A question of time: calculating statutory time limits

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

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

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

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

The laws on statutory time limits

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

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

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

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

The facts

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

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

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

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

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

The Court reasoned as follows:

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

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

Key takeaways

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

For further information, please contact:

Annette Jones
Principal Solicitor
8684 0431

Lisette Stevens
Solicitor
8684 0475

Functus 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? 

Options for reconsideration of decisions

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:

• Where a decision is affected by 'jurisdictional error', it can, in many cases, be treated as no decision at all and revoked and remade (following the High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [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.

• Where the relevant legislation sets out a formal process for internally reviewing decisions (see, for example: Building Act 1993 (Vic), Pt 11, Div 4, sub-div 2), a decision can be reconsidered in accordance with the prescribed process.

• Where a decision is not affected by jurisdictional error and no internal review process is prescribed, 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.

Indeed, this third scenario has recently been considered by the Full Court of the Federal Court in Minister for Indigenous Affairs v MJD Foundation Ltd (MJD).[2]

Background

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: functus officio).  The operation of this doctrine can prevent a decision-maker from exercising a statutory power in respect of more than one person or circumstance.

Legislation now seeks to avoid the inconvenient consequences of the operation of this doctrine, in provisions such as s 40 of the Interpretation of Legislation Act 1984 (Vic) (ILA) and s 33(1) of the Acts Interpretation Act 1901 (Cth) (AIA), which provide that statutory powers may be exercised 'from time to time'.  The operation of these provisions is considered further below.

The Full Court's decision in MJD

MJD concerned the Minister's power under s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) 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. 

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). 

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).

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. 

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 different individuals and circumstances.[5]

Victorian context

The leading Victorian authority on this issue is the Court of Appeal's, now 13-year-old, decision in Kabourakis v Medical Practitioners Board of Victoria (Kabourakis),[6] which was cited with approval in MJD.

Kabourakis 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. 

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 Bhardwaj).  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] 

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]

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]

Determining whether internal review can be conducted

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.

Relevant factors may include:

• whether the decision in question is of a character usually understood as being irrevocable;

• whether the power in question must be exercised upon satisfaction of certain criteria; 

• whether the decision affects a person's rights;

• whether the decision triggers certain other obligations under the statutory scheme; and

• whether the statutory scheme provides for a decision concerning rights following on some process of formal determination.

Further information

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.

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0277

Leveasque Peterson
Assistant Victorian Government Solicitor
8684 0462

This blog was written by Maya Narayan, Senior Solicitor, and Jack Maxwell, Solicitor.

___________________________

[1] (2002) 209 CLR 597.
[2] (2017) 250 FCR 31.
[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].
[4] MJD, [100] (Mortimer J).
[5] MJD, [254] (Mortimer J).
[6] (2006) 25 VAR 449.
[7] Kabourakis, [4] (Warren CJ), [6] (Chernov JA), [43]-[46] (Nettle JA).
[8] Kabourakis, [6] (Chernov JA), [83] (Nettle JA).
[9] Kabourakis, [48] (Nettle JA).

[10] Kabourakis, [83] (Nettle JA).

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

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

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

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

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

1. Shorter time frames for processing FOI requests

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

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

2. New Office of the Victorian Information Commissioner

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

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

3. Power to review decisions of principal officers and Ministers 

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

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

4. Power to review decisions refusing access to Cabinet documents 

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

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

5. Increased powers in relation to searches for documents

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

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

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

6. New coercive and investigative powers

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

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

7. Documents that may prejudice an IBAC investigation

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

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

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

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

9. Professional standards for decision makers

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

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

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

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

For further information on FOI matters contact:

Joanne Kummrow 
8684 0462

Andrew Field 
8684 0889

Michele Rowland
8684 0413

Kay Chan
8684 4020

Shining a light on innovation…

Everyone is talking about innovation - the Commonwealth Government wants us to be an 'innovation nation' and entrepreneurs like Elon Musk and Steve Jobs are the rock stars of our era.  Innovation is often associated with technology, investment banking and start ups.  Like all stereotypes, it tells only part of the story.  Some of the most interesting innovation is happening in our backyard - the Victorian public sector.

In addition to encouraging innovation in the private sector, the Victorian Government is encouraging the public sector to consider how we can perform our functions and deliver public services better. What is better depends on what you are trying to achieve - it might mean 'better', in the sense that a citizen gets the public service they need more quickly and easily; it might mean 'better', in the sense of more efficient use of public money; or maybe it means 'better' in the sense of a new function being performed that was previously thought to be impossible or outside of the capacity of the public sector.

The Victorian Government is supporting the public sector to act on their innovative ideas through:

• The Public Sector Innovation Fund provides funding support for pilot projects that test or prove new knowledge, technologies, processes or practices to deliver public value and that can be scaled or replicated across government.  Grants of $50,000 to $400,000 are available.
• At the Australian Information Industry Association iAwards, the Premier will award the inaugural iAward for Public Sector Innovation.The winner will be revealed on 1 September 2016.

Examples of projects already funded by the Public Sector Innovation Fund include:

• Code for Victoria Challenge, in which three teams of Code for Australia Fellows will be placed within government departments for six months . The Fellows will create new tools or streamline processes that will make government information more open and accessible online, and improve the delivery of government services.   The first round of the Code for Victoria Innovation Challenge recipients have just been announced this week. 
• The 2016 Budget Hack brought together the public sector, the tech community and industry leaders to find new and better ways to visualise, use and leverage data from the State Budget.  The winning entry, Bling My Suburbs, allows users to search budget information by suburb.  The other entries in the top three included Budget Pie, which allows a user to see how much funding was allocated to the issues affecting them (I.e. How much of the pie do my issues get?!), and Ask Budget, which uses a word cloud to identify how frequently an issue was mentioned and then summarises the mentions.

Many of the innovations are not complicated and nor did they require a Steve Jobs to think of them. Many of the examples of public sector innovation start with an idea or feedback from a citizen.  For example:

• Service Victoria is creating a 'one stop shop' for citizens looking for government information.  I tried it out on my sister, who is moving house this weekend. Through some simple questions asked of the website over dinner, my sister found the right places to change her driver's licence, find out who her new council and MPs are, when her hard rubbish collection is and how much her rates will be.  Service Victoria received additional funding in the recent State Budget, which will enable them to implement its objective of digitising more government transactions. 
• EPA AirWatch provides visual information on air quality on an hourly basis.  Using a Google map, the user can see the status of air quality at a monitoring station (Very Good, Good, Poor, etc) and then see a more detailed break down of the readings, including a health category.
• The online family violence intervention application form [] allows people to apply for intervention orders online, rather than by submitting a paper form.  The online format allows high risk cases to be flagged and brought to the attention of a magistrate earlier.  The form has been piloted at the Neighbourhood Justice Centre and, with a grant from the Public Sector Innovation Fund, will now be rolled out to the Magistrates' Court.

Innovation is also happening in government legal services.

• Government departments are exploring ways in which government can benefit from 'the new legal paradigm', in which technology and new business models are reducing legal costs and communication styles are changing.  Some departments have started the conversation with panel law firms.
• VGSO has appointed its first Innovation Counsel who has challenged and evangelised our lawyers to explore with government agencies how legal services can be delivered in ways that better meet the needs of government.

Everyone is talking innovation - and the Victorian public sector is doing innovation.  How is your agency innovating?  What do you think the public sector could do differently or better?  Tell us your thoughts in the comments.

To find out more please contact:

Katie Miller
Innovation Counsel

Andrew Suddick
General Counsel

Joanne Kummrow
Special Counsel

Thank you for not smoking

Think you have a right to smoke? Turns out you don't - or at least, not if you're on the premises of Thomas Embling Hospital, where a decision to implement a complete smoking ban was recently upheld by the Supreme Court in De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111.

The plaintiff's case 

Thomas Embling Hospital is a forensic psychiatric hospital whose patients include persons found unfit to plead or not guilty of a crime by reason of mental impairment. The plaintiff was found not guilty of the murder of his mother by reason of insanity in 1989, and has been an involuntary patient of the Hospital since the year 2000.

The plaintiff sought to challenge the Hospital's decision to implement a smoking ban on its grounds by arguing, amongst other things, that the Hospital had breached section 38 of the Charter of Human Rights and Responsibilities Act 2006. That section requires public authorities to act compatibly with human rights, and to give proper consideration to relevant human rights when making decisions. The Attorney-General, represented by the VGSO, intervened to make submissions on the application of the Charter.

The plaintiff argued that the smoking ban affected the right of all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person (s 22(1) of the Charter), the right of an accused person or a person detained without charge to be treated in a way that is appropriate for a person who has not been convicted (s 22(3)), and the right not to be subjected to medical treatment without consent (s 10(c)). He also raised the property right (s 20), as he was concerned that the Hospital proposed to confiscate his smoking paraphernalia.

The decision

The Hospital and the Attorney-General argued that none of the rights identified by the plaintiff were engaged by the smoking ban. Justice Riordan agreed, finding that the ban was a comprehensive, properly considered policy adopted after extensive consultation with patients, and although it was likely to cause some distress to the plaintiff, its purpose was to protect patients, staff and visitors from the harmful effects of smoking.  It did not interfere with the plaintiff's dignity or humanity, and further, it did not constitute 'medical treatment' as it did not involve any direct interference with the body or state of mind of an individual.

His Honour found that the plaintiff was neither 'accused' nor 'a person detained without charge' for the purposes of the right in s 22(3), and even if he were, the smoking ban did not constitute inappropriate treatment for an unconvicted person. Finally, his Honour held that the right to property was not engaged because there was no evidence that Mr de Bruyn would be permanently deprived of his smoking paraphernalia. The plaintiff's application was dismissed.

What is 'proper consideration'?

Justice Riordan's decision includes a helpful summary of what it means to give 'proper consideration' to relevant human rights. Key things for decision-makers to remember are:

• You must seriously turn your mind to the possible impact of a decision on a person's human rights.
• If the decision may limit rights, you must identify the countervailing interests or obligations that would justify the limit.
• It's not enough to provide a 'pro forma' explanation of the impact on Charter rights - giving human rights proper consideration is more than just a box-ticking exercise.
• On the other hand, you don't need to identify the 'correct' right or specific Charter provision, or explain the content of a right by reference to legal principles or jurisprudence. You only need to identify in general terms the nature and extent of the effect on the person's rights.
• After identifying the actual rights affected, you must balance the competing private and public interests to determine if any limit is justifiable. There is no formula for this exercise - it will depend on the circumstances. Justice Riordan reiterated earlier judicial statements that this process should not be scrutinised overzealously by the courts.

Consider the evidence

The Hospital's evidence in this matter, which included evidence that the Hospital had consulted extensively with patients and sought specific legal advice on Charter issues, is a great example of a public authority being able to show genuine attention being given to Charter rights.

Of course, this level of evidence won't always be necessary, particularly for day-to-day decisions with only minor rights impacts. However, if you're making a decision that will affect human rights, it's helpful to think about how you might demonstrate that you've given those rights proper consideration in case it later becomes an issue. Depending on the nature of the decision, you may find that a quick file note, a chat with the affected person could save a lot of trouble down the track. For more significant interferences with rights, you may wish to consider preparing a formal rights impact assessment, or even seeking legal advice to ensure that your decision is compatible with your obligations under the Charter.


If you work in the Victorian public service and require further information on this case or advice on your human rights obligations, please contact:

Eleanor Thomas

Senior Solicitor

8684 0425      

Catherine Roberts

Managing Principal Solicitor

8684 0247

Key features of the Corrections Legislation Amendment Bill 2015

This week the Corrections Legislation Amendment Bill 2015 (Bill), was passed by the Victorian Parliament.
On its commencement, the new act will mean Victoria's parolees will be subject to cancellation of parole should they receive an interstate or overseas prison sentence whilst on parole. The Adult Parole Board's power to compel production of documents or attendance of witnesses is codified and procedural changes to the Board are made, while the power of prison Governors to monitor prisoners electronically is made explicit. Victoria Police will have an additional 12 months to commence proceedings against a parolee for breach of parole conditions under amendments to the Corrections Act 1986 (Corrections Act).

The Bill also amend the Corrections Act to codify the powers of prison Governors, the Adult Parole Board and Victoria Police.

Interstate Prison Sentences against Parolees

Following the decision of the Supreme Court of Victoria in Mercorella v The Secretary to the Department of Justice [2015] VSC 18, the Bill clarifies that parolees may have their parole cancelled if a court in or outside of Victoria imposes a term of imprisonment for offences committed either before or during the parole period.

Adult Parole Board's power to compel evidence

The Bill clarifies the Board's power to compel persons to produce specified documents or attend meetings of the Board to give evidence.  Where a notice to attend is issued to a person in custody, the Board will be able to direct the Governor of the prison to facilitate the attendance of the prisoner, either in person or by video link.
In relation to taking evidence, the Bill confirms the Board is not a court and is not bound by the rules of evidence.  However, the Board may require a person who attends under a notice to attend, to give evidence on oath or affirmation.
In the absence of a reasonable excuse, it is an offence for a person to fail to comply with a notice to produce or notice to attend, potentially attracting a term of imprisonment or fine.

Electronic monitoring of prisoners in prisons

Under the Bill, a new provision is inserted in the Corrections Act to explicitly permit a Governor of a prison to order electronic monitoring of a prisoner.  Examples of possible uses given in the second reading speech are to monitor the movements of selected prisoners within certain areas, to keep certain prisoners separated, or to assist in a medical response if the monitor indicates that a prisoner has stopped moving.
The current s 23, which gives a prison officer general powers to give an order to a prisoner for the security or good order of the prison or the safety or welfare of the prisoner or other persons, is not affected by the new provision.

Time frame for commencing proceedings for breach of parole conditions

Currently, a parolee commits an offence if he or she breaches the conditions of their  parole.  Under the Corrections Act, Victoria Police must commence proceedings against a parolee for breaching his or her parole conditions within 12 months of the date of commission of the alleged offence.
To prevent the time limit of 12 months resulting in some breach proceedings being statute barred because a breach of parole conditions may not be readily apparent before the 12 months elapses, the time limit is extended to 2 years.  This will allow for a criminal investigation to evolve over time, and for  Victoria Police to await the outcome of court proceedings related to other offences.
Among other changes, the Bill will also permit the Secretary to the Department of Justice and Regulation to authorise departmental officers to perform the roles of a community corrections officer, regional manager and secretary to the Board.

Brendan McIntyre
Principal Solicitor
9947 1435


Elizabeth Wortley
Senior Solicitor
9947 1433


Debra Coombs
Principal Solicitor

Regulators and decision-makers, it's a dog's life

The recent High Court decision in Isbester v Knox City Council [2015] HCA 20 reinforces to regulators that their staff cannot act as jury, judge and executioner, and they must apply the principles of natural justice to each decision, acting without any perception of bias.

On 10 June 2015, the High Court in essence held that the same staff within a regulator cannot be involved in the prosecution of a criminal charge then sit on a review panel for a related matter, even if not acting as the final decision-maker, due to the perception of bias.

Facts of case

Ms Hughes was a Council employee who, as an authorised officer, charged Ms Isbester with an offence under s 29 of the Domestic Animals Act 1994 (Vic) relating to an attack by her dog.

Later, Ms Hughes sat as a member of a three-person panel which deliberated and recommended to the chairperson of that panel, who was the ultimate decision maker, that he make an order to destroy the dog under s 84P(e) of the same Act.

The High Court considered the question of whether there was a possibility that Ms Hughes could have prejudged the decision to destroy the dog after her involvement in the prosecution of the charges against Ms Isbester, and whether that could give rise to an apprehension of a conflict of interest.

Principles of bias

The well-known principle governing cases of possible bias was said in Ebner[1] to require two steps:

1.         An interest which might lead a decision-maker to decide a case other than on its legal and factual merits.

2.           A logical connection between that interest and the feared deviation from the course of deciding the case on its merits.

Ms Isbester had alleged that:

(a)          Ms Hughes had such an 'interest' as a person bringing charges, whether as a prosecutor or other accuser, in the outcome of the hearing of those charges; and

(b)          This interest would conflict with the objectivity required of Ms Hughes as a member of another decision‑making body deciding the consequential matter of whether to destroy the dog.

Joint judgment

In their joint judgment, the Honourable Justices Kiefel, Bell, Keane and Nettle held at [42] that:

It is not realistic to view Ms Hughes' interest in the matter as coming to an end when the proceedings in the Magistrates' Court were completed.  A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates' Court proceedings from her actions as a member of the Panel.  It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter.

Of course, the "final outcome of the matter" was the decision of whether to destroy the dog.

Their Honours held at [43] that:

Having participated in obtaining the conviction for the offence under s 29(4), [Ms Hughes] organised the Panel hearing and drafted the letter advising [Ms Isbester] of it.  She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog.  If Ms Hughes could not actually be described as a prosecutor with respect to the decision under s 84P(e), she was certainly the moving force.

A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s 84P(e).

Their Honours confirmed that this was the case even though the primary judge had found that Ms Hughes had acted nothing other than diligently, and in accordance with her duties, or that she was in fact wholly impartial.  They said that "natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed."

So, the decision to destroy the dog was set aside.  As they say, every dog has it's day...

Victorian Government clients seeking advice on investigations and the prosecution of criminal charges, can contact:

Jennifer Butler

Principal Solicitor

8684 0423

Greg Elms

Managing Principal Solicitor

8684 0414

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[1] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337