<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 132.1pt;" valign="top" width="176">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
Upheld - noting compound
interest is available but not warranted in this instance<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$910,100<o:p></o:p></b></div>
</td>
</tr>
<tr style="mso-yfti-irow: 3;">
<td style="border-top: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 83.4pt;" valign="top" width="111">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<b style="mso-bidi-font-weight: normal;">Non-economic loss/ Cultural loss<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 134.65pt;" valign="top" width="180">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
Calculated on a global basis
having regard to the consequential effects on the ability to care for country<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$1,300,000<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 130.15pt;" valign="top" width="174">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
Upheld<o:p></o:p></div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$1,300,000<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 132.1pt;" valign="top" width="176">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
Upheld - noting that the
trial judge heard all of the<span style="mso-spacerun: yes;"> </span>evidence
and that this figure may be rightly regarded by society as an appropriate
award for cultural loss</div>
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$1,300,000<o:p></o:p></b></div>
</td>
</tr>
<tr style="mso-yfti-irow: 4; mso-yfti-lastrow: yes;">
<td style="border-top: none; border: solid windowtext 1.0pt; mso-border-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 83.4pt;" valign="top" width="111">
<div class="MsoNormal" style="margin-bottom: 12.0pt;">
<br /></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 134.65pt;" valign="top" width="180">
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$3,300,261<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 130.15pt;" valign="top" width="174">
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$2,899,446<o:p></o:p></b></div>
</td>
<td style="border-bottom: solid windowtext 1.0pt; border-left: none; border-right: solid windowtext 1.0pt; border-top: none; mso-border-alt: solid windowtext .5pt; mso-border-left-alt: solid windowtext .5pt; mso-border-top-alt: solid windowtext .5pt; padding: 0cm 5.4pt 0cm 5.4pt; width: 132.1pt;" valign="top" width="176">
<div align="right" class="MsoNormal" style="margin-bottom: 12.0pt; text-align: right;">
<b style="mso-bidi-font-weight: normal;">$2,530,350<o:p></o:p></b></div>
</td>
</tr>
</tbody></table>
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<div style="mso-element: footnote-list;">
<br /></div>
<div style="mso-element: footnote-list;">
<!--[if !supportFootnotes]--><div>
VGSO advises government departments, agencies and statutory authorities on how to comply with the <i>Native Title Act 1993</i> (Cth), the <i>Aboriginal Heritage Act 2006</i> (Vic) and the <i>Traditional Owner Settlement Act 2010</i> (Vic). This is part of VGSO's exclusive area of work. </div>
<div>
<br /></div>
<div>
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. </div>
<div>
<br /></div>
<div>
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. </div>
<div>
<br /></div>
<div>
<b>To find out more contact:</b></div>
<div>
<b><br /></b></div>
<div>
<div>
<a href="https://www.vgso.vic.gov.au/our-people/profile/julie-freeman" target="_blank">Julie Freeman</a><br />Assistant Victorian Government Solicitor</div>
<div>
99471404</div>
<div>
<br /></div>
<div>
<a href="https://www.vgso.vic.gov.au/our-people/profile/mary-scalzo" target="_blank">Mary Scalzo</a></div>
<div>
Managing Principal Solicitor</div>
<div>
99471419 </div>
<div>
<br /></div>
<div>
<a href="https://www.vgso.vic.gov.au/our-people/profile/brendan-mcintyre" target="_blank">Brendan McIntyre</a></div>
<div>
Principal Solicitor</div>
<div>
99471435</div>
<div>
<br /></div>
<div>
<a href="https://www.vgso.vic.gov.au/our-people/profile/james-stephens" target="_blank">James Stephens</a></div>
<div>
Principal Solicitor</div>
<div>
99471422 </div>
</div>
<div>
<br /></div>
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<div id="ftn1" style="mso-element: footnote;">
<div class="MsoFootnoteText">
<span style="font-size: x-small;"><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Segoe UI", sans-serif;">[1]</span></span><!--[endif]--></span> <i>Griffiths v Northern Territory of Australia
(No 3)</i> [2016] FCA 900<o:p></o:p></span></div>
</div>
<div id="ftn2" style="mso-element: footnote;">
<div class="MsoFootnoteText">
<span style="font-size: x-small;"><span class="MsoFootnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Segoe UI", sans-serif;">[2]</span></span><!--[endif]--></span></span> <i style="mso-bidi-font-style: normal;">Northern Territory of Australia v Griffiths </i>[2017]
FCAFC 106<o:p></o:p></span></div>
</div>
<div id="ftn3" style="mso-element: footnote;">
<div class="MsoFootnoteText">
<span style="font-size: x-small;"><span class="MsoFootnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Segoe UI", sans-serif;"><span style="color: black;">[3]</span></span></span><!--[endif]--></span></span> <i>Northern Territory of Australia v Griffiths </i>[2019]
HCA 7</span><o:p></o:p></div>
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-13751796711428506622019-01-09T12:28:00.000+11:002019-01-09T12:30:30.429+11:00Government buyers, are you up to speed on the new Local Jobs First Policy?<h4>
New Policy Overview</h4>
<br />
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 (<b>Policy</b>).<br />
<br />
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.<br />
<br />
The existing <i>Victorian Industry Participation Policy Act 2003</i> has been amended to the <i>Local Jobs First Act 2003</i> (<b>Act</b>) which now comprises the Victorian Industry Participation Policy (<b>VIPP</b>) and the Major Projects Skills Guarantee (<b>MPSG</b>).<br />
<br />
<h4>
VIPP</h4>
<br />
VIPP applies to procurement activities funded by the State government and comes in two forms:<br />
<ol>
<li>Standard Projects are those where the procurement activity meets or exceeds either: <br />1.1 $1 million in regional Victoria; or<br />1.2 $3 million in metropolitan Melbourne or for state-wide activities.</li>
<li>Strategic Projects are those where the procurement activity is valued at $50 million or more, excluding maintenance and operational costs.</li>
</ol>
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 (<b>Local Content</b>).<br />
<div>
<br />
<h4>
Local Content Requirements </h4>
<br />
Standard Projects must have a minimum of 10% Local Content while Strategic Projects must meet Local Content requirements of at least:<br />
<ul>
<li>90% for construction projects;</li>
<li>80% for services projects or maintenance projects; and</li>
<li>80% for the maintenance or operations phase of a Strategic Project. </li>
</ul>
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 (<b>ICN</b>).<br />
<br />
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').<br />
<br />
<h4>
Non-Contestable Goods or Services</h4>
<br />
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.<br />
<br />
<h4>
MPSG</h4>
<br />
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).<br />
<br />
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.<br />
<br />
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.<br />
<br />
<h4>
Tender Process</h4>
<br />
For projects covered by the Policy, bidders will be required to submit a Local Industry Development Plan (<b>LIDP</b>) for approval by ICN.<br />
<br />
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.<br />
<br />
<h4>
Reporting and Compliance</h4>
<br />
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.<br />
<br />
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.<br />
<br />
<h4>
How we can help -further information</h4>
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
Please contact :<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/rebecca-radford" target="_blank">Rebecca Radford</a><br />
Managing Principal Solicitor<br />
9947 1403<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/brendan-mcintyre" target="_blank">Brendan McIntyre</a><br />
Principal Solicitor<br />
9947 1435<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/benjamin-lunardi" target="_blank">Benjamin Lunardi</a><br />
Solicitor<br />
9947 1440<br />
<br />
<div>
<br /></div>
</div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-8795610855136173512019-01-03T10:00:00.000+11:002019-01-17T09:36:06.209+11:00Recent amendments to the Coroners ActThe <i>Justice Legislation Miscellaneous Amendment Act 2018</i> (Vic) (<b>the Amendment Act</b>) received Royal Assent on 25 September 2018. As well as amending a number of justice-related Acts to "<i>improve the law, reduce delay and protect victims</i>", [1] the Amendment Act makes critical revisions to the <i>Coroners Act 2008</i> (Vic) (<b>2008 Act</b>) to:<br />
<br />
<ul>
<li>allow certain persons to apply to the Coroners Court of Victoria (<b>the Court</b>) for an amendment to the wording of a decision made by a coroner or the Court, without re-opening the death investigation; and</li>
<li>make it clearer that a person has the legislative option to have, under the <i>Coroners Act 1958</i> (<b>1958 Act</b>), the <i>Coroners Act 1985</i> (<b>1985 Act</b>) 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.</li>
</ul>
<br />
The changes are in response to the Coronial Council Appeals Review which examined the review and appeal rights under the 2008 Act.<br />
<div>
<br />
<h4>
Section 76A - Amending the wording of a decision</h4>
</div>
<div>
<br /></div>
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:<br />
<br />
<ul>
<li>senior next of kin of a deceased person; or</li>
<li>an interested party in relation to an inquest in respect of the death; or</li>
<li>any other person that the Court is satisfied:</li>
<ul>
<li>has a sufficient interest in the investigation; and </li>
<li>that it is appropriate to be granted leave to make the application.</li>
</ul>
<ul>
</ul>
</ul>
<br />
The new provision allows for an Order that the wording of the decision be amended if the following criteria is satisfied:<br />
<br />
<ul>
<li>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;</li>
<li>the amendment would not require the investigation to be re-opened;</li>
<li>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</li>
<li>the amendment is appropriate in all the circumstances.</li>
</ul>
<br />
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.<br />
<br />
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.<br />
<br />
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:<br />
<br />
<ul>
<li>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</li>
<li>for a person to lodge an appeal against a refusal by a coroner to re-open an investigation.</li>
</ul>
<br />
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).<br />
<br />
The Supreme Court matter of <i>Hecht v Coroners Court of Victoria </i>[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.<br />
<br />
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.<br />
<br />
<h4>
Section 77 - Clarifying the provisions in relation to re-opening an investigation or setting aside a finding</h4>
<br />
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.<br />
<br />
Many of the fundamental changes were drawn from the work of the Victorian Parliament Law Reform Committee (<b>VPLRC</b>). The VPLRC conducted a comprehensive analysis of the coronial system, as it existed under the 1985 Act.[2]<br />
<br />
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.<br />
<br />
<h4>
Judicial consideration</h4>
<br />
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.<br />
<br />
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]<br />
<br />
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.<br />
<br />
<h4>
What was the ambiguity?</h4>
<br />
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. <br />
<br />
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.<br />
<br />
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.<br />
<br />
Also of note are that the terms 'findings of a coroner' and 'investigation' are now defined in the 2008 Act.<br />
<br />
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.<br />
<div>
<br />
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.<br />
<br />
For further information on the amendments and their implications please contact:<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/jodie-burns" target="_blank">Jodie Burns</a><br />
Managing Principal Solicitor<br />
9032 3012<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/laura-elliott" target="_blank">Laura Elliott</a><br />
Solicitor<br />
8684 0134</div>
<div>
__________________</div>
<div>
<br /></div>
<div>
<span style="font-size: x-small;">[1] Victoria, <i>Parliamentary Debates</i>, Legislative Council, 26 July 2018, 3401-02 (Jenny Mikakos, Minister for Families and Children).</span></div>
<div>
<span style="font-size: x-small;"><br /></span></div>
<div>
<span style="font-size: x-small;">[2] Law Reform Committee, Parliament of Victoria, <i>Coroners Act 1985</i> (2006).</span></div>
<div>
<span style="font-size: x-small;"><br /></span></div>
<div>
<span style="font-size: x-small;">[3] Justice Niall had previously ruled that parties could not bring their applications under the repealed 1958 and 1985 Acts: See <i>James v Mason</i> [2018] VSC 170 and <i>Spear v Hallenstein</i> [2018] VSC 169.</span></div>
<div>
<span style="font-size: x-small;"><br /></span></div>
<div>
<span style="font-size: x-small;">[4] Coronial Council of Victoria, <i>Coronial Council Appeals Review - Reference 4 </i>(2017).</span></div>
<div>
<span style="font-size: x-small;"><br /></span></div>
<div>
<span style="font-size: x-small;">[5] <i>See Coroners Act 1985</i> (Vic) s 59A.</span></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-75585265360915131762018-12-13T11:00:00.002+11:002018-12-13T11:01:47.359+11:00Let’s get this show on the road!<br />
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Often, our clients' projects require the temporary or permanent use and occupation of land to construct improvements, or to support nearby construction.</span></div>
<br />
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">If some or all of that land is a road at law, it can only be used for the project if it is temporarily closed, which is not always possible, or discontinued. The danger of not properly discontinuing the land's status as a road is that the use or occupation of the land may amount to public nuisance, with legal consequences. </span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<h3>
<span style="font-family: "verdana" , sans-serif; font-size: small;">What is a road?</span></h3>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">In Victoria, a road includes any area of land that is a highway at common law. More specifically, a highway is an area of land, at soil level or in stratum, over which the public may pass on or over at all times.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span>
<span style="font-family: "verdana" , sans-serif;">It is not necessary that land is physically a road for it to be a highway at common law. The land may be suitable only for pedestrian access or for use by bicycles or horse-riders, rather than cars or other vehicles. Even where land is only capable of passage by ferry, the ferry route itself may be a highway. As long as the land meets the legal requirements, it will be a highway, and therefore a road.</span><br />
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Roads also include areas of land (at soil level or in strata) regulated under statutes, such as the <i>Road Management Act 2004</i> (RM Act). Under the RM Act, roads are generally categorised as freeways, arterial roads, non-arterial State roads and municipal roads.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<h3>
<span style="font-family: "verdana" , sans-serif; font-size: small;">Who owns roads?</span></h3>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">If you wish to temporarily or permanently access or occupy land which has the status of a road, you will probably need to negotiate with the land owner on the scope of the required rights and changes to the road's status.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">As a general principle, the Crown owns land over which there is a freeway or arterial road, regardless of whether the road is at surface level or in stratum, as well as certain land declared as road under general legislation governing Crown land. Otherwise, roads are generally owned by the municipal council of the municipal district in which the road is located.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<h3>
<span style="font-family: "verdana" , sans-serif; font-size: small;">Acquiring and dealing with land which is a road</span></h3>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">If land is a road, it is generally not possible to exclusively access or occupy the land unless its status as a road is temporarily paused (where this option is available under legislation) or permanently discontinued. First, it is necessary to identify the relevant legislative power to temporarily close or discontinue the road, and then to do so in accordance with the power. </span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">These powers exist in a wide range of statutes, such as the RM Act in relation to roads generally, and the <i>Project Development and Construction Management Act 1994 </i>and the <i>Major Transport Projects Facilitation Act 2009</i> in relation to roads over land which is required for a particular project.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span>
<span style="font-family: "verdana" , sans-serif;">A number of formalities may be required before a road can be discontinued, for example:</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">•<span style="white-space: pre;"> </span>bringing the land within a declared project area;</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">•<span style="white-space: pre;"> </span>public notification and/or consultation;</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">•<span style="white-space: pre;"> </span>obtaining the consent of other parts of Government; and </span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">•<span style="white-space: pre;"> </span>amending a planning scheme.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Depending on the applicable legislative power and exemptions, discontinuation of a road can be achieved in as little as 28 days or take as long as 18 months. </span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Once the road has been formally discontinued in accordance with the relevant power, the owner of the land can deal with that land as it pleases. As a general rule, where roads on Crown land are discontinued, the underlying land normally returns to unreserved Crown land status.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<h3>
<span style="font-family: "verdana" , sans-serif; font-size: small;">Need some help?</span></h3>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Victoria's roads are governed by a complex legal framework. Our Property Team has expertise in advising Government clients on a broad range of issues that arise when accessing and acquiring rights to land comprising a road.</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">For further advice, please contact: </span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<a href="mailto:anthony.leggiero@vgso.vic.gov.au" target="_blank"><span style="font-family: "verdana" , sans-serif;">Anthony Leggiero</span></a></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Managing Principal Solicitor</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">03 9947 1430</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<a href="mailto:margaret.marotti@vgso.vic.gov.au" target="_blank"><span style="font-family: "verdana" , sans-serif;">Margaret Marotti</span></a></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Managing Principal Solicitor</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">03 9947 1410</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<a href="mailto:eloise.connelly@vgso.vic.gov.au" target="_blank"><span style="font-family: "verdana" , sans-serif;">Eloise Connelly</span></a></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Principal Solicitor</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">03 9947 1493</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;"><br /></span></div>
<div class="LDStandardBodyText">
<a href="mailto:elizabeth.wortley@vgso.vic.gov.au" target="_blank"><span style="font-family: "verdana" , sans-serif;">Elizabeth Wortley</span></a></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">Senior Solicitor</span></div>
<div class="LDStandardBodyText">
<span style="font-family: "verdana" , sans-serif;">03 9947 1433</span></div>
<div>
<br /></div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-49447924074274604432018-08-14T10:07:00.000+10:002018-08-14T14:53:20.383+10:00What is in the Environment Protection Amendment Bill 2018?The Environment Protection Amendment Bill 2018 (<b>the Bill</b>) is the second tranche of reforms following the <a href="http://blog.vgso.vic.gov.au/2016/06/shifting-expectations-implications-for.html" target="_blank">Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority</a> (EPA)<br />
<br />
The first major reform, the <i>Environment Protection Act 2017</i> created a new statutory objective for the EPA and clarified its focus; to protect human health and the environment from the harmful impact of waste and pollution.<br />
<br />
The Bill, if passed, will repeal and replace the current <i>Environment Protection Act 1970</i> (<b>the old Act</b>), and create a prevention-focussed regulatory regime that gives the EPA a wider array sanctions and controls to manage high-risk activity.<br />
<br />
The Bill has a forced commencement date of 1 December 2020, but is intended to take effect from <a href="https://www.environment.vic.gov.au/sustainability/independent-inquiry-into-the-epa/ep-bill-2018" target="_blank">1 July 2020</a>.<br />
<br />
<h3>
General environmental duty</h3>
The cornerstone of the Bill is a general environmental duty modelled after the duty on employers in the <i>Occupational Health and Safety Act 2004</i>. It creates a positive obligation on duty-holders to proactively minimise the risk of harm to health and the environment from pollution and waste. Both individuals and people conducting a business or undertaking (<b>duty-holders</b>) breach the duty if they fail to take steps that are reasonably practicable to minimise the risk of harm.<br />
<br />
The type of actions required of duty-holders are laid out in the Bill and include:<br />
<br />
<ul>
<li>using and maintaining plant, equipment, processes and systems in a manner that minimises risks of harm to human health or the environment from pollution and waste; </li>
<li>using and maintaining adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised; and</li>
<li>ensuring that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health or the environment from pollution and waste.</li>
</ul>
<br />
Those who breach the duty while conducting a business or an undertaking commit an indictable offence, and face a fine.<br />
<br />
This duty will impact businesses, bodies and departments who engage in activities that pose a risk of harm to health or the environment from pollution and waste.<br />
<br />
<h3>
Permissions</h3>
There are three main tiers of permissions within the Bill: Licences (which are divided into operating, development and pilot project licences), permits and registrations.<br />
<br />
In the old Act, licences and other types of approvals only applied to 'premises', whereas the Bill's permissions structure will apply to 'activities'. The regulations will prescribe the types of activities that can be approved for each permission type.<br />
<br />
The most easily granted permission, registrations, are meant for low to medium risk activity. Permits are for less complex activities with a medium to high risk, and will include a standardised assessment process within the regulations.<br />
<br />
The most onerous permission, in terms of application process and possible conditions is a licence. It is designed for complex and high-risk activities and allows the EPA to customise conditions to suit the project.<br />
<br />
Bodies that hold old permissions immediately prior to the Bill's commencement date will hold new permissions from the day the Bill commences.<br />
<br />
<h3>
Contaminated land</h3>
The Bill will create a duty to notify the EPA and an obligation to manage land contaminated by waste, a chemical substance or any other prescribed substance. For the duty to apply, the contamination must be on or under the surface of the land, be present in a concentration above the background level and create a risk to human health or the environment.<br />
<br />
If the land is contaminated, the Bill makes it clear that the person with management or control of the land is under the general duty to minimise risks of harm to human health and the environment from the contaminated land, which may include cleaning up the land.<br />
<br />
The person with management or control must notify the EPA that the land is contaminated as soon as reasonably practicable. Failure to do so results in a civil penalty.<br />
<br />
<h3>
Third party rights</h3>
The Bill will enable third parties to enforce breaches of the law and seek civil remedies where the EPA has not taken action. The third party must be a person whose interests are affect by the contravention or non-compliance with the law, or anyone else with leave of the court where it is in the public interest.<br />
<br />
If eligible, the third party has the same rights as the EPA to seek orders remedying or restraining breaches of the law, its regulations, or to licences and other permissions.<br />
<br />
The right to enforce the law and seek remedies creates a new accountability mechanism on the EPA, where the regulator has failed or chose not to take action.<br />
<br />
The Bill passed the Legislative Council on 9 August 2018.<br />
<div class="MsoNormal">
<span style="color: #1f497d; font-family: "tahoma" , sans-serif;"><o:p></o:p></span></div>
<br />
For further information on the Bill and its implications, please contact:<br />
<br />
<a href="mailto:annette.jones@vgso.vic.gov.au" target="_blank">Annette Jones</a><br />
Principal Solicitor<br />
8684 0444<br />
<br />
<a href="mailto:natasha.maugueret@" target="_blank">Natasha Maugueret </a><br />
<div>
Managing Principal Solicitor </div>
<div>
8684 0223</div>
<div>
<br /></div>
<div>
This blog was produced with the assistance of Emma Buckley Lennox, Graduate Lawyer.</div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-58877343119439926032018-07-23T09:09:00.000+10:002018-07-23T09:09:16.335+10:00You can’t do that! Restricting use and sale of Government land The Victorian Government Landholding Policy permits the sale or transfer of land to a government or community organisation for a public or community purpose where the terms of sale include a restriction on title reflecting that purpose which allows the State to control the future use and transfer of the land after disposal.[1]<br />
<br />
The transfer of State owned or Crown land for public or community purposes will often be for nil consideration in recognition of the fact that the transferee will have obligations to make the land available for the intended purpose and to ensure that it is properly maintained for safe and enjoyable community use.<br />
<br />
Once an agency has determined that it wishes to transfer land to an appropriate entity for public or community purposes, the next question is how best to ensure that the entity uses the land for the designated purposes and does not sell it to a third party to achieve a windfall gain or a profit.<br />
<br />
<h3>
Options for restricting use and sale of Government land</h3>
<h4>
<br />Restrictive covenants</h4>
<br />
As the Landholding Policy states, the restrictions are to be registered on the title to the land. The traditional means of restricting use of land is via a restrictive covenant registered on the title of the land to be burdened by the covenant. A restrictive covenant is an agreement between two landowners that one land owner will not do certain things on their land which could negatively affect the amenity of adjoining owners, for the benefit of the land held by the other owner. <br />
<br />
However, restrictive covenants are often not available to the State because they generally require that the State owns adjoining or reasonably contiguous land in freehold which will benefit from the restrictions set out in the covenant. If these requirements are not met, the option will not be available. The other challenge is that restrictive covenants can only include negative obligations (ie: an obligation not to do something on the land) and cannot oblige the burdened owner to spend money.<br />
<br />
<h4>
Statutory agreements</h4>
<br />
To address the shortcomings of restrictive covenants, various Acts provide for statutory agreements that can be entered into for public purposes and impose positive land use and development obligations on landowners. Such agreements may be registered on the title to the land and can bind future transferees of the land, if transfer is permitted under the terms of the agreement. Some of the more common statutory agreements are discussed below.<br />
<br />
Section 173 of the <i>Planning and Environment Act 1987</i> allows a responsible authority, commonly a local Council, to enter into an agreement with a land owner. The agreement can provide for a restriction on the use or development of land, or any matter intended to achieve a planning objective in Victoria. The responsible authority can enter into the agreement on anybody's behalf, and assumes responsibility for its enforcement once the agreement is recorded on the title to the land.<br />
<br />
Where land is part of a designated project area, section 22 of the <i>Project Development and Construction Management Act 1994</i> and section 49 of the <i>Development Victoria Act 2003</i>, allow the project authority under each Act to enter into an agreement with the transferee regarding use or development of the land. In both cases, the agreements may be registered on title to the land as if they were an agreement under s 173 of the <i>Planning and Environment Act 1987</i>. The key difference is that these agreements do not rely on the cooperation of the local Council to enforce the landowner's promises under the agreement and can instead by led and enforced by the project authority or facilitating agency.<br />
<br />
Similarly, under s 69 of the <i>Conservation, Forests and Lands Act 1987</i>, the Secretary body corporate under that Act may enter into an agreement with a land owner relating to the management, use, development, preservation or conservation of land. An agreement may also be entered into to give effect to the purposes of a law considered to be a relevant law. The Act provides that any agreement will bind successors as long as the Secretary applies in writing to the Registrar of Titles to have it recorded on the title to the land.<br />
<br />
A relatively recent example is the advent of the forestry and carbon management agreements as well as the carbon sequestration agreements. These are provided for by a detailed scheme contained in the <i>Climate Change Act 2017 </i>(Vic). The Act recognises proprietary rights in carbon sequestration and allows for the recording of various agreements between the landowner and the relevant person, which create binding obligations that run with the land and ensure the ongoing management of forestry, soil, and carbon sequestration rights.<br />
<br />
As Property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues. If you need further advice in relation to restricting the future use and transfer of State owned land, please contact:<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/elizabeth-wortley" target="_blank">Elizabeth Wortley</a><br />
Senior Solicitor<br />
9947 1433<br />
elizabeth.wortley@vgso.vic.gov.au<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/eloise-connelly" target="_blank">Eloise Connelly </a><br />
Senior Solicitor<br />
9947 1493<br />
eloise.connelly@vgso.vic.gov.au<br />
<br />
<br />
__________________<br />
<br />
<span style="font-size: x-small;">[1] Department of Treasury and Finance, Victorian Government Landholding Policy and Guidelines (September 2017) ii.</span><br />
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-66910345676715935172018-07-17T16:56:00.000+10:002018-07-17T16:56:08.591+10:00Functus Officio - myth or reality?If you work as a government decision-maker, there may be times when you want to reconsider a decision you have made under an Act. Perhaps there has been a change of policy or you are concerned there was a mistake in the first decision. What are the lawful options available to you to reconsider that decision? <br />
<h3>
<br />Options for reconsideration of decisions</h3>
<br />
The options available will depend upon the legislative context in which the relevant decision has been made and the nature of the decision itself. At a general level:<br />
<br />
<ul>
<li><b>Where a decision is affected by 'jurisdictional error'</b>, it can, in many cases, be treated as no decision at all and revoked and remade (following the High Court's decision in <i>Minister for Immigration and Multicultural Affairs v Bhardwaj</i> [1]). Whether a decision is affected by jurisdictional error and may be treated in this way is a complex question on which we can provide advice.</li>
</ul>
<ul>
<li><b>Where the relevant legislation sets out a formal process for internally reviewing decisions</b> (see, for example: <i>Building Act 1993</i> (Vic), Pt 11, Div 4, sub-div 2), a decision can be reconsidered in accordance with the prescribed process.</li>
</ul>
<ul>
<li><b>Where a decision is not affected by jurisdictional error and no internal review process is prescribed</b>, determining whether internal review is allowed (that is, without the decision being appealed to a court) can be a complex task, with which this article is principally concerned.</li>
</ul>
<br />
Indeed, this third scenario has recently been considered by the Full Court of the Federal Court in <i>Minister for Indigenous Affairs v MJD Foundation Ltd (<b>MJD</b>)</i>.[2]<br />
<br />
<h3>
Background</h3>
<br />
Recent authorities on the source and scope of a decision-maker's power to undertake internal review must be understood in the context of the common law doctrine that a statutory power, once exercised, becomes spent and cannot be exercised again, without express statutory authorisation. (This doctrine even has a fancy Latin name: <i>functus officio</i>). The operation of this doctrine can prevent a decision-maker from exercising a statutory power in respect of more than one person or circumstance.<br />
<br />
Legislation now seeks to avoid the inconvenient consequences of the operation of this doctrine, in provisions such as s 40 of the <i>Interpretation of Legislation Act 1984</i> (Vic) (<b>ILA</b>) and s 33(1) of the <i>Acts Interpretation Act 1901</i> (Cth) (<b>AIA</b>), which provide that statutory powers may be exercised 'from time to time'. The operation of these provisions is considered further below.<br />
<br />
<h3>
The Full Court's decision in MJD</h3>
<br />
MJD concerned the Minister's power under s 64(4) of the <i>Aboriginal Land Rights (Northern Territory) Act 1976</i> (Cth) (<b>Land Rights Act</b>) to direct that money be paid 'for the benefit of Aboriginals living in the Northern Territory'. On the making of such a direction, the Act required an equivalent amount be debited from the Aboriginal Benefits Account. <br />
<br />
The Minister had directed under s 64(4) that a payment be made to a particular charity. The charity then determined that it required additional funding, so sought to vary the size of the original grant. Accordingly, the Minister gave a further direction that an additional sum be paid to the charity. Before the additional amount was paid, there was a change of government and the incoming Minister decided to reverse the outgoing Minister's second decision (ie directing that the additional funds not be paid). <br />
<br />
The questions before the Full Court were whether s 33(1) of the AIA empowered the incoming Minister to revoke the outgoing Minister's decision and whether, assuming the provision operated as such, the Land Rights Act revealed a contrary intention sufficient to displace the operation of s 33(1).<br />
<br />
Mortimer J, with whom Perry J agreed,[3] held that the Land Rights Act revealed such a contrary intention and that s 33(1) of the AIA had no application to the outgoing Minister's second decision. This meant that the incoming Minister could not reverse the outgoing Minister's decision. <br />
<br />
Although that was a sufficient basis on which to determine the appeal, Mortimer J then made a number of observations about the scope of s 33(1). Her Honour considered that s 33(1) did not extend to a general implication of a power to reverse or undo an exercise of power, whether by revocation of a decision made in exercise of the relevant power or otherwise.[4] To the extent that such a power is to be found in legislation, the source of that power would be the legislation itself, rather than s 33(1) of the AIA. The effect of s 33(1) is merely that, subject to any contrary intention, powers may be exercised and functions performed on more than one occasion, in relation to <i>different individuals and circumstances</i>.[5]<br />
<br />
<h3>
Victorian context</h3>
<br />
The leading Victorian authority on this issue is the Court of Appeal's, now 13-year-old, decision in <i>Kabourakis v Medical Practitioners Board of Victoria (<b>Kabourakis</b>)</i>,[6] which was cited with approval in MJD.<br />
<br />
<i>Kabourakis </i>concerned an application for judicial review of a decision made by the Medical Practitioners Board of Victoria to hold a second hearing on allegations that a doctor had engaged in unprofessional conduct, after an earlier hearing had found that the doctor had not engaged in such conduct. The relevant professional supervision scheme provided for the Board to hold a preliminary investigation, which it did, as part of which it received a number of reports from medical professionals that were relevant to the specific allegations made against the doctor. Following the preliminary investigation, a panel of the Board was convened to hold an informal hearing on the allegations. After the panel found that the doctor had not engaged in unprofessional conduct, the Board realised that it had neglected to provide the panel with one of the reports that it received during its preliminary investigation. <br />
<br />
The primary judge held that the error, a factual one, was sufficient to enliven a power in the Board to revisit the earlier decision (on the basis of the High Court's decision in <i>Bhardwaj</i>). On appeal, the Court of Appeal held that Bhardwaj did not apply (because the error was non-jurisdictional)[7] and that the Board otherwise lacked power to revisit a final and binding decision about the doctor's conduct.[8] <br />
<br />
Nettle JA, with whom Chernov JA agreed, pointed to a number of features of the statutory scheme as revealing an intention that findings and determinations of the Board, which do not involve jurisdictional error and which are not challenged in accordance with procedures prescribed by the Act or by judicial review, 'are effective for all purposes notwithstanding they may involve reviewable error'. This construction also reflected 'the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand'.[9]<br />
<br />
Having arrived at a construction of the legislation that did not permit the Board to revisit its earlier decision, Nettle JA also expressed doubt as to whether s 40 of the ILA would operate to imply a general power to add to, subtract from or reverse a previous exercise of the power.[10]<br />
<br />
<h3>
Determining whether internal review can be conducted</h3>
<br />
Ultimately, whether a government decision-maker is empowered to reconsider, alter or revoke an administrative decision will be a matter of statutory construction, which will require close consideration of the relevant legislative scheme.<br />
<br />
Relevant factors may include:<br />
<br />
<ul>
<li>whether the decision in question is of a character usually understood as being irrevocable;</li>
</ul>
<ul>
<li>whether the power in question must be exercised upon satisfaction of certain criteria; </li>
</ul>
<ul>
<li>whether the decision affects a person's rights;</li>
</ul>
<ul>
<li>whether the decision triggers certain other obligations under the statutory scheme; and</li>
</ul>
<ul>
<li>whether the statutory scheme provides for a decision concerning rights following on some process of formal determination.</li>
</ul>
<br />
<h3>
Further information</h3>
<br />
The VGSO has extensive experience providing advice to government decision-makers on review of administrative decisions and can assist decision-makers to design internal review procedures and draft relevant policies where no such procedures or policies have been prescribed by legislation. For advice in this respect, please contact Alison O'Brien, Assistant Victorian Government Solicitor, or Leveasque Peterson, Assistant Victorian Government Solicitor.<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/alison-obrien" target="_blank">Alison O'Brien</a><br />
Assistant Victorian Government Solicitor<br />
8684 0277<br />
<br />
Leveasque Peterson<br />
Assistant Victorian Government Solicitor<br />
8684 0462<br />
<br />
This blog was written by Maya Narayan, Senior Solicitor, and Jack Maxwell, Solicitor.<br />
<br />
<span style="font-size: xx-small;">___________________________</span><br />
<span style="font-size: xx-small;"><br /></span>
<span style="font-size: x-small;">[1] (2002) 209 CLR 597.</span><br />
<span style="font-size: x-small;">[2] (2017) 250 FCR 31.</span><br />
<span style="font-size: x-small;">[3] MJD, [256] (Perry J). Perram J, in dissent, held that s 33(1) could be invoked as a source of power to revoke the decision in question and that no contrary intention sufficient to oust the operation of that provision was evinced by the relevant legislative scheme: [62], [96].</span><br />
<span style="font-size: x-small;">[4] <i>MJD</i>, [100] (Mortimer J).</span><br />
<span style="font-size: x-small;">[5] <i>MJD</i>, [254] (Mortimer J).</span><br />
<span style="font-size: x-small;">[6] (2006) 25 VAR 449.</span><br />
<span style="font-size: x-small;">[7] <i>Kabourakis</i>, [4] (Warren CJ), [6] (Chernov JA), [43]-[46] (Nettle JA).</span><br />
<span style="font-size: x-small;">[8] <i>Kabourakis</i>, [6] (Chernov JA), [83] (Nettle JA).</span><br />
<span style="font-size: x-small;">[9] <i>Kabourakis</i>, [48] (Nettle JA).</span><br />
<div>
<span style="font-size: x-small;">[10] <i>Kabourakis</i>, [83] (Nettle JA).</span></div>
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-21069100381802381632018-05-14T18:21:00.000+10:002018-05-14T18:22:39.778+10:00The 2018-2019 Victorian Budget: Does your project involve sale, acquisition or leasing of land? <br />
In response to the demands placed on existing State services and public infrastructure by strong population growth, the Victorian Budget announced allocation of funding for several substantial infrastructure projects. Funded projects have been identified in diverse fields, such as: road and rail; building and expanding hospitals; purchasing land for new schools; and delivering new or upgraded facilities for emergency services staff and volunteers. In addition, the Federal budget announced funding for the State's Airport Rail Link and North East Link freeway infrastructure projects. In order to deliver these infrastructure projects, sponsoring agencies will need to acquire, sell, lease and access land, and in doing so, navigate legislative and policy frameworks regulating Government dealings with land.<br />
<br />
The <i>Victorian Government Land Transactions Policy and Guidelines April 2016</i> establishes strict requirements for Victorian Government agencies when dealing with the sale, acquisition and leasing of land. Key features of the policy include that in the absence of an exemption, agencies:<br />
<br />
<ul>
<li>must obtain the Victorian Government Land Monitor's approval for any sale or purchase of an interest in land with a value of $750,000 or more before an offer is made;</li>
<li>must not grant an interest in land at a price less than the current market rent or sale value, as determined by the Valuer-General Victoria (<b>VGV</b>);</li>
<li>must not purchase an interest in land at a price which is greater than the current market rent or sale value, as determined by the VGV;</li>
<li>must not sell any land without following a public process such as an auction, tender or expression of interest campaign;</li>
<li>prior to offering land for sale by a public process, have in place the most appropriate zoning which enables the land to be used or developed in accordance with its highest and best use; </li>
<li>must not grant a lease of land which contains an option to purchase; and</li>
<li>must have regard to the existence of native title rights and interests in the land.</li>
</ul>
<br />
Where a lease over Crown land is proposed, an agency must consider: whether the land is reserved for a public purpose; who the appointed land manager is; the criteria for approving the permitted use and agreement terms as set out in legislation; and the maximum tenure lengths permissible. These are typically set at 21 years for leases and 10 years for licences (each including options). This analysis will help to identify the Government entity with authority to grant the lease and any salient legislative restrictions such as maximum terms and limitations on permitted uses. The <i>Leasing Policy for Crown Land in Victoria 2010 </i>administered by DELWP ensures a consistent approach to leasing of Crown land by requiring:<br />
<br />
<ul>
<li>use of DELWP's standard form leasing documentation; and</li>
<li>all lease proposals by a land manager other than the Minister for Energy Environment and Climate Change to have the Approval in Principle of the Minister and subsequent terms and conditions approval.</li>
</ul>
<br />
The VGSO Property and Native Title Teams have extensive experience in Government property transactions and are well placed to assist agencies in navigating compliance with legislation and policies applicable to sale, acquisition and leasing of land.<br />
<br />
<a href="mailto:anthony.leggiero@vgso.vic.gov.au" target="_blank">Anthony Leggiero</a><br />
Managing Principal Solicitor<br />
9947 1430<br />
<br />
<a href="mailto:mary.scalzo@vgso.vic.gov.au" target="_blank">Mary Scalzo</a><br />
Managing Principal Solicitor<br />
9947 1419<br />
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-11573502405319608542018-05-08T09:32:00.000+10:002018-05-08T10:38:25.432+10:00The 2018-2019 Victorian Budget: Does your project involve Information Sharing?<br />
<br />
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The <a href="https://www.budget.vic.gov.au/" target="_blank">Victorian Budget <i style="mso-bidi-font-style: normal;">2018-19</i> </a>included allocation of funds to a wide range of areas where
government needs to balance privacy concerns with the benefits of sharing
information.<span style="mso-spacerun: yes;"> </span>Common areas where this
arise are in family violence and in the health, disability, justice and
education sectors.<o:p></o:p></div>
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<br /></div>
<div class="LDStandardBodyText">
A key announcement in the Budget was the<i style="mso-bidi-font-style: normal;"> </i>allocation of $13.4 million (and $30
million over the forward estimates) to support a new whole of Government initiative
known as the 'Child Information Sharing Reforms'.<span style="mso-spacerun: yes;"> </span>This initiative is underpinned by the <i>Children
Legislation Amendment (Information Sharing) Act 2018 </i><span style="mso-bidi-font-style: italic;">which came into force on 10 April 2018. <span style="mso-spacerun: yes;"> </span>The reforms </span>seek to protect vulnerable
children by simplifying and improving information sharing arrangements between specified
government agencies and service providers.<o:p></o:p></div>
<div class="LDStandardBodyText">
<br /></div>
<div class="LDStandardBodyText">
Knowing when and how to lawfully disclose information
in different contexts is vital. <span style="mso-spacerun: yes;"> </span>However,
an overly legalistic or unbalanced approach can lead to an unwillingness to
share information, which may result in negative outcomes for Victorians,
particularly for vulnerable families experiencing family violence who rely on a
number of integrated support services, built on effective information sharing.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="LDStandardBodyText">
<span style="mso-spacerun: yes;"><br /></span></div>
<div class="LDStandardBodyText">
A key objective of the Child Information Sharing Reforms
is to promote child wellbeing and safety by<i style="mso-bidi-font-style: normal;">
enabling</i> information sharing.<span style="mso-spacerun: yes;"> </span>Budget
funding will target training for workers to understand when it is appropriate to
share information, to improve early risk identification and intervention and
increase collaboration for the wellbeing and safety of children.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="LDStandardBodyText">
<span style="mso-spacerun: yes;"><br /></span></div>
<div class="LDStandardBodyText">
VGSO has extensive experience in advising on
information sharing in a wide range of different contexts.<span style="mso-spacerun: yes;"> </span>Please call one of our experts in this area
if you require assistance in understanding how to discharge your obligations
when sharing information: </div>
<div class="LDStandardBodyText">
<br /></div>
<div class="LDStandardBodyText">
<br /></div>
<div class="LDStandardBodyText">
<a href="mailto:julie.freeman@vgso.vic.gov.au" target="_blank">Julie Freeman</a></div>
<div class="LDStandardBodyText">
Assistant Victorian Government Solicitor </div>
<div class="LDStandardBodyText">
9947 1404</div>
<div class="LDStandardBodyText">
<br /></div>
<div class="LDStandardBodyText">
<a href="mailto:rebecca.radford@vgso.vic.gov.au" target="_blank">Rebecca Radford</a></div>
<div class="LDStandardBodyText">
Managing Principal Solicitor </div>
9947 1403VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-86033961207320552302018-04-13T10:04:00.000+10:002018-04-13T10:05:06.483+10:00Easement - Do we have one?The State and its agencies own a significant amount of freehold land across Victoria, in addition to the extensive Crown Lands Estate. The creation of easements to either benefit or encumber that freehold land is often necessary to realise objectives to develop either State owned land or privately owned surrounding land and ensure the efficient provision of necessary infrastructure and facilities. For example, the State may require a utility service provider to install pipes, fittings, and drains under State owned land to provide a water supply to a proposed new school building. Alternatively, a developer of land that adjoins State owned land may require a right to connect to drainage or sewerage pipes under the State owned land before the local Council will grant them a permit to construct units on their land and certify the necessary plan of subdivision.<br />
<br />
<h3>
Do we need an easement?</h3>
<br />
Before deciding on creating an easement, it is important for the department or agency to step back and ask a few questions. For example, you should consider:<br />
<br />
<ol>
<li>Will a right to use the land in common with others suffice or is there a need for exclusive possession?</li>
<li>Is the right to use the land to be enjoyed by whomever is the owner of the benefiting land at any given point in time or is the use right intended to be personal to the State or an individual</li>
<li>Are the following (4) essential characteristics of an easement present?[1]</li>
</ol>
<ul><ul>
<li><i>There must be a dominant and a servient tenement </i>- The land that benefits from the easement is the dominant tenement and the land subjected to the easement is the servient tenement.</li>
<li><i>The right must accommodate the dominant tenement </i>- The right claimed as an easement must be reasonably necessary for the better enjoyment of the dominant tenement and the two parcels of land affected by the easement arrangement must be contiguous.</li>
<li><i>Both tenements must be owned or occupied by different persons.</i></li>
<li><i>The right must be of a kind capable of forming the subject matter of a grant </i>- The right must be sufficiently precise and certain and not confer a right to exclusive possession.</li>
</ul>
</ul>
<br />
The answers to these questions will assist with determining whether an easement is the appropriate form of tenure.<br />
<br />
Easements create non-possessory, proprietary interests in land. An easement will be the appropriate form of tenure if the (3) questions above are answered in the affirmative.<br />
If exclusive possession is needed, a lease will be the appropriate instrument, not an easement. If a mere personal right to use land for a defined time period is required, a contractual licence will be needed rather than an easement.<br />
<br />
<h3>
How should we create the easement?</h3>
<br />
<h4>
<i>Statute</i></h4>
<br />
A certified plan can be lodged at Land Use Victoria for the purposes of creating an easement, upon the Registrar of Titles' registration of that plan. A planning permit will normally need to be obtained under the relevant planning scheme and lodged with the certified plan, registration application, the title to the burdened land and other necessary documentation [2].<br />
<br />
In the context of a subdivision, easements necessary for the reasonable enjoyment of the property may be created by being shown on the certified and registered plan of subdivision.[3] These include easements of way, drainage, party wall, supply of water, gas, electricity, sewerage, telephone and other services either through, over or under lands.<br />
<br />
The scope of the rights granted to the beneficiaries of these easements is determined by the common law. Where more bespoke or specific rights are required, an express grant will be needed as outlined below.<br />
<br />
<h4>
<i>Express Grant</i></h4>
<br />
Creation of an easement by express grant can be done by deed or using Land Use Victoria's approved form.<br />
<br />
While existing equitable easements are protected by law in Victoria in the sale scenario, formal registration of an easement is nevertheless recommended in the interests of clarity and certainty. Registration may also save an easement which might otherwise be regarded as abandoned through extended non use.<br />
<br />
<h4>
<i>Doctrine of the lost modern grant</i></h4>
<br />
The common law doctrine of lost modern grant will apply to create easements over land in Victoria where there is proof that a right in the nature of an easement has been used openly and continuously for at least 20 years, without objection by the owner of the burdened land.<br />
<br />
The doctrine of the lost modern grant does not operate over Crown land.<br />
<br />
Wrongful interference with or obstruction of an easement constitutes the tort of nuisance and, among other things, gives the dominant owner a right to obtain damages and/or an injunction.<br />
<br />
As Property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues. If you need further advice in relation to easements, please contact:<br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/jennifer-mclean" target="_blank">Jennifer McLean</a><br />
Senior Solicitor<br />
9947 1429<br />
<a href="mailto:jennifer.mclean@vgso.vic.gov.au">jennifer.mclean@vgso.vic.gov.au</a><br />
<br />
<a href="https://www.vgso.vic.gov.au/our-people/profile/elizabeth-wortley" target="_blank">Elizabeth Wortley</a><br />
Senior Solicitor<br />
9947 1433<br />
<a href="mailto:elizabeth.wortley@vgso.vic.gov.au">elizabeth.wortley@vgso.vic.gov.au</a><br />
<br />
<hr align="left" size="1" width="33%" />
<br />
<div id="ftn1">
<div class="MsoFootnoteText">
<span style="font-size: x-small;"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times new roman" , serif;">[1]</span></span></span> <o:p></o:p>These (4) characteristics are not a requirement for statutory easements in gross conferred upon various government or other bodies that provide essential public services, such as gas, power and water supplies.</span><br />
<span style="font-size: x-small;"><br /></span></div>
</div>
<div id="ftn2">
<div class="MsoFootnoteText">
<span style="font-size: x-small;"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times new roman" , serif;">[2]</span></span></span> <i>Subdivision Act 1988</i> ss 23 and 24</span><br />
<span style="font-size: x-small;"><br /></span>
<span style="font-size: x-small;"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-family: "times new roman" , serif;">[3]</span></span></span> <i>Transfer of Land Act 1958 </i>s98</span></div>
</div>
VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-32082342089904977872018-01-22T12:39:00.000+11:002018-01-25T14:22:40.614+11:00Court of Appeal considers parallel regulation under the Water Act 1989 and the Planning and Environment Act 1987A recent decision of the Victorian Supreme Court of Appeal has provided authority on the interrelationship between parallel frameworks under the <i><a href="http://www9.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/wa198983/" target="_blank">Water Act 1989</a></i> (<b>Water Act</b>) and the <i><a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/paea1987254/" target="_blank">Planning and Environment Act 1987</a> </i>(<b>PE Act</b>). In <i><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2017/385.html" target="_blank">Stanley Rural Community Inc v Stanley Pastoral Pty Ltd</a></i>, it was ultimately found that licences conferred under the Water Act cannot be limited by the PE Act without an express provision.<br />
<br />
<h3>
What is this case about? </h3>
<br />
In 2013, Stanley Pastoral Pty Ltd purchased land which included a licence under s 51 of the Water Act to ‘take and use’ water on its property. Stanley Pastoral applied to Goulburn Murray Water to split the entitlement to extract 19ML from groundwater and 31ML from surface water.<br />
<br />
After the entitlement split was granted, Stanley Pastoral applied to Indigo Shire Council (<b>Council</b>) for a planning permit for the use and development of the land for a 'utility installation', which is defined as land used to collect, treat, transmit, store or distribute water. Specifically, the permit application was for a change of use from an existing bore to the development of a water transfer station to include a shed, water silos, and associated equipment.<br />
<br />
This case commenced after Council refused to grant the permit on the basis that the groundwater extraction would adversely affect the aquifer, diminish the potential for the land for agriculture and horticulture, and prejudice the land served by nearby bores.<br />
<br />
<h3>
VCAT grants permit</h3>
<br />
At first instance, VCAT <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2015/36.html?stem=0&synonyms=0&query=title(Stanley%20Pastoral%20Pty%20Ltd%20v%20Indigo%20SC%20)" target="_blank">granted the permit</a>, finding that the means by which groundwater is extracted was not subject to controls under the PE Act or the planning scheme. VCAT found that the Water Act provides the necessary controls for the flow, use and management of water (including groundwater).<br />
<br />
<h3>
Objectors appeal the decision</h3>
<br />
Objectors from Stanley Rural Community Inc appealed VCAT's decision to the Supreme Court. McDonald J upheld the grant of the permit but for different <a href="http://www9.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2016/764.html" target="_blank">reasons</a>.<br />
<br />
<h4>
<i>Intention to limit a conferred right should be expressly demonstrated</i></h4>
<br />
His Honour centred on the use of term 'expressly' in s 8(6) of the Water Act, which deals with continuation of private rights to water:<br />
<br />
<blockquote class="tr_bq">
<i>A right conferred by this section is limited only to the extent to which an intention to limit it is expressly (and not merely impliedly) provided in…any other Act or in any permission or authority granted under any other Act.</i></blockquote>
<br />
Stanley Pastoral's right was conferred under s 8(4)(a), which grants a person the right to use water taken or received by that person in accordance with a licence or other authority issued to that person under the Water Act.<br />
<br />
His Honour found that because there were no words in the PE Act or in the planning scheme <u>expressly</u> qualifying the rights of a water licence under the Water Act, then rights created under the Water Act to take and use groundwater cannot be the subject of objection or control pursuant to a planning scheme.<br />
<br />
<h3>
Final outcome</h3>
<br />
In a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2017/385.html" target="_blank">decision</a> dated 20 December 2017, the Court of Appeal refused leave to appeal. <br />
<br />
The Court found that powers to regulate or prohibit use or development of any land under s 6(2) of the PE Act do not expressly demonstrate an intention to limit the rights conferred under s 8 of the Water Act. Therefore, the PE Act did not limit the right under s 8(4)(a) of the Water Act. Their Honours further held that the words in parentheses 'and not merely impliedly' within s 8(6) of the Water Act make this clear.<br />
<br />
The Court also found that the right conferred by s 8(4)(a) of the Water Act to use water 'taken or received…in accordance with a licence…under this Act' is:<br />
<br />
<blockquote class="tr_bq">
<i>one upon which the permit applicant can rely in respect of water taken and used under the s 51 take and use licence, by virtue of s 8(6) as 'limited only to the extent to which an intention to limit is expressly (and not merely implied) provided in…' statutory instruments of the various types specified.</i></blockquote>
<br />
Separately, their Honours overruled VCAT's finding at first instance that the planning scheme might have made express provision to limit water rights. The Court cast doubt on the prospect that a planning scheme meets the description found in s 8(6) of the Water Act of 'any permission or authority granted under any other Act'.<br />
<br />
Finally, the Court rejected the applicant's argument that the 'real and substantial purpose' of the proposed land use was an innominate 'groundwater extraction' use. Instead, their Honours confirmed VCAT's finding that the 'real and substantial purpose' of the proposed land use fit within the broad definition of 'utility installation' in the planning scheme - therefore requiring a planning permit for 'utility installation'.<br />
<br />
<h3>
Key take-away</h3>
<br />
The case demonstrates that licences conferred under the Water Act cannot be limited by the PE Act as it does not currently make express provision in relation to the extraction of groundwater.<br />
<br />
<h3>
Further information</h3>
<br />
VGSO regularly advises in planning, water and related areas including development approvals, planning scheme amendments, drainage and sewerage projects and land management. For a discussion of the services VGSO can provide in this area, please contact Annette Jones, Principal Solicitor or Natasha Maugueret, Managing Principal Solicitor.<br />
<a href="http://www.vgso.vic.gov.au/our-people/profile/annette-jones" target="_blank"><br /></a>
<a href="http://www.vgso.vic.gov.au/our-people/profile/annette-jones" target="_blank">Annette Jones</a><br />
Principal Solicitor<br />
03 8684 0431<br />
<br />
<a href="http://www.vgso.vic.gov.au/our-people/profile/natasha-maugueret" target="_blank">Natasha Maugueret</a><br />
Managing Principal Solicitor<br />
03 8684 0223<br />
<br />VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-51845450169834005722017-12-22T09:28:00.001+11:002018-01-25T14:23:02.862+11:00Progress on National water reform and future reform priorities<i>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.</i><br />
<i><br /></i>
<i>If you haven't had the chance to look at the draft report, we've summarised the key points in this blog</i>.<br />
<div>
<br /></div>
<div>
<h3>
National Water Reform </h3>
<div>
<br /></div>
<div>
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' (<b>NWI</b>). 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. </div>
<div>
<br /></div>
<h3>
Australian Water Reform </h3>
<div>
<br /></div>
<div>
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. </div>
<div>
<br /></div>
<div>
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. </div>
<div>
<br /></div>
<h3>
Progress and achievements </h3>
<div>
<br /></div>
<div>
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:</div>
<div>
<ul>
<li>creation of legislative and policy frameworks which provide for clear and long-term water entitlements for consumptive uses</li>
<li>establishment of water planning arrangements for the majority of areas of intensive water use across Australia</li>
<li>establishment of water markets which allow water to be traded to higher value uses </li>
<li>implementation of water resource accounting such as water metering</li>
<li>provision of integrated management of water for environmental sustainability purposes in most jurisdictions.</li>
</ul>
</div>
<div>
The report also identifies the improvement of urban water and irrigation infrastructure services as a consequence of improved institutional and pricing reforms.</div>
<div>
<br /></div>
<div>
The Commission further identifies that overall water reform has delivered significant benefits to irrigators, other water users and the broader community.</div>
<div>
<br /></div>
<h3>
Why is reform required? </h3>
<div>
<br /></div>
<div>
Along with identifying progress made to date the Commission report identifies further work required by the Government such as:</div>
<div>
<ul>
<li>actioning unmet NWI objectives and outcomes; </li>
<li>addressing gaps and limitations in existing NWI policy settings highlighted by the Millennium Drought; and </li>
<li>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. </li>
</ul>
</div>
<div>
It is these gaps in current water policy that form the rationale for the recommended reform priorities. </div>
<h3>
<br />Future reform priorities</h3>
<div>
<br /></div>
<div>
The report identified the following reform priorities: </div>
<div>
<ul>
<li>maintaining the key foundations of water management; and </li>
<li>improving and enhancing national policy settings in areas such as entitlement and planning arrangements for extractive industries, and the water requirements of Indigenous people. </li>
</ul>
</div>
<div>
Of importance are recommendations to revise existing policies such as the current arrangements for extractive industries and incorporating alternative water sources. </div>
<h3>
<br />Final Report </h3>
<div>
<br /></div>
<div>
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. </div>
<div>
<br /></div>
<div>
<h3>
Resource</h3>
<div>
<br /></div>
<div>
National Water Reform Report: <a href="https://www.pc.gov.au/inquiries/current/water-reform/draft">https://www.pc.gov.au/inquiries/current/water-reform/draft</a></div>
</div>
<div>
<br /></div>
<div>
<i>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. </i></div>
<div>
<br /></div>
<div>
<a href="http://www.vgso.vic.gov.au/our-people/profile/natasha-maugueret" target="_blank">Natasha Maugueret</a></div>
<div>
Managing Principal Solicitor</div>
<div>
<a href="mailto:natasha.maugueret@vgso.vic.gov.au">natasha.maugueret@vgso.vic.gov.au</a></div>
<div>
8684 0223</div>
<div>
<br /></div>
<div>
<a href="http://www.vgso.vic.gov.au/our-people/profile/annette-jones" target="_blank">Annette Jones</a></div>
<div>
Acting Managing Principal Solicitor</div>
<div>
<a href="mailto:annette.jones@vgso.vic.gov.au">annette.jones@vgso.vic.gov.au</a></div>
<div>
8684 0431</div>
<div>
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</div>
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-11618413936454639682017-12-14T18:12:00.001+11:002017-12-15T12:20:50.038+11:00Royal Commission into Institutional Responses to Child Sexual Abuse releases final report<br />
The Royal Commission into Institutional Responses to Child Sexual Abuse has today delivered its <a href="https://www.childabuseroyalcommission.gov.au/final-report" target="_blank">final report</a> 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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
The Royal Commission has already provided three policy reports to government: <a href="https://www.childabuseroyalcommission.gov.au/working-children-checks" target="_blank">Working with Children Checks</a>, <a href="https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation" target="_blank">Civil Litigation and Redress</a>, and <a href="https://www.childabuseroyalcommission.gov.au/criminal-justice" target="_blank">Criminal Justic</a>e.<br />
<br />
<br />
Link to <a href="https://www.childabuseroyalcommission.gov.au/case-studies/final-sitting-december-2017-sydney" target="_blank">final sitting address and its transcript</a>.<br />
<br />
<a href="mailto:amie.herdman@vgso.vic.gov.au" target="_blank">Amie Herdman</a><br />
Principal Solicitor<br />
<br />
<a href="mailto:peter.psarakis@vgso.vic.gov.au" target="_blank">Peter Psarakis </a><br />
Solicitor<br />
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-44423445464383307362017-12-13T12:04:00.000+11:002017-12-13T12:05:39.876+11:00Heritage Update: Increased protection and reduced regulation <br />
On the 1 November 2017, the <i><a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/3297D78C7620B8DDCA2580E4000B8857/$FILE/17-007aa%20authorised.pdf" target="_blank">Heritage Act 2017</a> </i>(the <b>Act</b>) came into operation. The new Act replaced the <i>Heritage Act 1995</i>, with alterations designed to increase the level of protection provided for places and objects of cultural heritage significance, while reducing regulatory processes.<br />
<br />
Some of the most significant changes are described below.<br />
<br />
<h4>
Improved process for heritage registration</h4>
<br />
The Act has introduced changes to the heritage registration process, including:<br />
<br />
<ul>
<li>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). </li>
<li>There are further procedural variations, including a new 90 day time limit for Heritage Council hearing determinations (s 49(2)). </li>
</ul>
<br />
<h4>
Simplified process for permits</h4>
<br />
The Act has introduced changes to the process for obtaining permits, including:<br />
<br />
<ul>
<li>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)). </li>
<li>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)). </li>
<li>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)). </li>
<li>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).</li>
</ul>
<br />
<h4>
Strengthened enforcement and compliance</h4>
<br />
The Act has also introduced stronger enforcement and compliance provisions, including:<br />
<br />
<ul>
<li>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. </li>
<li>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). </li>
</ul>
<br />
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.<br />
<br />
<h4>
Where can I go for more information?</h4>
<br />
For more information about the changes in the Act and the review process that lead to these changes, please <a href="https://www.heritage.vic.gov.au/legislation/changes-to-state-legislation" target="_blank">click here</a> to be directed to the Department of Environment, Land, Water and Planning website.<br />
<br />
If you would like advice about the changes and their implications for your practice, please contact:<br />
<br />
<a href="http://www.vgso.vic.gov.au/our-people/profile/natasha-maugueret" target="_blank">Natasha Maugueret</a><br />
Managing Principal Solicitor<br />
8684 0402<br />
<br />
<a href="http://www.vgso.vic.gov.au/our-people/profile/annette-jones" target="_blank">Annette Jones</a><br />
Acting Managing Principal Solicitor<br />
8684 0431<br />
<br />
<a href="http://www.vgso.vic.gov.au/our-people/profile/mark-egan" target="_blank">Mark Egan</a><br />
Principal Solicitor<br />
8684 0489<br />
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0tag:blogger.com,1999:blog-6717382926894285581.post-27268110147939693732017-11-15T09:39:00.000+11:002017-11-15T09:39:55.054+11:00Individualised justice and consistency: recent changes in Victorian sentencing lawLast month, the High Court handed down judgment in <i><a href="http://eresources.hcourt.gov.au/showCase/2017/HCA/41" target="_blank">Director of Public Prosecutions v Dalgliesh (a pseudonym)</a></i>, 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.<br />
<br />
<h3>
Sentencing in Victoria, a refresher</h3>
<br />
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 <i>Crimes Act 1958</i>, the <i>Summary Offences Act 1966</i>, the <i>Drugs, Poisons and Controlled Substances Act 1981</i> and the <i>Road Safety Act 1986</i>.<br />
<div>
<br />
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 <b>purposes, principles and factors</b>, which are found in the common law and the <i>Sentencing Act 1991</i>. For those wanting to do background reading, there are many great resources on how sentencing works, including the Sentencing Council's <a href="https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/AQuickGuideToSentencing2017.pdf" target="_blank">Quick Guide to Sentencing</a> and the Judicial College of Victoria's <a href="http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm%20-%2013888.htm" target="_blank">Sentencing Manual</a>.<br />
<br />
Of particular note for the recent changes are the sentencing <b>factors</b> 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.<br />
<h3>
<br />The decision in Dalgliesh</h3>
<br />
The issue before the High Court in <i>Dalgliesh</i> 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 <i>Dalgliesh</i>, 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 <i><a href="http://eresources.hcourt.gov.au/showCase/2001/HCA/64" target="_blank">Wong v The Queen</a></i> (and as the High Court reiterated in <i>Dalgliesh</i>), 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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.'<br />
<br />
In doing so, the Court also overruled the decision in <i><a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2011/408.html?context=1;query=ashdown" target="_blank">Ashdown</a></i>, 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.'<br />
<br />
<h3>
More change to come … amendments to the Sentencing Act</h3>
<br />
The other change on its way for sentencing in Victoria is in the form of legislation. Parliament recently passed the <i>Sentencing Amendment (Standard Sentences) Bill 2017</i>, 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. <br />
<h3>
<br />Key takeaways</h3>
<br />
<br />
<ul>
<li>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. </li>
<li>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. </li>
</ul>
<br />
<br />
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.<br />
<br />
This blog was prepared by Katharine Brown, Solicitor.<br />
<br />
<a href="http://vgso.vic.gov.au/our-people/profile/paula-cumbo" target="_blank">Paula Cumbo </a><br />
9032 3043<br />
<br />
Tien Tran<br />
8684 0414</div>
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VGSO Bloghttp://www.blogger.com/profile/03279405836564280663noreply@blogger.com0