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

Language matters in the transition to new legislation

The importance of clear and well-drafted transitional provisions was illustrated in the case of Director of Public Prosecutions (DPP) v Lyons (a pseudonym) [2018] VSCA 247 (Lyons).

Key points:

• Despite some unclear and inconsistent language in the 2018 Act's transitional provisions, the Court focused on the "irresistibly clear" language in Clause 5(2) of Schedule 4 to the 2018 Act and concluded that the application for a renewal of a detention order was to be heard and determined using the 2018 Act.
• Use clear language when drafting transitional provisions and ensure consistency of word use within clauses! When words can be given a ‘plain meaning’ this interpretation will be followed.
• A clause will only have a deeming effect if clear and express words are used (e.g. "is deemed to be").
• When using the Charter to interpret a statutory provision, the Court still looks first to the ‘plain meaning’ or the clear language of the statute.

Background

In Victoria, serious sex offenders and serious violent offenders that present an unacceptable risk to the community can be subject to ongoing supervision or detention after they have served their prison sentence. This post sentence scheme is contained in the Serious Offenders Act 2018 (2018 Act), which replaced the Serious Sex Offenders (Detention and Supervision) Act 2009 (2009 Act).

In Lyons, the Department of Public Prosecutions (DPP) sought to renew a detention order against Mr Lyons. The application was made under the 2009 Act; however, before the matter could be heard the 2009 Act was repealed and the 2018 Act commenced.

Which Act should the Court use to make its decision?

If the 2009 Act applied, only Mr Lyons’ risk of sexual re-offending could be considered by the Court. If the 2018 Act applied, the Court could consider Mr Lyons’ risk of sexual re-offending, violent re-offending, or both.

Clause 5(2) of Schedule 4 to the 2018 Act [Applications commenced under superseded Act that have not been determined] contains the transitional provisions and is as follows:

(1) Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day—  (a) an application for a supervision order, a detention order or an interim order;  (b) an application for the renewal or extension of an order referred to in paragraph (a);    (c) an application for the review of an order or a condition of an order referred to in paragraph (a).  (2) An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act. [our emphasis added]

The Court of Appeal considered the proper interpretation of the words ‘made under this Act’. The parties' positions were as follows:

• The DPP submitted that the application should be determined using the 2009 Act (meaning the Court could only consider Mr Lyons’ risk of sexual re-offending) but that the order should be ‘made’ following the form of the 2018 Act. The DPP relied on the text of clause 5(1).
• The Secretary to the Department of Justice and Community Safety submitted an order for Mr Lyons should be made and determined using the 2018 Act, meaning the Court could consider Mr Lyons’ risk of sexual or violent re-offending, or both.

The Court of Appeal's Judgment - key aspects of the decision

The Court focused on the "irresistibly clear" language in clause 5(2), namely ‘made under this Act’. The Court considered that these words clearly meant the application for a detention order against Mr Lyons was to be heard and determined using the 2018 Act. The Court also considered that this construction is consistent with the primary purpose of the 2018 Act which is to provide, from the commencement of the 2018 Act, for enhanced protection of the community.

The Court noted that its interpretation does not render clause 5(1) redundant because it operates to ensure that neither the DPP nor the Secretary need to bring fresh applications upon the commencement of the 2018 Act and repeal of the 2009 Act. Clause 5(1) also requires that any question concerning the adequacy of procedural steps taken before 3 September (the commencement date of the 2018 Act) is to be determined in accordance with the 2009 Act.

Some other points made by the Court of Appeal

Deeming provision: If clause 5(2) was a deeming provision, any order made under the 2009 Act would be 'deemed' to be an order made under the 2018 Act. The Court determined that clause 5(2) was not a deeming provision as it lacked the clear and express wording required of a deeming provision (for example, in Spear v Hallenstein 1  - the specific words 'is deemed to be' were used).

The Charter of Human Rights and Responsibilities: The Charter requires that, where possible, laws should be interpreted in a way that is compatible with human rights. If the 2018 Act applied, Mr Lyons' human rights would be detrimentally impacted because there would be an interference with Mr Lyons' liberty, freedom of movement and privacy on broader grounds than were previously available under the 2009 Act. However, the Court considered that there was no room for the Charter here because the 2018 Act's words were so clear. Also, the Statement of Compatibility (which records the Act's compatibility with human rights) did not refer to the transitional provisions. The Court held that the Minister's silence on a particular topic cannot be used to draw an inference as to the statute's proper interpretation nor can it be used as a substitute for an objective reading of the words in dispute.

Inconvenience caused? The Court acknowledged that inconvenience would result from the 2018 Act being used to determine the application for Mr Lyons (and for other matters). However, the Court found that some inconvenience is unavoidable when transitioning to new laws.

To find out more contact:

Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Rita Scammell, winter clerk, July 2019.


______
1 Spear v Hallenstein [2018] VSC 169.

Let’s get this show on the road!

Often, our clients' projects require the temporary or permanent use and occupation of land to construct improvements, or to support nearby construction.

If some or all of that land is a road at law, it can only be used for the project if it is temporarily closed, which is not always possible, or discontinued.  The danger of not properly discontinuing the land's status as a road is that the use or occupation of the land may amount to public nuisance, with legal consequences. 

What is a road?

In Victoria, a road includes any area of land that is a highway at common law.  More specifically, a highway is an area of land, at soil level or in stratum, over which the public may pass on or over at all times.

It is not necessary that land is physically a road for it to be a highway at common law.  The land may be suitable only for pedestrian access or for use by bicycles or horse-riders, rather than cars or other vehicles.  Even where land is only capable of passage by ferry, the ferry route itself may be a highway.  As long as the land meets the legal requirements, it will be a highway, and therefore a road.

Roads also include areas of land (at soil level or in strata) regulated under statutes, such as the Road Management Act 2004 (RM Act).  Under the RM Act, roads are generally categorised as freeways, arterial roads, non-arterial State roads and municipal roads.

Who owns roads?

If you wish to temporarily or permanently access or occupy land which has the status of a road, you will probably need to negotiate with the land owner on the scope of the required rights and changes to the road's status.

As a general principle, the Crown owns land over which there is a freeway or arterial road, regardless of whether the road is at surface level or in stratum, as well as certain land declared as road under general legislation governing Crown land.  Otherwise, roads are generally owned by the municipal council of the municipal district in which the road is located.

Acquiring and dealing with land which is a road

If land is a road, it is generally not possible to exclusively access or occupy the land unless its status as a road is temporarily paused (where this option is available under legislation) or permanently discontinued.  First, it is necessary to identify the relevant legislative power to temporarily close or discontinue the road, and then to do so in accordance with the power.  

These powers exist in a wide range of statutes, such as the RM Act in relation to roads generally, and  the Project Development and Construction Management Act 1994 and the Major Transport Projects Facilitation Act 2009 in relation to roads over land which is required for a particular project.

A number of formalities may be required before a road can be discontinued, for example:

• bringing the land within a declared project area;

• public notification and/or consultation;

• obtaining the consent of other parts of Government; and 

• amending a planning scheme.

Depending on the applicable legislative power and exemptions, discontinuation of a road can be achieved in as little as 28 days or take as long as 18 months.  

Once the road has been formally discontinued in accordance with the relevant power, the owner of the land can deal with that land as it pleases.  As a general rule, where roads on Crown land are discontinued, the underlying land normally returns to unreserved Crown land status.

Need some help?

Victoria's roads are governed by a complex legal framework.  Our Property Team has expertise in advising Government clients on a broad range of issues that arise when accessing and acquiring rights to land comprising a road.

For further advice, please contact: 

Anthony Leggiero

Managing Principal Solicitor

03 9947 1430

Margaret Marotti

Managing Principal Solicitor

03 9947 1410

Eloise Connelly

Principal Solicitor

03 9947 1493

Elizabeth Wortley

Senior Solicitor

03 9947 1433

Legislative instruments — Are yours in tune?

No inconvenience in government administration can, in my opinion, be allowed to displace adherence to the principle that a citizen should not be bound by a law the terms of which he has no means of knowing.

Chief Justice Barwick, Watson v Lee  (1979) 

Most of us know the maxim 'ignorance of the law is no excuse'.  But how can a citizen be expected to know about, let alone comply with, a law that has not been published?
Since 1 July 2011, new rules under the Subordinate Legislation Act 1994 (SLA) govern the preparation, making, publication and review of 'legislative instruments'.

The consequences of failing to comply with the SLA's requirements could be serious, including possible invalidity or disallowance of an instrument.  In this blog, we

• explain what is, and what is not, a 'legislative instrument';
• outline what the new laws say agencies must do; and
• give practical tips on things agencies should do to achieve best practice.

What is a legislative instrument?

To comply with the new laws, you first need to determine whether a particular instrument is legislative or administrative.   Put simply, any instrument that has a legislative character is a 'legislative instrument', unless otherwise designated or exempted  by the SLA (e.g. statutory rules and planning schemes) or other legislation.

Case law has developed principles for determining whether an instrument has a 'legislative character' by examining what the instrument does.  Under these principles, the distinction between legislative and administrative actions '…  is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases'.

A number of factors must be taken into account, such as whether the instrument alters pre-existing law, creates or changes legal rights and obligations, is mandatory or has general application.[1]   Usually, these principles are easy to apply — but not always.  In cases of doubt, given the potential consequences, it may be wise to seek legal advice.

In many cases, an instrument is specifically characterised as legislative or administrative by:

• the Subordinate Legislation Act 1994 [2]; 
• the Act under which the instrument is made; or
• the Subordinate Legislation (Legislative Instruments) Regulations 2011.

What does the SLA require?

The SLA imposes a number of requirements on agencies that make or administer legislative instruments, including those outlined below.

Preparation 

Agencies must

• consult other agencies and stakeholders during preparation, unless exempt;
• prepare a regulatory impact statement (RIS) if the instrument would impose an appreciable economic or social burden, unless exempt;
• conduct a human rights assessment of every proposed legislative instrument, identifying and justifying any limitation of the rights set out in the Charter of Human Rights and Responsibilities [3];  and
• prepare certificates of compliance with or exemption from these requirements.

Making 

Agencies must

• arrange tabling in Parliament of all new legislative instruments, unless exempt; and
• provide copies of all new legislative instruments and associated certificates (unless exempt) to Parliament's Scrutiny of Acts and Regulations Committee (SARC), which can recommend disallowance.

Publication

Agencies must

• publish all new legislative instruments in the Government Gazette, either in its next General edition, or in a Special edition within 10 working days (this often supersedes less onerous requirements in the authorising Act [4]); and
• prepare up to date consolidations of amended instruments, unless exempt; and
• publish copies of instruments in force, including any consolidations, on the internet and also make them available for public inspection in hard copy.

Legislative instruments exempt from RIS and tabling must still be gazetted.[5]

Good practice tips

There are a number of things not required by the SLA but which agencies should do as a matter of good practice to make the law more accessible and easier to understand for members of the public. They will also make administration easier.

In particular, it is good practice for agencies

• to draft using the standards and format for statutory rules, and to use plain English;
• to remake an instrument rather than make extensive amendments to it;
• to have a second person check the draft before an instrument is made — the criteria set out in the SLA at s. 13 (for proposed statutory rules) and at s. 25A (which SARC applies in reviewing instruments) provide useful checklists; and
• to retain revoked instruments and superseded consolidations on websites, so that members of the public can find what the law was at any point in time.

Getting In Tune - Legislative Instruments workshops

In conjunction with the Office of Chief Parliamentary Counsel, VGSO will be holding lunch time workshops for clients titled Getting In Tune - Legislative Instruments.

The workshops will cover the rules, procedures tips and traps of creating and maintaining legislative instruments.

These will be held on:
Tuesday 28 July, 12.30pm
Thursday 30 July, 12.30pm

To register your interest, please contact marketing.team@vgso.vic.gov.au 

For assistance on these issues contact:

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0416

Mark Miller
General Counsel

9947 1408

[1] See RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185 at 202, and Visa International Services Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at 424. See also the Premier's Guidelines under the Subordinate Legislation Act 1994 published in the Government Gazette of 4 August 2011, at pages 1798 to 1799  Government Gazette of 28 August 2014 at pages 1906 to 1938.
[2] See the definitions of 'legislative instrument' and of instruments of a 'purely administrative nature' in s. 3.
[3] The VGSO's human rights and equal opportunity practice group can assist agencies with Charter assessments and the preparation of certificates:  Contact Catherine Roberts, Managing Principal Solicitor.
[4] See in particular section 16D of the Subordinate Legislation Act 1994, which deals with how to reconcile dual or competing publication requirements of the SLA and the authorising Act.
[5] See regulation 7 of, and Schedule 3 to, the Subordinate Legislation (Legislative Instruments) Regulations 2011.

Giving good reasons: a how-to guide by the High Court

The High Court’s recent decision of Wingfoot Australia Partners Pty Ltd v Eyup Kocak was eagerly awaited by government lawyers and decision-makers. Although primarily a decision about the interaction between the statutory and common law personal injury regimes, it provides helpful guidance on the standard of written reasons required by different government decision-makers.

Facts and procedural background

The case involved the assessment of the injuries of a worker by a medical panel appointed under the Accident Compensation Act 1985 (Vic) (AC Act).  The panel was referred questions about the worker’s injuries.  It then provided a report of its ‘written opinion and a written statement of reasons for that opinion’, as required by s 68(3) of the AC Act.

The worker claimed the reasons of the panel were inadequate.

That claim was rejected by the trial judge but accepted by the Court of Appeal.  The Court of Appeal agreed the reasons were inadequate and held that the opinion should be quashed by the remedy of certiorari.

The employer appealed to the High Court, arguing that the reasons given by the panel were adequate in the circumstances and that even if the reasons were inadequate, this should not lead to the opinion being quashed.

The High Court agreed.

Certiorari and its availability

By way of background, the writ of certiorari is a judicial review remedy that sets aside an unlawfully made decision or a decision tainted by an ‘error on the face of the record’.  At common law, the ‘record’ of a decision does not include its reasons unless they are incorporated into the order itself. However, in Victoria, the definition of the ‘record’ has been expanded by s 10 of the Administrative Law Act 1978 (Vic) (AL Act) to include any statement of reasons.

This means the certiorari remedy is available to quash a decision made by a Victorian government decision-maker with inadequate written reasons, so long as the decision continues to have legal effect.

Did the opinion of the medical panel continue to have legal effect?  This was the issue of most interest to personal injury lawyers awaiting the decision, as it turned on the use of panel opinions from proceedings under the AC Act in other types of personal injury compensation proceedings.

In this case, the Magistrates' Court had procured the panel opinion for its statutory compensation proceedings.

The question was whether s 68(4) of the AC Act compelled the County Court, in determining its common law compensation proceedings, to adopt the opinion, or whether the opinion had ceased to have legal effect once the Magistrates' Court proceedings were complete.

The Court of Appeal held that the opinion did continue to have legal effect.  The High Court, however, disagreed, holding s 68(4) only compelled a panel opinion to be adopted for any further questions arising under the AC Act. This meant the s 68 medical panel opinion had no continuing legal effect to quash, and certiorari was not available.

Thus, the orders made by the Court of Appeal were set aside, and the order of the trial judge (dismissing the worker's application) restored.

Standard of reasons

Despite having allowed the appeal on the above basis, the High Court went on to consider the more interesting issue of standard of reasons.

It started by noting that there is no common law obligation to provide reasons for a decision but, in this case, the panel was obliged by the AC Act to provide reasons for its opinion.

The Court held that where there is such an obligation and the statute is silent on the requisite standard, the standard could be determined by a 'process of implication' from the statute.  It identified two considerations to help determine this standard:

• the nature of the function performed by the decision maker in making their decision; and
• the objective, within the scheme of the relevant legislation, of the requirement for written reasons to be provided.

The Court noted that the nature of the function of a medical panel is to form and give its own opinion on the medical question referred for its opinion.  In doing so, it will consider the material put forward by the various parties.  However, its function is not to make up its mind by reference to competing arguments, but to form and give its own opinion on the medical question referred to it by applying its own expertise.

The objective of the requirement for written reasons is to allow people affected by the opinion to automatically be provided with the statement of reasons, rather than having to request it under the AL Act (as used to be done using the power under s 8).  This enables such a person to ask the Supreme Court to remove the legal effect of the opinion if the panel made an error of law in forming the opinion, as the error will appear on the face of the decision.

Combining these considerations, the High Court determined that the medical panel's statement of reasons must explain 'the actual path of reasoning' by which the panel arrived at their opinion, in sufficient detail to enable a court to see whether the opinion involved any error of law.  The Court held that the panel’s opinion in this case met this standard.

This can be contrasted with the higher standard that the Court of Appeal required of a medical panel, which was the judicial standard of reasons.  This would require the panel to provide an explanation, were it to form an opinion that did not accord with an expert opinion put to it.

Consequences for Victorian government decision-makers

This case did not provide the opportunity to reconsider the position that there is no common law duty to provide reasons, because of the express requirement in s 68 of the AC Act.

However, it does provide government decision-makers with useful guidance on what standard of reasons are required when an obligation does arise, be it through a request under the AL Act or because of an explicit requirement, as here, to provide reasons with the decision.

The Court reiterated that the standard of reasons required for a particular decision turns on the particular statutory context.  Decision makers must consider the specific legislation (particularly, the nature of the particular decision and the objective behind the requirement to give reasons) in determining the standard required for the written reasons they provide.

If you are in the Victorian Government and seek further information about this case, please contact:

Elsie Loh 
Principal Solicitor
t 8684 0419
elsie.loh@vgso.vic.gov.au

Time to spring-clean your privacy policy?

Big reforms are afoot in federal privacy law.  They don’t change Victorian law but they do give Victorian agencies some reasons to spring-clean their privacy policies.

Federal changes

From 12 March 2014, the Australian Privacy Principles (APPs) will apply to private sector organisations and Commonwealth Government agencies.

The APPs are a single set of principles that will replace the separate sets of public and private sector principles at the federal level, known as the Information Privacy Principles (IPPs) and the National Privacy Principles (NPPs) respectively.

These are the most significant amendments to the Privacy Act 1988 (Cth) since its commencement.  Most of the APPs are based on the existing IPPs and NPPs.  However, the APPs also include some significant changes in order to keep pace with changing technology, emerging privacy issues and developments in privacy law in Australia and internationally.

What does this mean for State government entities?

These reforms don’t change Victorian law.  However, it is an important development for the Victorian government to monitor because:

• it affects the privacy rights of individual Victorians; and
• if the move toward national uniform legislation proposed by the previous federal Government proceeds, it could ultimately affect the privacy obligations of Victorian public sector bodies.

The privacy principles in the Information Privacy Act 2000 (Vic) and the Health Records Act 2001 (Vic), which apply to the handling of personal information and health information by the Victorian public sector, are both adapted from the NPPs.  This was done, as explained in the Explanatory Memorandum to the IP Act, to maintain as ‘much consistency as possible’ with ‘perceptions and practice already operating nationally’.

Because the Victorian principles are based on the NPPs rather than the IPPs, the obligations of Victorian government agencies are, in many respects, similar to those that private sector organisations and Commonwealth government agencies will now have to comply with.  Victorian agencies have long been required to:

• have a clear and accessible policy about the management of personal information by the agency; and
• provide individuals with the option of not identifying themselves when entering transactions with the agency.

Other requirements of the APPs do not explicitly feature in Victorian law.  These include new obligations when an entity receives unsolicited information or engages in direct marketing.

Privacy policies

Although these new federal privacy reforms do not directly affect the privacy obligations of the Victorian public sector, there are two reasons why Victorian agencies might want to review their current privacy policies.

Firstly, whilst VIPP 5 has long required Victorian public sector organisations to have clearly expressed policies on managing personal information, the new APP 1 is far more prescriptive as to what an agency’s privacy policy should specify.  It requires privacy policies to contain the following information:

the kinds of personal information that the entity collects and holds;

how the entity collects and holds personal information;

the purposes for which the entity collects, holds, uses and discloses personal information;

how an individual may access personal information about the individual that is held by the entity and seek the correction of such information;

how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint;

whether the entity is likely to disclose personal information to overseas recipients;

if the entity is likely to disclose personal information to overseas recipients—the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.

Further guidance on each of these items is set out in the draft guideline for APP 1.

Given that the previous acting Victorian Privacy Commissioner wrote approvingly of the level of detail in APP 1, it would be a worthwhile exercise for Victorian agencies to consider if their policies match these more prescriptive requirements.

Secondly, the Office of the Australian Information Commissioner (OAIC) has recently conducted a ‘privacy sweep’ of the websites most used by Australians.  It assessed nearly 50 website privacy policies for accessibility, readability and content. 

The OAIC found that most sites had issues with either readability, provision of contacts for further information, relevance or length.  In particular, it was concerned that the average length of policies was over 2600 words, which it considered was too long for people to understand the key points.

The OAIC helpfully identified the following characteristics of the better privacy policies, which might be of interest to Victorian agencies thinking of updating their privacy policies:

Some of the best examples observed during the sweep were policies that made efforts to present the information in a way that was easily understandable and readable to the average person.  This was accomplished through the use of plain language; clear and concise explanations; and the use of headers, short paragraphs, FAQs, and tables, among other methods.

Most organisations included contact information for the particular individual responsible for privacy practices.  Providing more than one option for contacting that individual (eg mail, toll-free number and email) is a thoughtful way of ensuring there are no barriers to contacting an organisation about its privacy practices.

Some policies had been tailored for mobile apps and sites, going beyond simply providing a hyperlink to an organisation's existing website privacy policy.

In some instances, organisations provided both a simplified and full policy to assist their customers to understand what will happen to their personal information.

If you are in the Victorian government and would like advice on these developments or your privacy policy, please contact:

Carolyn Doyle
Principal Solicitor
t 9032 3038
carolyn.doyle@vgso.vic.gov.au

Sex - the new definition

Is ‘sex’ limited to male or female, or can it include individuals who identify as neither?  For the first time, an Australian court has legally recognised people who do not identify as male or female.

This case doesn’t have any immediate consequences for the interpretation of Victorian laws.  However, it provides food for thought for Victorian legislative drafters, policy developers and certain public servants, such as those working in criminal law or other laws premised on a binary understanding of sex.  It could also be raised in Victorian matters involving recognition of the non-specific gender of a person.

In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, the NSW Court of Appeal considered the meaning of ‘sex’ in the context of the NSW Births, Deaths and Marriages Registration Act 1995 (NSW BDMR Act).  The decision was handed down on 31 May 2013.

The appellant, Norrie, was born male and had a sex change operation that left Norrie not identifying with either gender.  In March 2010, the NSW Registrar of Births, Deaths and Marriages issued Norrie with a Recognised Details Certificate, which recorded Norrie's sex as 'not specified'.  This type of certificate is issued to immigrants to Australia, such as Norrie who was born in Scotland, who have changed sex and want it formally recorded.  However, shortly afterwards, Norrie was advised by the Registrar that the Certificate had been issued in error and was invalid.  The Registrar claimed that her power to register a sex change was limited to a change from male to female or vice versa.

Norrie first applied for review of the Registrar's decision to the NSW Administrative Decisions Tribunal (ADT), which dismissed the application.  Norrie was also unsuccessful before the Appeal Panel of the ADT.  Accordingly, Norrie appealed the Appeal Panel's decision on a question of law in the NSW Court of Appeal. 

The issue was whether the Registrar's power under s 32DC to register a person's change of ‘sex’ after a ‘sex affirmation procedure’:

• is limited to registering a change of a person's sex from male to female (or vice versa); or
• extends to changing the sex to some other specification.

‘Sex’ is not defined by the NSW BDMR Act.  Section 32A defines ‘sex affirmation procedure’ as:

a surgical procedure involving the alteration of a person's reproductive organs carried out:
(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
(b) to correct or eliminate ambiguities relating to the sex of the person.

Section 32A(b) was relevant to Norrie.

The Registrar contended that:

• ‘Sex’ should be given its ordinary meaning – that is, male or female – given there was no contrary intention in the Act. 
• The use of the phrase ‘opposite sex’ in s 32A confirmed this interpretation, as the meaning of sex should remain constant throughout the Act. 
• As other NSW legislation was premised on a binary construction of ‘sex’, it would be contrary to the purpose of the Act, which was to clarify a person’s legal status, to enable registration of a sex not recognised in any other NSW law.

This last point may be of interest to Victorian legislative drafters and certain public servants, particularly those working in criminal law.  The decision identifies several NSW legislative provisions based on a binary understanding of sex that may no longer protect a person like Norrie.  Such examples also exist in Victoria, including: 

• Criminal offences committed against females such as compelling sexual penetration of a vagina and offences relating to unlawfully detaining a female for immoral purposes.
• Protections in the criminal process, including:
• bodily searches under the Crimes Act 1958, the Control of Weapons Act 1990 or the Terrorism (Community Protection) Act 2003
• the taking of photographs under the Sex Offenders Registration Act 2004
• the composition of meetings of the Youth Parole Board and Youth Residential Board.
• Pension entitlements under the Coal Mines (Pensions) Act 1958.
• Construction of implied covenants under the Property Law Act 1958.
• Nomination to be a community visitor under s 28 of the Disability Act 2006, or to be a member of the Forensic Leave Panel or the Mental Health Review Board.
• Arguably, adoption leave under the Payroll Tax Act 2007.

The Court disagreed with the Registrar, finding it was open to the Registrar to register Norrie’s sex as ‘non-specific’.  It reasoned as follows:

• The word ‘sex’ no longer bears a binary meaning of male or female, according to extrinsic material including the most recent Oxford Dictionary, academic material, a very broad interpretation of the Second Reading Speech and the rule that beneficial legislation should be interpreted liberally.
• The use of the word ‘sex’ in the definition of ‘sex affirmation procedure’ did not limit its meaning in s 32DC (where it is unqualified).  Rather, the recognition in s 32A(b) of sexual ambiguities is an indication that Parliament intended ‘sex’ in s 32DC to be interpreted liberally.
• The possible legislative consequences of the registration of a person as neither male nor female should not dictate the construction of s 32DC.  This is because no one is compelled to seek a change of sex, and because courts may be able to interpret legislation in individual cases to avoid any absurdity.

The Registrar has applied to the High Court for special leave to appeal the decision. 

The only people for whom this decision has direct consequences are those in NSW who meet the requirements of Part 5A of the NSW BDMR Act (ie persons who have undergone a 'sex affirmation procedure').

The Victorian Act is likely distinguishable as its definition of 'sex affirmation surgery' excludes the second limb of the NSW definition.

However, the decision may have indirect consequences in Victorian case law and legislative and policy development.

Firstly, the decision may be persuasive to a Victorian judge, regardless of the differences between the two Acts.

Secondly, the decision is consistent with new federal laws and the policy of the previous federal Government to define ‘sex’ more broadly than as male or female and to change public service practices in this regard.

The federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed by the previous Parliament on 25 June 2013 and will commence before the end of the year.  It amends the Sex Discrimination Act 1984 to cover discrimination on a range of new grounds, including intersex status.

Assuming the amendments are valid, if the Victorian Act is not proscribed under the new s 40(2B) of the federal Act, any sections of the Act that are inconsistent with the Commonwealth law will be invalid to the extent of the inconsistency.  The Explanatory Memorandum noted that the previous federal Government had not yet decided which Victorian laws that might be proscribed under this provision.

Also, the previous federal Government developed guidelines on sex and gender recognition for federal departments and agencies.  The Australian Government guidelines on the recognition of sex and gender, which came into force on 1 July 2013, standardise sex and gender classification in federal government records and evidence required to establish or change sex.  All departments and agencies have until 1 July 2016 to comply with the guidelines.

If you are in the Victorian Government and would like more information about this decision and its possible consequences, please contact:

Joanne Kummrow
Managing Principal Solicitor
t 8684  0462
joanne.kummrow@vgso.vic.gov.au