To whom can Victorian public servants report corruption?

Recent changes to Victoria's integrity framework, including the establishment of several new integrity bodies and a system to monitor and oversee them, has changed the way in which to report allegations of corruption or improper conduct in the Victorian public sector.

Here’s a summary of some of the options available to a public servant or a member of the public who suspects improper conduct.  More information can be found from VGSO's publications, IBAC's website or the website of the body about which a complaint is to be made.

Type of conduct: ‘police personnel misconduct’

Body: the Independent Broad-based Anti-corruption Commission (IBAC)

IBAC started on 10 February 2013. It replaced the Office of Police Integrity and is the sole integrity agency with responsibility for dealing with matters relating to the misconduct of sworn and unsworn police members (described as 'police personnel conduct').

For a sworn officer, this includes:

• conduct that constitutes an offence punishable by imprisonment;
• conduct that is likely to bring the police force or police personnel into disrepute or diminish public confidence in them; and
• disgraceful or improper conduct, whether in their official capacity or otherwise.

The definition of police personnel misconduct is narrower for an unsworn officer.  It does not include conduct which constitutes an offence punishable by imprisonment, or disgraceful or improper conduct.  Unsworn members include those members who assist in the administration of the police (i.e. VPS members employed by Victoria Police), police recruits and Protective Services Officers.

Type of conduct: ‘corrupt’ conduct of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC

IBAC can receive complaints about ‘corrupt conduct’ of ‘public officers’ and ‘public bodies’.

Public officers/bodies include public servants, departments and statutory authorities, local councils, Members of Parliament, public schools and universities, public hospitals, judges and magistrates, except those bodies covered by the Inspectorate, set out below.

‘Corrupt conduct’ of public officers/bodies includes:

• dishonesty;
• breach of public trust;
• misuse of information; and
• conspiracy to do any of the above acts.

The conduct must, if the facts were found proved beyond reasonable doubt at a trial, constitute either:

• a statutory indictable offence; or
• the common law offences of perverting, or attempting to pervert, the course of justice or bribery of a public official.

IBAC can investigate only where it is ‘reasonably satisfied’ that the corrupt conduct is ‘serious’.  It can refer complaints to the Ombudsman, Chief Commissioner of Police, Auditor-General, Victorian Inspectorate or WorkSafe for investigation if it thinks it more appropriate for that body to investigate it.

IBAC is not prevented from investigating a complaint simply because the subject of the complaint is no longer a public officer or body.

Type of conduct: ‘improper conduct’ of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC/ Protected Disclosure Coordinator within a Department or Administrative Office (when it concerns their employee)/ the Ombudsman

IBAC can receive ‘disclosures’ about ‘improper conduct’ and has responsibility for determining whether a disclosure is a protected disclosure and which body will investigate.

Improper conduct means ‘corrupt conduct’ (as above) or specified conduct that is outside 'corrupt conduct' which includes:

• a substantial mismanagement of public resources, or
• a substantial risk to public health or safety, or
• a substantial risk to the environment.

The conduct must be serious enough that if proven it would constitute a criminal offence or reasonable grounds for dismissal.

‘Protected disclosures’ about employees of Departments or Administrative Offices can also be made to the Protected Disclosure Coordinator or the head of that Department or Administrative Office; or the supervisor of either the person making the disclosure (if they are a public servant) or the supervisor of the employee who is the subject of the disclosure.

The Ombudsman may also receive 'disclosures' about 'improper conduct', but only if the Ombudsman would be authorised to investigate the subject matter of the disclosure in the event it was determined by IBAC to be a protected disclosure.  If in doubt, a disclosure about improper conduct should be made to IBAC.

Protected disclosures about particular senior public servants including the Chief Commissioner of Police, the DPP and the Solicitor General can only be made to IBAC.  For a full summary, see VGSO’s previous newsletter on this topic.  The newsletter also sets out the whistleblower protections that come with making a ‘protected disclosure’.

 

Type of conduct: complaints about IBAC and its officers

Body: the Victorian Inspectorate (Inspectorate)

The Inspectorate started on 10 February 2013.  The Inspectorate can receive and investigate complaints about conduct of IBAC and its officers.

Type of conduct: complaints about the Chief Examiner, an Ombudsman officer or an officer of the Auditor-General's office

Body: IBAC or the Inspectorate

IBAC or the Inspectorate can receive and investigate complaints about conduct of the above officers.

Type of conduct: complaint about decisions and conduct under the Freedom of Information Act 1982 (Vic)

Body: Freedom of Information Commissioner

The Freedom of Information Commissioner started on 1 December 2012.  She deals with complaints about freedom of information (FOI) decisions.

With the establishment of the Commissioner, complaints about FOI decisions must be made to the FOI Commissioner, not the Ombudsman.  Complaints about the FOI Commissioner can be made to the Ombudsman or, if the complaint is about 'corrupt' conduct or 'improper' conduct, IBAC. 

Type of conduct: complaints about the performance of the duties and functions of the Inspectorate or the FOI Commissioner

Body: the Accountability and Oversight Committee of Parliament

Under the new integrity regime, Parliamentary committees have also been established to oversee a number of integrity bodies.  The Accountability and Oversight Committee is a joint investigatory committee established to monitor, review and report on the exercise of duties, powers and functions of the FOI Commissioner, the Ombudsman, and the Inspectorate (in respect of Ombudsman officers).

Type of conduct: complaints about IBAC or the Inspectorate

Body: the IBAC Committee of Parliament

The IBAC Committee is a joint investigatory committee established to monitor, review and report on the performance of duties and functions of IBAC and the Inspectorate (other than in respect of officers of the Ombudsman or the Auditor-General).

Type of conduct: complaints about the Auditor-General

Body: the Public Accounts and Estimates Committee of Parliament

As before, the Auditor- General remains subject to the Public Accounts and Estimates Committee, which now also has responsibility for oversight of the Inspectorate’s functions in respect of the officers of the Auditor-General.

Type of conduct: ‘protected disclosures’ about members of Parliament

Body: Speaker/ President

Disclosures about members of the Legislative Assembly must be made to the Speaker of the Legislative Assembly.  Disclosures about members of the Legislative Council must be made to the President of the Legislative Council.

For more information about public sector governance and integrity in the Victorian Public Sector, please contact:

Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au

Katie Miller
Principal Solicitor
t 8684 0460
katie.miller@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

What to do when someone throws the Constitution at you

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

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

Here’s a quick how-to guide.

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

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

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

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

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

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

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

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

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

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

Changes to the Public Private Partnerships guidelines

In May 2013, the Treasurer Michael O'Brien announced significant reforms to the Victorian Government's public private partnership (PPP) guidelines.  The new Partnerships Victoria Requirements, together with the National PPP Policy and Guidelines, apply to the next phase of Victorian PPP projects.

The areas of reform include the following.

Expanding the type of services that can be provided

The Government will consider expanding the type of services that can be provided under the PPP model to include services that were previously delivered by the public sector.  For example, the Ravenhall Prison Project (for which Expressions of Interest are currently being evaluated) will include custodial services provided by the private sector. 

Applying the PPP model to small-scale projects

Projects valued at less than $50 million may use a streamlined PPP model to generate private investment if they have suitable value for money drivers.  Alternatively, projects can also be bundled together to attract the PPP model.

Changing how value for money is assessed

The Public Sector Comparator (PSC) will continue to be used as a benchmark to test value for money for PPP projects.

However, if bidders do not meet the risk adjusted PSC cost expectations through the procurement process, this does not necessarily mean the Government will revert to traditional design and construct delivery.

Government must also now develop a scope ladder alongside each PSC.  Its purpose is to identify any scope items that bidders can remove or add should bids be over or under the PSC. 

Reducing bid costs

The reimbursement of partial bid costs for some PPP projects will be trialed.  Government will communicate its approach for reimbursement for a particular project at the time of releasing the Expression of Interest.  The Government may also consider reimbursing some bid costs incurred by losing bidders in exchange for intellectual property in their unsuccessful bid, on a project specific basis.

The new requirements are also aimed at process improvements, including to:

• minimise information submission requirements; 
• shortlist only two bidders where appropriate; and 
• avoid ‘best and final offer’ processes where possible.

Modified financing structures

The Government will consider making partial capital contributions for some PPP projects.  Normally, construction of PPPs is financed entirely by the private sector and repaid by the Government over the life of the project.  This change in policy is aimed at increasing private sector investment by providing an alternative to full private finance.

Government contributions could be made either as:

• milestone payments during construction (eg for large scale projects); or
• a lump sum payment once construction is complete. 

For more information about public private partnerships, please contact

Julie Freeman
Assistant Victorian Government Solicitor
t 9947 0404
julie.freeman@vgso.vic.gov.au

How to sue the government

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

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

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

Civil and constitutional cases

Federal courts

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

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

State courts

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

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

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

Judicial review (in the Supreme Court)

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

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

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

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

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

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

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

Merits review (in VCAT)

In a merits review proceeding, the parties are:

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

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

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

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

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

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

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

How to be a five-star witness

Government solicitors are often asked to prepare departmental or other witnesses to give evidence in court or VCAT.  You may not coach witnesses, that is, suggest answers to questions.  But here are some tips that you can provide to them to make their (and your) life easier before what can be a nerve-wracking experience.

The days before

• Do not discuss your evidence with other witnesses.
• Review any notes or statements you have made.
• Find out where the court is and how long it will take you to get there.
• Find out how long you will be needed for.  Courts normally sit from 10 until 4, with a one-hour break at 1pm.  VCAT listings vary.  Every effort will be made to minimise the time you spend at court, but be prepared to wait.

On the day

• Bring any statements or notes you have made about the case with you to court. Tell the solicitor which documents you have brought.
• Choose clothes that show respect for the judge and the court proceedings.  Look professional, dressing appropriately for your position.
• Make sure there are no sharp or glass objects in your bag (e.g. knitting needles, tweezers, umbrellas).
• Get to court in good time.  There may be a queue to pass through security.
• Turn your phone off before you enter the courtroom.

In the minutes before

• Sit outside the courtroom until it is time for you to give evidence.  Someone will come and get you when it is your turn.
• Before giving evidence, you will be asked if you wish to take an oath or make an affirmation that your evidence is true.   

Giving evidence

• The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined (by asking additional questions).  The witness may then be ‘re-examined’. Once this process has happened, the defence will do the same with its witnesses.
• The Judge, Magistrate or Member may also ask you questions about your evidence.  You should address the Judge or Magistrate as ‘Your Honour’.  In VCAT, it depends on the seniority of the Member hearing your case:
• The VCAT President is addressed as ‘Your Honour’
• Vice Presidents are addressed as ‘Judge’.
• Members are addresses as ‘Sir’ or ‘Madam’ or as ‘Ms’ or ‘Mr’ and the Member’s surname. 
• Giving evidence is not a memory test.  You don’t get points for answering every question.  Do not guess or speculate. If you are not sure about an answer, just say so, else you may do more harm than good.  You can’t say, for example, ‘I would have done X’ or speculate about why a person acted in a particular way.
• Listen to and think about each question before you answer. 
• Give evidence in your own words.
• Make your answers as specific as you can.  Do not generalise.
• If you do not understand a question, you should say so.
• Do not say what someone else has told you unless you are asked.
• Explain any technical terms you have to use.
• Speak clearly so that your evidence can be understood. The microphone in front of you only records your voice. It does not make it louder.  You are giving evidence to the judge, so face them when answering a question
• You should not look at your notes without permission from the Judge.  If you are having trouble remembering details or accurately answering the questions, ask the Judge for permission before looking at any notes that you made at the time when the events were fresh in your memory.
• Cross-examination normally takes the form of a series of propositions put to you by the other side’s barrister. If you do not agree with all parts of the proposition, say so.  If you do not know whether a proposition is right, say so.  Don’t just agree with the barrister because you don’t want to seem obstinate.
• Don’t lose your patience with the other side’s barrister when being cross-examined.  The best witnesses remain neutral and focused. 
• If a witness has never been cross-examined before, one way a solicitor can help a witness understand how it feels is to engage in a mock cross-examination beforehand, using the type of questioning styles that a barrister would use in court.  This mock cross-examination should not be based on facts similar to the actual hearing.
• If you qualify as an expert witness (and meet all the requirements for this status), you may give opinions within your expertise.  Otherwise you can only give evidence of facts.

After

• After you have given your evidence and are excused by the court, you are free to leave. You may stay in the courtroom if you wish, unless you are expected to give evidence again later in the case.

VGSO has a network of experienced advocates who can represent Victorian government clients in all courts and tribunals.  Briefing our in-house advocates, rather than a barrister, can be more cost effective and ensures access to our expertise in specialist areas of Victorian government law.  Having regard to the demands of a particular matter, we can provide advocates ranging from our Special Counsel to solicitors of various seniority.  For more information about VGSO advocates, please contact

Hayley Petrony
Assistant Victorian Government Solicitor
t 9947 3011
hayley.petrony@vgso.vic.gov.au