VCAT confirms scope of data security obligations when serving documents

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

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

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

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

Contact us: 

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

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

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

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

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

Charter review handed down today!

The 2015 Review of the Victorian Charter of Human Rights and Responsibilities was handed down today.

The Charter Review 2015 is titled 'From Commitment to Culture' and looks at ways to make the Charter more accessible, effective, and practical.

The Review contains a number of recommendations that may herald an exciting new era for the Charter, including:

• a separate cause of action (minus damages) to VCAT
• dispute resolution procedures via the Victorian Equal Opportunity and Human Rights Commission, and
• a range of other initiatives and amendments.

We look forward to the Government's response to the Review.

For more information about the Charter Review 2015, or the Charter and its application to Victorian Government clients, please contact:

Catherine Roberts
Managing Principal Solicitor
03 8684 0427

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.
--------------------------------------------

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

Sporting chance for all - Equality for transgender people in sport and work

The recent media coverage of a high profile rugby union player reporting the use of derogatory slurs on-field highlights the issue of discrimination in sport.  This incident is timely as, in January, the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) released a new guideline titled Transgender People and Sport.  This follows the release of the previous guideline, Transgender People at Work (updated in July 2014).

The Equal Opportunity Act 2010 (EO Act) protects transgender and intersex people from discrimination on the basis of their gender identity in a number of areas of public life.  In addition to sport and work, these include education, provision of goods and services, accommodation and clubs.

New guidelines

The two guidelines outline legal obligations under the EO Act in relation to sport and work, as well as practical information about gender identity issues, including lists of useful terms, case studies and decision-making steps.  While not legally binding, a court or tribunal may consider whether the guidelines have been complied with when hearing a discrimination complaint.

Discrimination on the basis of gender identity

The EO Act protects transgender and intersex people from both direct and indirect discrimination on the basis of their gender identity (ss 6(d) and 7).  Direct discrimination occurs when a person is treated, or proposed to be treated, unfavourably because of their gender identity (s 8(1)).  Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed, or proposed to be imposed, which has, or is likely to have, the effect of disadvantaging a person with a particular gender identity (s 9(1)).

It is also unlawful to ask a person to specify their gender identity where there is no legitimate, non-discriminatory reason for needing this information (s 107).

'Gender identity' is defined in s 4 of the EO Act as the identification by a person of one sex (or of indeterminate sex) as a member of another sex on a genuine basis.  This identification could be by:

• assuming characteristics of the other sex, whether by medical intervention, style of dressing or otherwise; or
• by the person living, or seeking to live, as a member of the other sex. 

The rights of transgender and intersex people are also protected under the Charter of Human Rights and Responsibilities Act 2006.

Transgender people and sport

This guideline is aimed at sporting organisations, clubs and staff.  It will also be useful for schools and universities.  The guideline explains that it is unlawful to discriminate against a person on the basis of their gender identity by failing to select them or excluding them from participating in sporting teams and activities, unless a relevant exception applies (s 71).  It also explains that it is against the law to discriminate against a person on the basis of their gender identity in club membership, including sporting clubs (ss 64 and 65), although it may be lawful for clubs to limit membership to a particular sex (s 68).

Transgender people at work

This guideline is aimed at all employers, and is relevant to all government departments and public entities.  VEOHRC has also produced resources for developing a transition plan for transgender employees as well as a policy template.  These documents will be useful for human resources professionals and anyone with responsibility for interviewing or recruiting new employees.

The guideline explains that it is unlawful to discriminate against job applicants and employees because they are transgender (ss 16 and 18).  The only exception is if there is a 'genuine occupational requirement' for employees to be of a particular sex (s 26).

If you are in the Victorian Government and would like further information about your responsibilities under the Equal Opportunity Act 2010, please contact:

Catherine Roberts
Managing Principal Solicitor
8684 0247
catherine.roberts@vgso.vic.gov.au

David Catanese
Principal Solicitor
9032 3040
david.catanese@vgso.vic.gov.au

Sweet child o’ mine

Birth registration is important. It is the first step in the process of formal recognition of an individual by the state. But for some in the community, the process of registering a birth is difficult (and not just because filling out a three page form is tough for anyone on two hours sleep per night).

Whilst getting bubs to sleep is beyond the State Government’s control, it recently asked the Victorian Law Reform Commission to look into the process for birth registration.

The Commission heard from different sections of the community about their experiences of obtaining a birth certificate, including some adults whose birth was never registered. It examined whether the current process makes getting a certificate difficult, particularly for already marginalised groups.

The Commission handed down its report in November.

The report identified reasons for failing to register a birth or apply for a certificate, including:

• a lack of awareness of the requirement to register;
• a poor understanding of the importance of registration;
• the cost of obtaining a birth certificate; and
• other issues such as mental illness or family violence concerns.

In short, disadvantaged background is a common theme for late registration or non-registration of a birth.

The Commission made 26 recommendations, 23 of which relate to changes in procedure at the Births Deaths and Marriages Registry.

The recommendations include:

• Changing the way in which the particulars of birth notification are collected and how, and by whom, a birth can be registered.
• Changing procedure where family violence may be a barrier to the registration of a birth.
• Better facilitation of the birth registration process and access to birth certificates for cross-border Indigenous communities.
• Streamlining birth registration with applications for services by the Commonwealth.
• Broadening who may certify identity documents as well as the type of proof of identity documents the Registrar will accept to support an application.
• Clarifying the fee exemption policy.

Whilst the recommendations relate to the birth registration and birth certificate application process, the report is useful reading for any government officer designing a policy that balances the need for consistency (or certainty of public records) with the flexibility to ensure that a program can actually work across diverse groups in society.

Flexibility is a fundamental aspect of good government decision-making. Where there is discretion in a decision-making process, there should be a policy to ensure decisions are made consistently and fairly. But that policy must be sufficiently flexible to cover a range of circumstances. This report by the VLRC provides a good concrete example of how an agency can tailor its policies and guidelines to achieve flexibility without compromising on certainty or consistency in program implementation.

For more information about this report, designing flexible decision-making policies or working Gunners references into your professional writing, please contact:

Elsie Loh
Principal Solicitor
t 8684 0144 
elsie.loh@vgso.vic.gov.au

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