What to do if you are contacted by IBAC

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

• 'Operation Fitzroy' into allegations of serious corruption in the former Department of Transport and Public Transport Victoria;
• 'Operation Ord' into alleged serious corruption at the Department of Education and Training; and
• 'Operation Dunham' into the Department of Education and Training’s $180 million Ultranet project.

In the course of conducting its investigations, IBAC may, among other things, issue a witness summons or a confidentiality notice. As a public servant receiving such documents from IBAC, what should you do?

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

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

If the summons is for an examination, the summons will state:

• your rights and obligations in respect of the examination;
• whether the examination will be held in private or in public; and
• the matters you will be asked to discuss at the examination.

If you receive a witness summons:

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

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

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

If you receive a confidentiality notice:

• You cannot discuss with anyone the matters specified in the notice, unless IBAC authorises this, or it is necessary to comply with the notice, or to obtain legal advice. It is an offence not to comply with a confidentiality notice.
• You may only disclose to another person a matter specified in the notice:

• if you are directed or authorised by IBAC to do so;
• if it is necessary in order to obtain any information, document or other thing that you need to comply with a witness summons or confidentiality notice; or
• subject to some restrictions, to obtain legal advice or representation in relation to a witness summons or confidentiality notice.

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

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

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

Eliza Bergin
Principal Solicitor
8684 0267

Greg Elms
Managing Principal Solicitor
8684 0414

Katie Miller
Innovation Counsel
8684 0268

Making sense of 'nuisance': Fertility Control Clinic v Melbourne City Council

The picketing of abortion clinics has been a hot button issue for many years in the US. Those protests are often portrayed as a 'clash' of rights between religious freedom and peaceful assembly on one hand, and a woman's right to privacy and control of her body on the other.

However, the recent Supreme Court decision in Fertility Control Clinic v Melbourne City Council shows that the extent to which rights are protected will often turn on the nature and scope of a decision maker's power under legislation.

The case also demonstrates that even though a decision maker may make a legal error, that doesn't necessarily give rise to a legal remedy.

A nuisance?

The Fertility Control Clinic provides pregnancy termination (among other services) at a private clinic in East Melbourne. For at least a decade, members of a religious group called the 'Helpers of God's Precious Infants' (or 'HoGPI', for short) have gathered outside.

The Clinic contacted Melbourne City Council claiming that HoGPI had engaged in nuisance by, among other things, harassing women as they entered the clinic, trying to block access to the clinic, and singing loudly outside consultation rooms.

In Victoria, councils have a duty to investigate a nuisance in their district under the Public Health and Wellbeing Act 2008. If a council finds that a nuisance exists, it has to take certain kinds of action under the Act.

The Council wrote back to the Clinic, stating that it thought most of HoGPI's actions weren't a 'nuisance' within the meaning of the Act (other than maybe blocking entry to the clinic), and recommending that the Clinic ‘settle the matter privately’ by contacting Victoria Police.

What the clinic argued

The Clinic brought proceedings in the Supreme Court arguing that the Council failed to discharge its statutory duty by misinterpreting the meaning of 'nuisance' under the Act. The Clinic sought an order compelling the Council to address the HoGPI protests as a 'nuisance'.

The Clinic also sought a declaration that the Council's advice that the Clinic contact Victoria Police did not meet the statutory definition of 'settling the matter privately'.

Errors by the Council were within power

The Court found that – even though the Council had made a legal error in concluding that HoGPI's conduct wasn't a 'nuisance' under the Act – the Council had not failed to exercise its powers under the Act, and the Council's error was within power.

In other words, the Council had performed its duty under the Act by considering whether a nuisance existed, even if it had made a mistake by misinterpreting the meaning of 'nuisance'.  Therefore, the Court didn't make any orders compelling the Council to reconsider the Clinic's letter or address HoGPI's conduct in any particular way.

The Court also found that the Council made an error in recommending that the Clinic 'settle the matter privately' through Victoria Police. Again, however, the Council's error was within power: the Council had discharged its duty by recommending a way for the Clinic to resolve the matter privately, even if it had made a mistake by recommending a means of resolution that wasn't 'private' at all.

The Court made a declaration that referral to Victoria Police was not a method of 'settling the matter privately' under the Act.

No reliance on the Charter or constitutional issues

The Council initially raised issues under the Commonwealth Constitution and the Victorian Charter of Human Rights and Responsibilities 2006.

The case potentially raised questions of conflicting rights under the Charter. Section 38 of the Charter requires public authorities, including councils, to act compatibly with human rights and give proper consideration to a relevant right when making a decision.

Relevant Charter rights in this context include the right to free movement, and the right not to have one’s privacy arbitrarily interfered or reputation unlawfully attacked. 

Conversely, the following Charter rights of HoGPI members were potentially engaged: freedom of thought, conscience, religion and belief; freedom of expression; and the right to peaceful assembly and free association.

The Court did not have to grapple with whether the Public Health and Wellbeing Act 2008 was a burden on the implied freedom of political communication under the Australian Constitution.

Ultimately, neither party relied on those arguments.

Watch this space: new buffer zone laws

A Bill making it an offence to engage in certain behaviour within 150 metres of an abortion clinic has been introduced into, and second read in, the Legislative Assembly.

Victorian Government clients wanting further information or advice can contact:

CatherineRoberts

Managing Principal Solicitor

catherine.roberts@vgso.vic.gov.au

03 8684 0247

EleanorThomas

Senior Solicitor

eleanor.thomas@vgso.vic.gov.au

03 8684 0425

Australian Federalism - Competitive, Coordinate, Cooperative, Coercive or … Confusing?

Illustration: Mallory Brangan

The first Issues Paper in the Reform of the Federation White Paper process canvassed three approaches to federalism beginning with the letter 'c'  ̶  competitive, coordinate and cooperative. The paper also acknowledged the potential for the cooperative to morph into the coercive. According to the latest release from the Federation White Paper taskforce, Australia has a 'confusing' federalism  ̶  a problem the White Paper aims to address.

A story about a leak and a draft

Since our previous blog entry on the Reform of the Federation White Paper, the taskforce has released four Issues Papers about the allocation of roles and responsibilities between the Commonwealth and States. These papers were designed to outline key issues before coming up with policy options in the Green Paper on how to reduce duplication, limit wasteful expenditure and end the 'blame game' between different levels of government in Australia. However, a series of potentially damaging 'leaks' from the Green Paper, has led the Department of Prime Minister and Cabinet to publish a draft Discussion Paper ahead of a formal Green Paper.

How does the draft Discussion Paper hope to reform the Federation?

The draft Discussion Paper is a consultation document containing a number of policy proposals. Although the paper opens with the optimistic assessment that 'Australia's Federation has worked well since 1901', the taskforce has identified a particular need for improvements in how we manage health, education, housing and homelessness. There are also separate proposals for improving the Federation's governance arrangements and financial relations.

The draft policy proposals were arrived at after consultation with the community, states and territories, local government, and the Prime Minister's recently appointed Expert Advisory Panel. The paper stresses that the proposals are merely options; they are not necessarily mutually exclusive, listed in order of preference or approved by all levels of government. The proposals also vary in magnitude and we are cautioned not to expect a 'big bang' moment in federation fixing.

In general terms, the options involve either one level of government 'getting out of the way' while the other adopts full responsibility for a policy area, improved coordination among governments, or something in between.

A principled and practical approach

A key weakness of Australian Federalism, according to the draft Discussion Paper, is the ad hoc approach we take to deciding who does what, based on discrete events or priorities of the Government of the day. The taskforce advocates that we instead adopt a principled way forward.

Interestingly, the draft Discussion Paper has replaced the principles set out in the White Paper's Terms of Reference with a new set of 'practical' values, including the decree: 'be fair'. It seems that the new criteria will be used to drive a very pragmatic approach to how federation reform can best drive improvements in community wellbeing, with a focus on the 'main game' of effective service delivery.

Will the real green paper please stand up?

It is unclear how far the real Green Paper will depart from the draft Discussion Paper. However, we can expect to see the final product by the end of the year and in light of the upcoming COAG leaders' summit, perhaps in the very near future.

The process will wrap up in 2016 with a series of suggested policy preferences published in the White Paper. Based on the draft proposals, we now know that constitutional amendment is not on the table.

Finally, given the underlying role played by financial relations in the present state of 'confusion', the Reform of the Federation White Paper will track closely with the White Paper on the Reform of Australia's Tax System. As many of you know, the Commonwealth raises far more revenue than is required to meet its constitutional responsibilities, while States face a significant funding shortfall. For his part, the Federal Treasurer has recently indicated a desire for all levels of government to take responsibility for their own spending requirements. However, if the White Paper supports a policy preference for returning full responsibility to States and Territories in areas like health and education, funding the 'Federation for our future' will be a significant challenge.

VGSO's experts in constitutional law and intergovernmental relations can help Victorian government bodies if you require advice on engaging with the White Paper process.

Rachel Amamoo

Managing Principal Solicitor

8684 0899

rachel.amamoo@vgso.vic.gov.au

Sky Mykyta

Managing Principal Solicitor

8684 0220

sky.mykyta@vgso.vic.gov.au

UPDATED: Marriage Equality in the USA, but what's the constitutional situation here in Oz?

UPDATE

Recently there have been calls for a plebiscite or referendum on marriage equality (the difference between the two is usefully described here. As we've explained in this post, the High Court has found that Commonwealth's marriage power is broad, leaving the decision on how to characterise marriage in Australia to the federal Parliament. A referendum would have to alter the Constitution, and thus constrain the marriage power in some way. Constitutional referendums rarely succeed in Australia because section 128 requires BOTH a majority of voters overall AND a majority of States to vote in favour of the change. It is possible to have an overall majority but to have minorities in 3 States with the result that the change is defeated.
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Unless you've been hiding under a rock, you will know that last week the Supreme Court of the United States (or SCOTUS) found that the US Constitution requires all US States to license and recognise marriages between two people of the same sex.

Facebook even had a special function where you could put a "rainbow" filter over your profile pic. The effect of logging into social media was roughly this:

Source: unknown

Justice Kennedy delivered the majority judgment in Obergefell v Hodges, and he didn't hold back:

"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."

And this:

"Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect - and need - for its privileges and responsibilities."

The US Constitution contains a defined Bill of Rights, but the Fourteenth Amendment also contains a "Due Process Clause", which provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The "liberties" protected by that clause are broader than those set out in the Bill of Rights. Elegantly explaining how this clause leaves open the potential identification and recognition of "new" fundamental rights, the Court said,

"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning."

In the past, the Due Process Clause was used to overturn bans on interracial marriage in the aptly named case Loving v Virginia. The Court also relied on the Fourteenth Amendment's "Equal Protection Clause" which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The Court noted that the two clauses "are connected in a profound way, though they set forth independent principles." Ultimately, the decision was in the most emphatic terms:

"The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them."

OK, so what about here in Australia?

The Australian Constitution, as many of you know, has a few fundamental differences from the US Constitution. For one thing, no Bill of Rights. For another, no due process or equal protection clause. And finally, our Constitution specifically allocates power to legislate about "marriage" to the Commonwealth. While this power is held concurrently with the States (meaning that the States can also legislate about marriage), if the Commonwealth chooses to legislate about marriage to confine the institution to persons of opposite sex (which it did back in 2004), any State or Territory legislation that seeks to provide marriage for same-sex couples is invalid (due to the operation of s 109 of the Constitution).

Section 109 is a supremacy clause - it makes clear that, where there is Commonwealth and State legislation on the same topic and they are in conflict, the Commonwealth law prevails.

Some of you may remember the ACT marriage case, which the High Court decided back in 2013, and which invalidated the Marriage Equality (Same Sex) Act 2013 (ACT).

Although it doesn’t say in terms that same-sex marriage is prohibited, the High Court found that the Commonwealth Marriage Act "necessarily contain[s] the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia."

The High Court rejected an argument that "marriage" means "marriage as it existed as a matter of law at the time of Federation" so there is no constitutional impediment to the Commonwealth amending the Marriage Act 1961 (Cth) to allow for same-sex marriage in Australia.

The upshot is that, in Australia, we have chosen to leave the protection of human rights in the hands of our parliaments. By contrast, in their Constitution, the United States chose "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." As described in last week's decision, "The dynamic of our [US] constitutional system is that individuals need not await legislative action before asserting a fundamental right."

In a 5:4 decision, the US Supreme Court emphatically ended the marriage equality debate in America. The right of same-sex couples to marry is now constitutionally recognised and only a constitutional amendment could reverse the situation. As in Australia, such a path is a difficult one.

Victorian Government clients seeking advice on constitutional or human rights issues can contact:

Sky Mykyta

Managing Principal Solicitor

8684 0220

sky.mykyta@vgso.vic.gov.au

Pranking doesn't pay: when can a licensing authority inquire into criminal conduct by a licensee?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd, a judgment handed down on 4 March 2015, the High Court considered the circumstances in which a regulator can investigate and make findings with respect to alleged criminal conduct by a licensee. The case arose out of a now infamous incident in which Australian commercial radio personalities Mel Greig and Mike Christian telephoned nurse Jacintha Saldanha claiming to be members of the British royal family and sought information regarding the health of the Duchess of Cambridge. The prank call was recorded and broadcast on Today FM's Hot 30 Countdown program on 5 December 2012. Ms Saldanha later committed suicide.

Action by the Australian Communications and Media Authority

ACMA investigated the conduct of Greig and Christian for the purpose of determining whether action should be taken with respect to Today FM's commercial radio broadcasting licence. In a preliminary investigation report, ACMA concluded that Greig and Christian had committed a breach of the Surveillance Devices Act 2007 (NSW). ACMA therefore determined that Today FM had breached a condition imposed upon its commercial radio broadcasting licence by the Broadcasting Services Act 1992 (Cth) (the Act) that it not use its broadcasting service 'in the commission of an offence against … a law of a State'.

Court Proceedings

Today FM sought a declaration in the Federal Court that the Act does not authorise ACMA to make a finding that a licensee has committed a criminal offence. It submitted that the Act only authorises ACMA to take notice of the fact that a licensee has been convicted of an offence by a court. In the alternative, Today FM submitted that the Act breaches the separation of powers mandated by the Commonwealth Constitution by investing ACMA with judicial power.

Today FM's application was dismissed by Edmonds J. An appeal to the Full Federal Court was allowed. ACMA appealed to the High Court.

Judgment of the High Court

French CJ, Hayne, Kiefel, Bell and Keane JJ stated that 'it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.' ACMA was required to determine, to the civil standard of proof, whether criminal conduct had occurred. However, this was to be done as a step in determining whether ACMA should take administrative action in response to a breach by Today FM of its licence conditions. ACMA was not required to determine criminal guilt as a step in the infliction of punishment. According to the majority, there was nothing 'incongruous' about conferring upon a licensing authority power to determine whether a broadcasting service had been used in the commission of a criminal offence.

The majority rejected Today FM's constitutional argument in peremptory fashion, stating that 'none of the features of the power conferred on the Authority to investigate and report on breach of the … licence condition and to take consequential administrative enforcement action support the conclusion that it is engaged in the exercise of judicial power.' Gageler J delivered separate concurring reasons.

What does this case mean for decision-makers?

Administrative decision-makers are often called upon to determine whether conduct amounting to the commission of a criminal offence has taken place. Thus, for example, a Tribunal exercising functions under the Health Practitioner Regulation National Law may be called upon to determine on the balance of probabilities whether a health practitioner has engaged in professional misconduct amounting to the crime of rape or indecent assault.

The Court's decision in Today FM is a reminder that the treatment of criminal offences in the context of administrative decision-making is a wholly different matter from the conduct of criminal proceedings. Administrative decision-makers are not bound by the rules of evidence and must take into account all information that is relevant to the performance of their statutory functions. They apply standards of satisfaction as to factual matters that are fundamentally different from the standard of proof applied by criminal courts. Thus an administrative decision-maker may properly conclude that an offence has been committed even where an acquittal has been entered in respect of the offence by a criminal court. In addition to confirming the scope of ACMA's jurisdiction under the Act, Today FM provides a valuable caution against implying principles of criminal law into administrative decision-making.

Of course, Today FM is a corporation and is not entitled to the privilege against self-incrimination. The issues considered by the High Court in Commissioner of the Australian Federal Police v Zhao were therefore not relevant to this matter. It should, however, be borne in mind that in an appropriate case, an injunction may issue to restrain an administrative decision-maker from acting in circumstances where the performance of its functions may undermine an accused's right to silence.

For queries relating to any of the issues identified in this blog, please contact:

Jonathan Bayly

Principal Solicitor

jonathan.bayly@vgso.vic.gov.au

Janine Hebiton
Managing Principal Solicitor

janine.hebiton@vgso.vic.gov.au

High Court upholds broad anti-consorting laws (is it time to "unfriend" your bikie mates on Facebook..?)

New South Wales had a win on 8 October 2014, with the High Court upholding laws making it a crime to 'consort' with convicted offenders are valid (Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014] HCA 35). You can read the full judgment here.

The anti-consorting legislation empowers police to give people a notice to not 'habitually consort' with named persons.  'Consorting' is quite widely defined under the relevant legislation and includes consorting via electronic media, for example via Facebook or Twitter.  Breach of the notice is an offence.  The case involved a challenge by three plaintiffs (two of whom were members of the Nomads bikie gang) who had each been given a notice, and were subsequently charged with consorting.

The plaintiffs all argued that the legislation breached the constitutionally implied freedom of political communication.  Two also argued that it breached a constitutionally implied right to freedom of association, and that it was invalid for inconsistency with the International Covenant on Civil and Political Rights.

All of the grounds raised by the plaintiffs failed.

The laws are appropriate for stopping crime

A majority of 6:1 found that the anti-consorting provisions burden the implied freedom, but that the provisions are appropriate and adapted to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government (see below for Justice Gageler's distinct approach).  The High Court noted that the provisions do not unduly limit all political communications, or occasions for such communications, and that the proscribed consorting would need to be 'habitual' for the prohibition to apply, which again limited the scope of the prohibition.

But such laws could be read down in future

Justice Gageler, reaching the same conclusion via a different route, found that the provisions are not appropriate and adapted to the purpose of preventing crime, where they limit communications on political matters.  However, he found that the provisions could be read down to exclude 'consorting which is or forms part of an association for a purpose of engaging in communication on governmental or political matter', and the legislation was saved on this basis.  If this approach finds favour in future, it could lead to different results, with laws being held to not apply to political communication.

Only Chief Justice French dissented, in finding that the legislation was not appropriate and adapted because it applied to what he referred to as 'entirely innocent habitual consorting'.  The Chief Justice therefore found the provisions to be invalid.

As for the other grounds, the Court found that the freedom of association was either unnecessary to consider or could not be implied into the Constitution, and unanimously rejected the proposition that a treaty which has not been incorporated into Commonwealth law could circumscribe the legislative power of State Parliaments.

What does this mean for Victoria?

If similar legislation were introduced in Victoria, its interpretation and application would be affected by the processes required under the Charter of Human Rights and Responsibilities Act 2006, which expressly protects rights to freedom of expression and association.  The approach to determining any challenge to hypothetical similar Victorian laws may involve different considerations depending on how the legislation is framed and the nature of the dispute between parties. In determining whether Charter Act rights are limited in such a case, the court would need to engage in a balancing exercise that may involve similar considerations as those considered in this case.  Ultimately, the outcome would depend upon whether any limitation of Charter Act rights could be shown to be lawful and justified.

If you are in the Victorian Government and require advice on constitutional or human rights issues, we can help.

VGSO will be presenting a seminar, open to all Victorian Government client agencies, on this case and its implications.  It will be held on Wednesday, 19 November 2014, from 12:30-2:00pm at Level 33, 80 Collins Street, Melbourne. Please register your interest in attending by emailing marketing.team@vgso.vic.gov.au

For further information about the topic contact:

Adrian Hoel
Principal Solicitor
t: 8684 0244
e: adrian.hoel@vgso.vic.gov.au

Nahal Zebarjadi
Solicitor
t: 8684 0401
e: nahal.zebarjadi@vgso.vic.gov.au

White Paper on Reform of the Federation - what's in it for the States?

Australians want good services and infrastructure with minimal red tape, but accountability is important, and dividing up responsibilities and duties in our constitutional system isn't always easy. While the States have significant responsibilities for service delivery, the Commonwealth is more able to raise revenue to pay for those services. 

There are some areas that are better dealt with locally. There are other areas where a coordinated national approach is appropriate. But which approach is best and when? What does our constitutional system allow? 

The White Paper on Reform of the Federation will hopefully shed some light on these questions.

Just what is a white paper anyway?

A white paper is a report or guide helping stakeholders understand an issue, solve a problem, or make a decision. White papers tend to present a finished outcome, and so there are often green papers along the way. Green papers are usually more open-ended, presenting a range of options to facilitate consultation and help government reach a decision. And before the green papers, there may be issues papers as high level backgrounders on discrete topics. 

What's happening when?

The terms of reference for the White Paper on the Reform of the Federation were released on 30 June 2014. The first Issues Paper, "A Federation for our Future", was released 12 September 2014, and includes a detailed history of Australia's federal system. 

The Commonwealth will prepare further Issues Papers on health, education, housing and homelessness. The White Paper process will also consider transport and infrastructure, Indigenous affairs, justice, disability, welfare services, settlement services, family and parental support, disaster recovery, environmental regulation, adult and community education, and youth transitions. 

A Green Paper setting out options for reform will be released during the first half of 2015. The final White Paper setting out the Commonwealth's position is to be released by the end of 2015.

Why is the White Paper on Reform of the Federation important?

The White Paper has lofty aims: to clarify the roles and responsibilities of each level of government, to improve fiscal sustainability, and in turn help the public understand the federal system better and make interacting with government easier. 

In recent years there has been an accelerating trend towards centralisation of policy and funding in many areas, due in part to the High Court's broad interpretation of Commonwealth powers under the Constitution. 

The Commonwealth has indicated an intention to apply the principle of "subsidiarity" (or decentralisation), whereby responsibility for government services lie with the lowest possible level of government, closest to the beneficiaries of the services. 

How this might happen in practice is where it gets interesting. Under the Constitution, the Commonwealth has limited power over subject matters but broad power to tax. The States have been left with few independent revenue sources but have broad responsibilities, meaning that they are reliant on Commonwealth funding for key areas of service delivery. With funding comes the need for accountability.

As part of the White Paper process, the 2008 Inter-Governmental Agreement on Federal-Financial Relations will be revisited. That Agreement was executed with the intention to improve autonomy for States, but over time, funding agreements with restrictive conditions (also known as "tied grants") have increased. 

This time around revenue will also be on the agenda, with the White Paper on the Reform of the Federation to be closely aligned with the White Paper on the Reform of Australia’s Tax System (for which the terms of reference are yet to be released).

Will the Commonwealth propose constitutional reform? If it doesn’t, how will the Commonwealth resist the urge to impose restrictive conditions on the States receiving federal funds, just as it has since 2008? If it does, will there be bipartisan support for the proposal so that it stands a chance of satisfying our rigorous constitutional amendment process?

Where to from here? 

A Steering Committee will oversee the White Paper process, chaired by the Commonwealth and with representation from the State and Territory representatives First Ministers’ departments and the Australian Local Government Association. It will be a standing item on the COAG agenda. Details on the public consultation process to be released soon on the website at www.federation.dpmc.gov.au. 

VGSO's experts in constitutional law and intergovernmental relations can help Victorian government bodies if you require advice on engaging with the White Paper process. 

VGSO contacts:

Sky Mykyta 

Managing Principal Solicitor

 t 8684 0220

sky.mykyta@vgso.vic.gov.au

Rachel Amamoo

Managing Principal Solicitor

t 8684 0899

rachel.amamoo@vgso.vic.gov.au

When can State courts be given functions that are a precursor to a controversial executive function?

On 14 August 2014 the High Court handed down judgment in Pollentine v Bleijie. The Court unanimously rejected the plaintiffs' challenge to the constitutional validity of s 18 of the Criminal Law Amendment Act 1945 (Qld) (the Act), which provides for the indefinite detention of certain convicted sex offenders.

The Act

Section 18 provides that where a person has been convicted of a sexual offence against a child under the age of 17 years, a judge of the District Court of Queensland may, if two medical practitioners certify that the offender is incapable of exercising proper control over his or her sexual instincts, order that the person be detained in an institution at Her Majesty's pleasure. An order under s 18 may be made in addition to or in substitution for any other sentence imposed by the District Court. A person detained in accordance with s 18 is liable to be detained until such time as the Governor in Council, acting on the advice of two medical practitioners, determines that it is expedient for the person to be released.

While it is convenient to refer to the provisions of the Act in the present tense, it should be noted that, as a practical matter, the Act has largely been superseded by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). [1]

Factual Background

In 1984, each of the plaintiffs pleaded guilty in the District Court to multiple sexual offences against children. Each plaintiff was found to be incapable of controlling his sexual instincts and was ordered by the District Court to be detained at Her Majesty's pleasure. Thus at the date the Court handed down judgment, each of the plaintiffs had spent a period in excess of thirty years in detention pursuant to s 18 of the Act.

Grounds of Constitutional Challenge

The plaintiffs contended that s 18 of the Act undermines the institutional integrity of the Queensland court system contrary to the principles identified by the High Court in Kable v Director of Public Prosecutions (NSW). They submitted that the Act breaches the Kable principles in three ways:

• Firstly, the plaintiffs submitted that s 18 impermissibly delegates to the executive government of Queensland the task of sentencing criminal offenders;
• Secondly, they submitted that an order of the District Court under s 18 is merely a cloak used to give a neutral, apolitical and judicial colour to what is in reality punitive detention by the executive branch of government; and
• Finally, the plaintiffs submitted that as the Act contains no provision empowering the District Court to revoke or vary an order made by it under s 18, it does not contain sufficient 'safeguards' to protect the integrity of the District Court.

The Court's Decision

In dismissing the plaintiffs' challenge to the validity of the Act, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ reiterated that the Kable doctrine does not imply into the constitutions of the States a rigid separation of judicial and political power. In addition, the majority noted that the Act does not purport to require the District Court to undertake the tasks of statutory construction and fact finding in a manner that is inconsistent with the ordinary processes of the criminal law; the Act merely confers upon the Court a discretion to make an order under s 18 if it is satisfied on the evidence before it that the criteria for making such an order are met. Finally, the majority observed that indeterminate detention by the executive government of persons found in judicial proceedings to be incapable of controlling their impulses has a lengthy history in Anglo-Australian law.[2] For these reasons, the majority held that the plaintiffs' challenge to the validity of the Act must fail.

Gageler J delivered a separate concurring judgment. His Honour emphasised that the Act does not provide for the detention of persons by the executive government as punishment for the commission of an offence; rather it authorises indefinite detention for a purpose that 'is properly characterised as wholly protective.' Gageler J rejected the plaintiffs' submission that the power of detention conferred upon the executive government by the Act is 'unconstrained', noting that any determination made by the Governor in Council with respect to the continued detention of a person pursuant to the Act is subject to the constitutionally entrenched jurisdiction of the Supreme Court of Queensland to review executive action for jurisdictional error. His Honour therefore held that the Act did not undermine the integrity of the Queensland court system.

What Does the Decision Mean?

The judgments delivered by the Court in Pollentine contribute to the ongoing process of precisely defining the constitutional principle that was first enunciated in a somewhat impenetrable form in Kable. The judgments of the majority and of Gageler J confirm that Chapter III of the Commonwealth Constitution protects the integrity of State judicial systems by rendering invalid State laws which interfere improperly in the process of judicial decision making.

Thus the Kable principle has been applied to invalidate legislative action which has had the effect of requiring a court of a State to proceed in an unfair or arbitrary manner or to apply findings of fact foisted upon it by the executive branch. The Kable principle does not entrench in the constitutions of the States a rigid separation of powers of the kind embodied in the Commonwealth Constitution. Rather, to adopt the words of Blackmun J in Mistretta v United States, the Kable principle exists to ensure that the reputation of a State court 'may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action.' The principle is directed towards laws which, even if facially neutral, compel a State court to reach a conclusion which has been pre-ordained by one or other of the political branches of government.

The judgments in Pollentine confirm that the Kable principle does not detract from the power of a legislature to confer upon a State court an impartial function of a genuinely judicial nature that serves as a precursor to the exercise by the executive government of some other function. The exercise by the Executive of a function that is contingent on the completion of a judicial process is not at all equivalent to the co-option for political ends of a nominally judicial process.

For more information about the limits the Kable principle places on State governments, please contact:

Jonathan Bayly
Principal Solicitor
03 8684 0223
jonathan.bayly@vgso.vic.gov.au

---

[1] The validity of that Act was upheld by the High Court in Fardon v Attorney-General (Qld).

[2] The majority referred to the provisions of the Criminal Lunatics Act 1800 (UK), which was enacted in response to the case of James Hadfield, who on 15 May 1800 attempted to assassinate George III as the King entered the royal box at Drury Lane Theatre. At the suggestion of Lord Kenyon CJ, who presided over Hadfield's trial, the jury in Hadfield's case returned a verdict of 'not guilty, it appearing to us that he was under the influence of insanity when the act was committed.' Hadfield was subsequently detained in custody, notwithstanding that at the time he was convicted, there was no lawful basis on which to imprison a person who had been acquitted of an offence. The Criminal Lunatics Act was introduced in response to the lacuna in British criminal law exposed by Hadfield's case: see Sir Owen Dixon, 'A Legacy of Hadfield, M'Naghten and Mclean', (1957) 31 Australian Law Journal 255.

Recent facelift for public sector governance

In the 10th year of its operation, the Public Administration Act 2004 (Act) has had a facelift.  On 1 April 2014, the Public Administration Amendment (Public Sector Improvement) Act 2014 (Amending Act) made a number of key changes to Victoria's public sector governance framework.

These changes are as follows:

1. the State Services Authority (SSA) has now been replaced by the Victorian Public Sector Commission (Commission);
2. subsidiaries of public entities are now classified as 'public entities' under the Act, bringing them within the accountability regime in Part 5 of the Act;
3. Department Heads now have a statutory obligation to oversee public entities; and
4. the Secretary of the Department of Premier and Cabinet has the power to issue administrative guidelines to public entities and their subsidiaries.

The Act also now requires the board of a public entity to assess its own performance (collectively) in addition to assessing the performance of individual board members.

1. The Commission

The Commission, like its predecessor the SSA, is tasked with improving Victoria's public sector administration and governance.

The Commission's objectives are to:

• strengthen the efficiency, effectiveness and capability of the public sector; and
• maintain and advocate for public sector professionalism and integrity.

In addition to carrying out the SSA's existing functions (such as issuing binding codes of conduct for employment standards), the Commission will conduct research and disseminate best practice information in relation to:

• public sector administration;
• governance;
• service delivery; and
• workforce management and development. 

The Commission also has a new advocacy function in respect of public sector professionalism and integrity.

2. Subsidiaries are now 'public entities' 

An important change is the expansion of what constitutes a 'public entity' to cover bodies that fall within the meaning of 'subsidiary' in the Corporations Act 2001 (Cth).  Whether a body is a 'subsidiary' of a public entity depends on the level of control the public entity has over the other body.

Subsidiaries are now regulated by Part 5 of the Act, which prescribes minimum governance standards and accountabilities for Victorian public entities and their boards, directors and chairpersons.  In addition, employees of subsidiaries are now subject to the Code of Conduct for Victorian Public Sector Employees.  These obligations are in addition to any obligations that a subsidiary may have under other Victorian Acts or the Corporations Act.

3. Department Heads to oversee public entities 

In a new development, Department Heads will have a statutory obligation to oversee, and provide guidance to, public entities (and their subsidiaries) within their Ministers' portfolios on matters relating to public administration and governance.

Department Heads will also be required to provide to the relevant Minister information about the performance of public entities that fall within that Minister's portfolio.  This information must, in turn, be provided to the Department Heads by the relevant public entity.

These changes provide an opportunity and an obligation on departments to engage proactively with their entities, including monitoring their performance.  The provisions are intended to enable public entities (and their subsidiaries that are public entities), Departments and Ministers to identify and manage governance risks.

4. Administrative guidelines

The Act now empowers the Secretary to the Department of Premier and Cabinet to issue administrative guidelines to public entities and public services bodies.  The purpose of such guidelines is to ensure that consistent standards of administration are maintained across the public sector.

The guidelines will not be binding, but if a public entity intends to operate inconsistently with them, then it must notify the Secretary and provide reasons.

If you are in the Victorian Government and would like more information about these changes, please contact:

Udara Jayasinghe
udara.jayasinghe@vgso.vic.gov.au

Carolyn Doyle
carloyn.doyle@vgso.vic.gov.au
9947 1403

Katie Miller
katie.miller@vgso.vic.gov.au
8684 0460

Crime doesn’t pay: Northern Territory's tough stance on proceeds of crime gets tick of approval from High Court

The idea that offenders shouldn't be allowed to profit from their criminal behaviour isn't a new or a controversial one. Forcing an offender to forfeit gains derived from a criminal offence is accepted as part and parcel of criminal punishment, and all Australian governments have some form of legislation allowing them to confiscate the proceeds of crime from a convicted offender.

But while its common practice to confiscate property derived from offending, most states and territories (including Victoria) confine it to that. That is, the property the State can seize from the offender needs some sort of link with the offending. In Victoria, for example, the property must be 'tainted'.  It has to have been used or intended for use by the offender in connection with the offence, or must have been derived and/or realised from the offence.  Regardless of whether the property belongs to, or was used by, the offender or some other person, if it's found to be 'tainted', the State of Victoria can apply to confiscate it.

The Northern Territory however, took this one step further in relation to drug trafficking and enacted legislation that allows the Director of Public Prosecutions to apply to the NT Supreme Court to have a person officially declared a 'drug trafficker'.  Once labelled a 'drug trafficker', section 94(1) of the Criminal Property Forfeiture Act (NT) mandates that all of that individual's property must be forfeited to the Territory. There is no requirement that the property be connected to or derived from a particular offence or criminal activity generally, it applies to all property owned or effectively controlled by that person, and all property they may have given away, whether acquired before or after the legislation was introduced. Once a person's been tarred with the drug trafficker brush, if the NT DPP makes a forfeiture application in accordance with s 94(1), everything they have goes to the Territory.

The law was bound to be tested, and sure enough, the High Court recently had the opportunity to consider an appeal brought by NT resident, Reginald William Emmerson. Between August 2007 and September 2011 Mr Emmerson was convicted of a range of drug-related offences, including supply of 18.6646kg of cannabis. In 2012, the NT DPP successfully had Mr Emmerson declared a drug trafficker under s 36A of the Misuse of Drugs Act (NT). He was therefore obliged to surrender not only the $70,050 he obtained from the sale of cannabis, but also in excess of $850,000 worth of assets acquired through legitimate means. Mr Emmerson appealed to the NT Court of Appeal, where they set aside the declaration as unconstitutional, saying that the law was not compatible with the sort of powers governments are able to give courts, which are part of the wider court hierarchy in Australia and have to be independent from other branches of government. Some of you may know this as the Kable doctrine, which preserves the institutional integrity of the courts of the States and Territories, preventing them from being used as a mere tool of the executive government.

Next, the NT Attorney-General appealed to the High Court. On 10 April 2014, the High Court handed down a 6:1 majority judgment giving the NT forfeiture laws their tick of approval.  The High Court said that the NT is constitutionally permitted to give its Supreme Court the power to declare a convicted offender a 'drug trafficker' with the consequent loss of all his property: it's not incompatible with the Supreme Court's constitutional role, and in bad news for Mr Emmerson, it was not an acquisition of property otherwise than on just terms. As some of you will know, that is one of the few rights enshrined in our Constitution: s 51(xxxi).

To a modern eye, the NT law may seem harsh, but the High Court majority seemed to almost relish setting out its finding that there is nothing unconstitutional about the State seizing a convicted crim's worldly goods.

In a 'back to the future' approach, the High Court noted that forfeiture laws of this kind have a long history in English law (which, of course, provides the blueprint for Australia's legal system). Up until 1870, a convicted felon in England routinely forfeited all his property. The Court said at para [16], 'Blackstone noted the severe deterrent effect of [old English] forfeiture as a punishment for serious crime because it affected posterity as well as the individual offender.' In other words, the kids weren't inheriting dad's land and titles if he committed a serious crime. The history buffs among you will enjoy the short tour through the history of criminal forfeiture law contained in the majority judgment.

From a Victorian perspective the case is interesting because the High Court did not find that the NT law required the NT Supreme Court to act at the behest of the NT DPP or to give effect to government policy without following ordinary judicial processes. In other words, there is no 'Kable' limitation on the ability of Australian State governments to enact such laws.  

If you are in the Victorian Government and would like advice on constitutional limitations regarding courts in State legislation, please contact

Sky Mykyta
sky.mykyta@vgso.vic.gov.au
8684 0220

Rachel Amamoo 
rachel.amamoo@vgso.vic.gov.au
8684 0899

Occupy Melbourne – lessons for decision makers

27 December 2013 update: the VGSO newsletter on this case is now online. Happy holiday reading!

Remember the 'Occupy Melbourne' protests?  The Federal Court recently handed down its decision in the 'Occupy Melbourne Case' – Muldoon v Melbourne City Council.  We note that the protestors have just lodged an appeal to the Full Federal Court, so watch this space...

In Muldoon, members of the 'Occupy Melbourne' protest failed in their constitutional challenge to the response by public authorities to their occupation of public gardens.  The decision is a win for equitable use of public space and reasonable regulation.  It also guides administrative decision makers seeking to protect their decisions from constitutional challenges based on free speech.

Facts

Muldoon arose from the 2011 occupation of public gardens in the City of Melbourne by a group of protestors called 'Occupy Melbourne' and the response by public authorities to those actions.

Two protestors challenged the exercise of enforcement powers by officers of the Melbourne City Council. The exercise of these enforcement powers prevented Occupy Melbourne from continuing its protest through constant occupation of public space.

The relevant enforcement powers were located in Melbourne City Council Activities Local Law 2009 and Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations 1994. 

The laws prohibited:

• a person camping, without a permit, in a public place in a tent or any type of temporary or provisional form of accommodation; and
• erecting signage in a public place, without a permit.

The Council issued a number of Notices to Comply to Occupy Melbourne for the removal of tents, temporary accommodation and signage from the gardens, and, with police assistance, removed tents and other accoutrements of the occupation.

Arguments

The Muldoon decision considered the constitutionality of both the enforcement provisions and the specific exercises of powers under those provisions, in light of the constitutional implied freedom of political communication.

The applicants also unsuccessfully argued that the Local Laws and Regulations were incompatible with their rights to freedom of expression or peaceful assembly or freedom of association under the Charter of Human Rights and Responsibilities Act 2006.

Reasons

In Australia, whether a law infringes the implied constitutional freedom of political communication depends on the answers to two questions.

• First, whether the law in its terms, operation or effect, burdens the freedom of communication about government or political matters?
• Secondly, if the law does burden the freedom of communication it will be invalid unless it is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

 

First limb - did the law burden the implied freedom of communication?

The applicants won the first limb, the Court finding that the Local Law and Regulations did burden the implied freedom of political communication.  This was because the tents and banners were symbols of the cause of the Occupy Movement, conveying a message about political matters.

The fact that the Local Laws and Regulations were found to burden the implied freedom is not a surprising result.  When applying the implied freedom courts almost always reach this outcome.  Indeed, this led Heydon J to observe in early 2012 that

[t]his common practice of concession or assumption that the first [implied freedom of communication] limb is met tends to generate an insidious belief that it will always be met.  

Lawmakers and decision-makers should therefore focus on the second stage of the required analysis: what is reasonable regulation?

 

Second limb - was the law reasonably appropriate and adapted to a legitimate end?

Justice North held that the Local Law and Regulations were valid as they were reasonably appropriate and adapted to the legitimate end of providing for the preservation, care, and maintenance of the gardens and for the equitable use of them.  His Honour found:

First, the extent to which the provisions restricted political communication was limited.  They prohibited camping in tents without a permit and bringing certain items into the gardens without a permit.  But the impugned provisions left open a wide range of other forms of political protest in the gardens.

Secondly, the extent of the restriction on political communication was not absolute.  Protesters could apply to the Council for a permit to camp in tents in the gardens or bring specific items into the gardens.  The ability for the Council to grant or refuse such a permit must be exercised in accordance with the purpose of the power, namely, to preserve the gardens and ensure accessibility to them (including taking account of rights of free expression). 

Thirdly, the applicants failed to demonstrate how the Council could have protected the gardens with any less restriction on the freedom of political communication.  In reaching this conclusion, North J rejected the argument that the Local Law and Regulations could be drafted to exclude political communication, as defining this concept was not practical.

Finally, North J rejected the argument that the Local Law enforcement procedure was immunised from judicial scrutiny due to the haste in which enforcement could occur.  His Honour noted that the courts were 'available every day and for 24 hours in each day, including during holiday periods and on public holidays'.

 

The intersection between constitutional law and administrative decision-making

The decision of North J in Muldoon demonstrates how the implied constitutional freedom of political communication affects administrative decision-making.  More specifically, the decision is important for at least three reasons.

First, it shows how non-verbal methods of communication can be protected by the implied freedom.

Secondly, it reinforces that even broad powers are limited by:

• the implied freedom; and
• the requirement that administrative powers be exercised for a proper purpose. (Note: the Charter imposes similar limits on seemingly broad powers).

Thirdly, it explains how administrative decisions can be protected from constitutional challenges based on free speech. Lawmakers and decision-makers need to ensure:

• that administrative decision-makers exercise powers in accordance with the proper purposes for which they were conferred; and
• that evidence exists in each case as to why an administrative power was exercised in a particular manner.

If you are in the Victorian Government and require advice on whether administrative decisions or laws are consistent with the implied freedom of political communication, you can attend our client seminar on Monday, 11 November 2013.  Details of the seminar can be found here. 

Alternatively you may wish to contact:

Sky Mykyta
Managing Principal Solicitor
t 8684 0220
sky.mykyta@vgso.vic.gov.au

Nicholas Tiverios
Solicitor
t 8684 0430
nicholas.tiverios@vgso.vic.gov.au

What to do when someone throws the Constitution at you

It can happen to any litigator.  Show up to court, ready to argue your (seemingly non-constitutional) case, only to be faced with a constitutional argument and the resultant scurrying around as the parties try to ascertain and meet the notice requirements under the Judiciary Act 1903 (Cth).

The procedure isn’t complicated, but it has been known to catch parties unaware.  This is because constitutional arguments can pop up in many types of litigation and often after proceedings have commenced.  This means that lawyers who would not otherwise practice in these areas may need to quickly get their head around the procedure and its rationale.

Here’s a quick how-to guide.

Section 78B of the Judiciary Act requires a notice to be sent to all nine Attorneys-General whenever any court proceeding ‘involves a matter arising under the Constitution or its interpretation’.  Don’t forget the Territories!  See our previous post on how to serve the Victorian Attorney-General.  The other jurisdictions have similar agreements with their government solicitors.

The court ‘cannot proceed’ until it is satisfied that this procedure has been followed.  However, s 78B(2)(c) enables a court to continue to hear evidence and argument on matters that are severable from the constitutional question.  And s 78B(5) provides that a court may proceed immediately to hear urgent interlocutory proceedings where the court thinks it necessary to do so. 

If the constitutional point is frivolous or unarguable, the Court can determine that s 78B does not apply.  The matter must ‘really and substantially’ involve a matter arising under the Constitution to invoke s 78B, meaning the argument has to relate to a live issue in the proceeding and has to have some merit.

The court does not need to wait for a response from all Attorneys-General before proceeding.  It is sufficient if steps have been taken that ‘could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General’.

The point of the s 78B procedure is to make sure that the Commonwealth and the various States and Territories have the opportunity to be heard before any court decision about the Constitution.  This is because their interests can be affected by decisions on constitutional law, particularly ones decided by the High Court.  When an Attorney-General intervenes, the courts also get the benefit of the legal skills of the various Solicitors-General (who generally represent their respective Attorneys-General in constitutional proceedings, at least in the High Court).

The obligation to issue notices applies in every court in Australia, from the High Court to the Magistrates Court.  VCAT does not have power to determine questions arising under the Constitution and thus the 78B question should not arise in that forum.

The courts have introduced Rules to regulate procedural issues arising from the giving of s 78B notices – see Part 5 of the High Court Rules, Division 8.2 of the Federal Court Rules, Order 19 of the Supreme, County and Magistrates Court Rules.  Note that in the federal courts, the party that raised the argument must prepare the notice, whereas the State Rules permit a court to order a different party prepare the notice.  Victorian courts have been known to order that the State party prepare a notice outlining a constitutional argument raised by another party, which can be very difficult if that party is unable to clearly enunciate that argument.

If you are in the Victorian Government and require advice on constitutional litigation, please contact:

Rachel Amamoo
Managing Principal Solicitor
t 8684 0899
rachel.amamoo@vgso.vic.gov.au

How to sue the government

As government lawyers, you may receive originating processes served on your department or agency.  One of the first questions you should ask is whether it identifies the correct State party.

This is not always as easy as it seems.  Here’s an overview of the basic rules.

Of course, if you are served with documents and you intend to engage our office, you should do so as soon as possible to ensure you meet the deadlines for filing response documents.

Civil and constitutional cases

Federal courts

In federal courts, the State must bring any suit in the name of the Attorney-General of Victoria or his appointee.  But in the rare situation that the State responds to an action in a federal court, the correct party would generally be the State of Victoria (as here).

To serve the State in a Federal or High Court proceeding, you should serve the Attorney-General or the VGSO (on his behalf).  Our service details are here.

State courts

To sue the Victorian government in a State court, the correct party is generally the State of Victoria.

This includes where the State of Victoria is vicariously liable for the torts of its servants or agents.  However, if the grievance is with a statutory corporation about a contract it has entered into or a tort of any of its servants or agents, the correct party is the relevant statutory corporation.

In all State courts, service of documents on the State of Victoria is via the VGSO.
We are also authorised to accept service on behalf of Ministers.

Judicial review (in the Supreme Court)

In judicial review proceedings (whether brought under Order 56 or the Administrative Law Act), the application for review or originating motion must be directed to:

• the relevant decision-maker (or its members); and
• any party interested in maintaining the decision.

For example, in this case, the Municipal Building Surveyor had issued notices asking a property owner to demonstrate why he was permitted under the Building Act to use some flats at Docklands as serviced apartments.  The property owner appealed the notices to the Building Appeals Board, who dismissed the Appeal.  The parties to the Supreme Court judicial review proceeding were:

• as plaintiff – the property owner;
• as first defendant – the Building Appeals Board (who took a Hardiman position, that is, took no active role in the proceeding);
• as second defendant – the person fulfilling the role of Municipal Building Surveyor who issued the notices; and
• as third defendant – the Council who appointed the Surveyor.

If the decision-maker is a judicial or public authority or the holder of public office, he or she should be described by the name of the authority or office.  For example, in this case, the defendant was correctly identified as the “Health Services Commissioner” (an office created by statute), rather than the name of the person who held the office at the time. 

What if the body that made the decision is not a legal entity?  For example, in this case, the respondent was the Appeals Costs Board – a statutory body comprised of a number of people appointed by the Attorney-General that was not a body corporate.  The Supreme Court said the proper respondents were the particular members of the Board who made the decisions sought to be reviewed.

Finally, it is important to identify the person or body who actually made the decision being challenged.  In this case, a prisoner sought (amongst other things) an injunction allowing him to send a letter to one of his victims.  He applied for an injunction against the Commissioner for Corrections.  But under the Corrections Act, it is the Governor of a prison that has the power to stop letters from prisoners, not the Commissioner.  The Court asked for the application to be brought against the correct defendant.

Merits review (in VCAT)

In a merits review proceeding, the parties are:

• the applicant;
• the decision-maker who made the decision;
• any person joined as a party to the proceeding by the Tribunal; and
• any other person specified by legislation as a party (for example, co-owners of land in an application to sell co-owned land).

As with judicial review, a decision-maker who is the holder of a public office or holds a position in the public service is to be described by their position.

Unlike judicial review, a person whose interests are affected by the decision does not have a right to party status.  The tribunal may decide not to join a party if their joinder would cause expense or delay.

Also unlike judicial review, the appropriate respondent may be an unincorporated body. For example, in freedom of information cases, unincorporated bodies can be considered the ‘agency’ that made the decision.

And finally, unlike judicial review, the decision-maker who made the decision may not take a Hardiman approach and must play an active role in the proceeding, helping the Tribunal understand the decision.

If you are in the Victorian government and have been served with court documents, please contact:

Stephen Lee
Assistant Victorian Government Solicitor
t 8684 0410
stephen.lee@vgso.vic.gov.au

When is it OK for a public servant to tweet political opinions?

Are you a public servant who uses social media to express political views?  A recent Federal Circuit Court decision involving a pseudonymous Twitter account has once again highlighted the importance for public servants to 'look before you leap' into social media and for Departments to provide clear guidance about political comments by public servants, whether on social media or in other public fora.

The decision

The decision is Banerji v Department of Immigration and it raises more questions than it answers.  Being a Federal Circuit Court decision, it is not binding on State courts or the State Government.  Furthermore, the Court was deciding an application for an injunction and the decision is not a final determination of the limits of a public servant's freedom to engage in social media.  However, the circumstances of a public servant tweeting critical comments about her employer are probably not unique to the federal sphere and it is likely that a Victorian court would consider the case if a similar issue arose with Victorian public servants.  It is therefore a timely reminder to revisit the difficult issue of what kind of online political discussions Victorian public servants may legitimately engage in.

Michaela Banerji works for the Department of Immigration.  She has a Twitter account under the pseudonym @LaLegale.  She used this account to criticise the immigration policies of the Federal Government, the conditions in detention centres and comments made on these issues by various Ministers and government employees.

Ms Banerji claimed the tweets were a ‘simple expression of political opinion, made in her own time away from work’.  The Department claimed that the tweets breached:

• her contract of employment;
• the Department’s Social Media Guidelines; and
• the Australian Public Service’s Code of Conduct.

Judge Neville declined to issue an injunction preventing Ms Banerji’s dismissal on the basis that the application for an injunction was premature, as the internal departmental processes had not yet been finalised. 

Twitter and the implied freedom of political communication

In doing so, his Honour made some brief comments about Ms Banerji's Twitter use, and whether the implied constitutional right of freedom of expression protects it, which set the Twittersphere alight and gave many a public servant pause for thought before pressing 'retweet'.

An implied right to freedom of political communication exists in our Constitution, limiting federal or State ‘laws’, be they exercises of legislative or executive power.  Free communication on matters of government and politics is necessary for the system of representative and responsible government established by s 7 and s 24 of the Constitution, the High Court unanimously reasoned in the 1997 case Lange.  The freedom is not absolute but if limitations are to be imposed on it, those limitations must be ‘reasonably appropriate and adapted’ to maintaining the system of government prescribed by the Constitution.

As his Honour was deciding whether to grant an injunction, Judge Neville did not need to consider whether dismissal of Ms Banerji would be reasonable.  His Honour simply found, without explanation, that the implied freedom did not provide ‘a license… to breach a contract of employment’.

This is an interesting finding. Entry into contracts is a textbook example of an exercise of executive power.  And the implied freedom of political communication can curtail executive power.  This is settled law, even though the only aspect of executive power that has been litigated for infringing the freedom is the exercise of delegated legislative power.

Perhaps some contracts lack a sufficient connection with a ‘law’ to fit within the Lange test.  But Commonwealth public servant employment contracts are so intertwined with Public Service Act 1999 that it is surely arguable that the disciplinary provisions within this Act must be interpreted in line with the freedom.  A discussion for a later judgment, perhaps?

In the meantime, there are only questions and a degree of angst about acceptable online behavior for public servants.  When is tweeting a political opinion OK?  Is there a difference between pseudonymous accounts and accounts that identify the public servant?  What if Ms Banerji had worked for the Department of Treasury while criticising the Department of Immigration?  Perhaps it was the way in which Ms Banerji expressed her tweets, which were described as 'sometimes mocking, sometimes critical'?  Would it have been OK if Ms Banerji had a sufficient disclaimer in her bio? If she was praising her Department rather than criticising? If she was simply re-tweeting the views of others?

How would Ms Banerji have fared if she were a Victorian public servant?

Victorian public servants are bound by the Code of Conduct for Victorian Public Sector Employees (No 1) 2007, the Public Service Standards Commissioner’s ‘Guidance for use of social media in the Victorian public sector’ and individual Departmental policies, such as the Department of Justice’s Social Media Policy.

Clause 2.2 of the Code requires public servants to ‘conduct themselves in an apolitical manner' and to avoid 'in the course of their work, any participation in activities which support a political party or independent candidates including attendance at fund raising or similar events’.  Whilst Ms Banerji was expressing political views, she claimed not to be doing so in the course of her employment - although it is interesting to note that Ms Banerji is a 'public affairs officer' responsible for communicating the Department's message.  Ms Banerji's tweets were not in support of a political party or candidate.

Clause 3.5 of the Code states: ‘When making a comment in a private capacity, public sector employees ensure their comments are not related to any government activity that they are involved in or connected with as a public sector employee and make it clear they are expressing their own view. They ensure personal comments do not compromise their capacity to perform their public sector role in an unbiased manner’.  Ms Banerji was tweeting on matters relating to government activity with which she was connected.  But did her views prevent her carrying out her role without bias?

The Department of Justice policy that public servants should not ‘make any comment or post any material that might otherwise cause damage to the department's reputation or bring it into disrepute’ is stated to apply only ‘[w]here your comments or profile can identify you as a public servant’. 

The issue of how much political discussion is too much for a public servant has always been a difficult one, with clues to the answer lying in the Constitution Act 1975, the Public Administration Act 2004, the Charter of Human Rights and Responsibilities Act 2006, the VPS Code of Conduct and Departmental policy.  The issue is not a new one, but social media has made it more visible.

While the answers remain elusive, Victorian public servants engaging in online or offline political discussion would be wise to read and regularly re-read the VPS Code of Conduct and their Department's policies and to 'think before you tweet'.  Victorian departments and agencies should also regularly review their social media and other policies to check whether they are providing useful and specific guidance on how their employees may participate in political discussions in their private lives.

For advice on social media use by Government and public servants, please poke:

Katie Miller
Principal Solicitor
t  8684 0460 
katie.miller@vgso.vic.gov.au