Striking a balance for the thin blue line: The new torts regime for Victoria Police

The current law

The current law in Victoria founded in s 123 of the Police Regulation Act 1958 states that sworn police members are provided statutory immunity by the State of Victoria (the State) in civil claims where the conduct or omitted conduct is in the course of their duties, and the conduct is reasonably or necessarily done and they have acted in good faith.  Generally, this means that if this statutory immunity is provided and a plaintiff is successful in bringing a legal proceeding in tort against police members that liability and an award of damages is transferred and paid by the State.

The intent of the current law is to give those adversely affected by police behaviour in torts a right of recourse against the State for police members’ wrongs.  However, there are numerous pitfalls with the scheme. One of these is the lack of certainty for claimants, especially those who bring successful claims against individual police members but then struggle to recover damages and have no recourse to obtain money from the State because the members are deemed not to have acted reasonably, necessarily or in good faith.

The current regime has also given rise to a multitude of practical problems, such as:

• the requirement to engage separate legal representation to represent the interests of the State and police members named as defendants in a civil claim;
• significant legal expenses incurred in cases involving split legal representation; and
• difficulties in coordinating and managing claims involving split legal representation. 

The new law

A new legislative scheme under the Victoria Police Act 2013 ( the Act) will soon come into force to overcome the pitfalls with the current scheme. A key aim of the new scheme is to provide people with a level of certainty that the State will be liable if their legal claim against Victoria Police is successful.

Essentially, the new Act provides that a person can bring a police tort claim against the State where a police member or protective services officer (PSO) has allegedly committed a tort in the performance (or purported performance) of their duties.  A 'police tort claim' in the Act includes claims in negligence, assault and battery, false imprisonment and malicious prosecution, as well as detrimental action claims and certain wrongful death actions.

Under the Act, a person is not permitted to make a claim against a police member or PSO personally unless the State denies liability by arguing that an individual member or PSO engaged in 'serious and wilful misconduct'. This aims to protect police members and PSOs that have acted in good faith in the course of their duties from being personally named in court proceedings.

However, if a police member or PSO has engaged in particularly egregious conduct the State can raise the defence of 'serious and wilful misconduct' to defeat the claim. If the State raises this defence, the individual police members or PSOs will be required to be named as individual defendants to the proceeding and these individuals will be required to pay any damages ordered by the court if they are found liable in the proceeding and have also been found to have acted with 'serious and wilful misconduct'.

The meaning of 'serious and wilful misconduct'

The term 'serious and wilful misconduct' is not defined in the Act and has not yet been considered by Victorian courts in the context of policing.  However, guidance can be taken from the Victorian Government, which stated the following in the Second Reading Speech for the Act:

'this means that serious misconduct by police which is deliberate, which extends beyond recklessness, or culpable or gross negligence and which is done with a knowledge that risk of injury or loss may occur, may fall within the concept of serious and wilful misconduct'.

In other jurisdictions, examples of what courts have found to constitute 'serious and wilful misconduct' by police members include:

• falsely imprisoning a suspect, forcing a confession using threats and maliciously prosecuting the suspect based on this confession;
• lying to a police oversight body and not acting on disciplinary files;
• committing multiple acts of larceny; and 
• extorting $10,000 from an alleged child pornographer and making threats to otherwise pursue child pornography charges.

Under the Act, if the State succeeds with its defence of 'serious and wilful misconduct', the State has no right to seek costs against the person bringing the claim. However, the State must pay any damages or costs awarded to a claimant against a police member or PSO, if the Minister is satisfied that the successful claimant is unlikely to recover the money from the police member (or PSO) and has exhausted all avenues to recover the amount.

Time for change

What impact the new regime will have on claimants and Victoria Police remains to be seen. However, as legal representatives for Victoria Police, the VGSO welcomes these legislative changes which will hopefully provide certainty for successful claimants, less stress for members involved in civil litigation, less public monies spent on legal fees and  increased efficiency in the civil litigation process.

If you are in the Victorian Government and would like advice on the new torts regime for Victoria Police, please contact:

Louise Jarrett
louise.jarrett@vgso.vic.gov.au
9247 6798

Monika Pekevska
monika.pekevska@vgso.vic.gov.au
8684 0467

Plan Melbourne Overview: Your Quick Guide to the Final Plan Melbourne

Plan Melbourne is the new metropolitan planning strategy, setting out the Victorian Government's vision for Melbourne in 2050. 

The final version of Plan Melbourne was published in late May and now incorporates a planning scheme amendment and an updated ministerial direction to give Plan Melbourne statutory effect. Most notably, the final version incorporates the higher population projection of 7.7 million Melbourne residents in 2050, an increase of an additional 1.1 million people from the draft plan! This is a huge jump from Melbourne's current population of 4.3 million. 

Initiatives Already Actioned

Planning initiatives that have also already been actioned as part of the strategy include the establishment of the Metropolitan Planning Authority (the MPA), additions to the growth boundary, reformed zoning, new processes for planning permit applications, reforms to the growth areas infrastructure contributions, and reforms to developer contributions.

The Metropolitan Planning Authority (MPA) 

Plan Melbourne's planning objectives are now overseen by the newly created MPA. This government body supersedes the Growth Areas Authority to advise on, and overseeing the implementation of, Plan Melbourne. The MPA is designed to work closely with councils and government departments, while also supervising land use and infrastructure planning on state significant sites.

Plan Melbourne's Seven Planning Objectives

Plan Melbourne has seven planning objectives designed to respond to expected growth and demands of the city. These objectives are: 

1. Delivering Jobs and Investment: by creating a city structure that drives productivity, investment and job creation
2. Housing Choice and Affordability: by providing diverse housing options close to jobs and services
3. A More Connected Melbourne: through integrating and improving transport accessibility, infrastructure and options
4. Liveable Communities and Neighbours: by maintaining Melbourne's existing suburban layout and creating new peripheral suburbs
5. Environment and Water: improving water, energy and waste management systems and managing growth 
6. A State of Cities: creating numerous activity centres around metropolitan Melbourne
7. Delivering Better Governance: achieving clear results through better governance, planning, regulation and funding mechanisms

Plan Melbourne Summary

The seven planning objectives are supported by 41 directions which have not been changed in the final version. At a glance the directions culminate in the following overall scheme: 

Administration: 

• Plan Melbourne establishes five new metropolitan sub regions as the basis for planning coordination (Central, Northern, Eastern, Southern and Western); and
• the MPA, as discussed above, will oversee the implementation of Plan Melbourne. 

Activity Centres:

• There will be a strong focus on activity centres to accommodate growth, with less emphasis being placed upon developing areas of existing detached housing; however
• this said, 57% of the expected 1,046,000 new dwellings will be in established areas.  

Urban Renewal Precincts: 

• Plan Melbourne will encourage residential growth in previously announced urban renewal precincts such as Arden-Macaulay, E-Gate and Fishermans Bend; and
• Plan Melbourne will create numerous urban renewal precincts including Cremorne, Collingwood, North Richmond to Victoria Park, and also at Hampton, Jewell, Alphington and Essendon Stations.

Permanent Boundary:

• Plan Melbourne will develop a mechanism to lock in a permanent settlement boundary around Melbourne’s built-up metropolitan area;
• This permanent metropolitan urban boundary will replace the Urban Growth Boundary; and
• In determining the boundary, the MPA will take into consideration input from local governments, the November 2011 report by the Logical Inclusions Advisory Committee, Melbourne's values and topography, and boundaries formed by major infrastructure.

Decentralising Excess Growth into Regional Towns:

• Excess growth will be diverted into regional Victoria once growth areas in the metropolitan region are filled. These regional towns and urban centres include Bacchus Marsh, Ballan, Broadford, Kilmore and Wonthaggi. 

Infrastructure Projects: 

• Plan Melbourne will create an 'Integrated Economic Triangle' which expands the Central City. This triangle will connect the Hastings-Dandenong corridor with the Hume corridor to the north and the Wyndham-Geelong corridor to the south-west. This development utilises existing infrastructure, such as the Ports of Hastings and East West Link. The intention is to make Melbourne the largest commercial and residential centre in Australia by 2040;
• Plan Melbourne will implement the Metro 2 Project whereby the Epping and Hurtsbridge lines are rerouted via a tunnel to Melbourne University and Fishermans bend;
• There will be a continued expansion of the freeway network including the East-West link. The possibility of a North East Link, linking the Eastern Freeway to Greensborough, will also be investigated; and
• Plan Melbourne contemplates the possibility of building a new airport in Melbourne's outer south east. 

Code Assessment Approach:

• A "Code Assessment Approach" will be taken to multi unit development. This means that some developments, in areas such as the new Residential Growth Zone, may be exempt from notice and third party appeals if they meet certain enhanced "ResCode" standards. 

What does this mean for the VPS?

Plan Melbourne brings with it changes in the approach to Melbourne's future development and planning, the implementation of which may have significant impacts on decisions made by Departments and Local Governments. 

If you would like to know more about how Plan Melbourne may specifically impact on you or your department, the VGSO is ready to provide legal advice through our Land, Planning and Environment team:

Juliette Halliday

juliette.halliday@vgso.vic.gov.au

8684 0299

Eliza Bergin

eliza.bergin@vgso.vic.gov.au

8684 0267

Privacy Bill Goes Public

This week Victoria’s much anticipated Privacy and Data Protection Bill 2014 (PDP Bill) was introduced into Parliament, and second-read yesterday by the Attorney-General. The Bill reflects the Government’s 2012 commitment to strengthening the protection of personal and other information handled by Victorian government agencies.

This Bill repeals the Information Privacy Act 2000 (IP Act) and the Commissioner for Law Enforcement Data Security Act 1995 (CLEDS Act), and creates a new office of the Commissioner for Privacy and Data Protection (Commissioner) with broad powers of oversight and enforcement. The Bill does not affect the existing legislative arrangements whereby Commonwealth agencies and some private sector entities and individuals are subject to the Privacy Act 1988 (Cth) (Commonwealth Privacy Act).  Victoria’s health privacy regime under the Health Records Act 2001 and related legislation is also unaffected by the Bill.

Nevertheless, if the Bill is passed and assented to, it will usher in a new era with new emphases not only for privacy practitioners but also for public sector body Heads, who will need to pay close attention to their protective data security obligations.

Information Privacy – what’s different, what stays the same?

Provisions of the IP Act that are taken to be re-enacted include:

• Schedule 1, the Information Privacy Principles (IPPs);
• the requirement that public sector organisations generally must not do an act or engage in a practice that contravenes an IPP in respect of personal information they collect, hold, manage, use, disclose or transfer;
• the codes of practice provisions; and
• the information privacy complaints provisions.

A significant departure from the IP Act is the new provision (clause 20(3)) whereby an organisation is not required to comply with the IPPs in relation to an act or practice that is permitted under:

1. a public interest determination (PID), or a temporary public interest determination (TPID); or
2. an approved information usage arrangement (IUA).

Similarly, under clause 16, for the purposes of this Bill, an act done or a practice engaged in by an organisation interferes with an individual’s privacy only if it is contrary to or inconsistent with an IPP or applicable code of practice, or a PID or TPID, or an IUA, or a current certificate issued pursuant to clause 55.

PIDs and TPIDs

The Bill permits the Commissioner to make a written determination that where an act or practice of an organisation may or does breach:

• an IPP (other than IPP 4, Data Security, or IPP 6, Access and Correction); or
• an approved code of practice,

it will not be regarded as an interference with privacy while the relevant determination is in force. TPIDs may be of up to 12 months’ duration.

Before making such a determination, the Commissioner must be satisfied that the public interest in the organisation doing the act or engaging in the practice substantially outweighs the public interest in its adhering to the relevant IPP or IPPs or applicable approved code of practice. This test is substantially the same as in s 72 of the Commonwealth Privacy Act. PIDs and TPIDs can be disallowed by either House of Parliament.

IUAs 

An IUA is an arrangement between permitted parties including organisations, agencies of the Commonwealth, another State or Territory, and private sector bodies that:

1. sets out acts or practices for handling personal information to be undertaken for one or more public purposes as defined; and
2. in respect of any of those acts or practices,
   i. modifies the application of or provides that the practice does not need to comply with an IPP (other than IPPs 4 and 6), or an approved code of practice; and/or
   ii. permits handling of personal information for the purposes of an ‘information handling provision’ – that is, a provision of an Act that permits handling of personal information as ‘authorised or required by law’ or by or under an Act, or in circumstances or for purposes required by law or by or under an Act.

The Bill details the information to be supplied to the Commissioner when an application for approval is submitted by the organisation that is the IUA’s designated ‘lead party’. Before an IUA may be approved by the relevant Minister or Ministers, the Commissioner must prepare a report and certify that the proposed IUA meets the same public interest test as for PIDs and TPIDs. The Commissioner may issue compliance notices in respect of IUAs, and they may be amended or revoked on specified grounds.

Certification

One additional new mechanism provides for the Commissioner to certify that a specified act or practice of an organisation is consistent with an IPP, an approved code of practice or an information handling provision. This should assist organisations where opinions may differ or there may otherwise be doubt as to the legality of a proposed action. The Commissioner’s certification may be reviewed by VCAT, but organisations who act in good faith on the basis of a certification will be protected while it is in force.

Protective data security

The protective data security provisions of Part 4 of the Bill apply, with specified exceptions, to public sector agencies, special bodies within the meaning of section 6 of the Public Administration Act 2004 and any bodies to which the Governor in Council declares them applicable.

‘Public sector data’ as defined is to be protected by a regime consisting of:

• the Victorian protective data security framework, developed by the Commissioner;
• protective data security standards (standards) (which may be either general or customised), to be issued by the Commissioner following approval by the Attorney-General and the Minister for Technology; and
• protective data security plans (plans) based on the security risk profile assessments (risk assessments) to be undertaken by relevant agencies themselves.

A public sector body Head is accountable under the Bill for compliance with protective data security standards in respect of the public sector data their entity collects, holds, manages, uses, discloses and transfers, and for the public sector data systems their entity keeps. Unlike in respect of Part 3, Information Privacy, the Bill does not provide for the Commissioner to have any direct authority over an entity’s contracted service providers (CSPs). Rather, the relevant public sector body Head must ensure that the entity’s CSPs comply with the applicable standards and plans. Plans based on the risk assessments are to be completed within two years after the publication of the standards. These plans must be provided to the Commissioner, and public sector body Heads must ensure that their plans are reviewed if circumstances change, or otherwise every two years.

What about law enforcement data security?

Together with the Bill, the Crime Statistics Bill 2014 has also been introduced in to Parliament. The security of law enforcement data is separately provided for in Part 5 of the Bill, which applies to Victoria Police and the Chief Statistician, together with the Chief Statistician’s employees or consultants, under section 6 of the Crime Statistics Bill.  The Bill provides for the Commissioner to issue law enforcement data security standards (law enforcement data security standards), and it is intended that there be no gap in the application of the existing 2007 law enforcement data standards under the CLEDS Act and those provided for under the Bill. To the extent that there is any inconsistency between a law enforcement data security standard and a standard, the law enforcement data security standard prevails.

Part 6 of the Bill gives the Commissioner significant powers to require access to data, data systems and crime statistics data and to take copies or extracts of that data. If, in the course of conducting a compliance audit in respect of Parts 4 and 5 of the Bill, the Commissioner considers that any matter requires urgent attention, it may be referred to appropriate persons or bodies including the Ombudsman, the Director of Public Prosecutions and the Independent Broad-based Anti-corruption Commission (IBAC). The Commissioner may in any case disclose any information obtained in connection with the Commissioner’s functions to the IBAC if the information is relevant to functions or duties of the IBAC.

This Bill is yet to be debated in Parliament, and is sure to attract considerable public attention and comment over the coming weeks. Meanwhile, if you are in the Victorian Government and would like assistance to ensure that your agency’s privacy practices comply with the IP Act, call:

Carolyn Doyle
Managing Principal Solicitor
carolyn.doyle@vgso.vic.gov.au
9947 1403

Deidre Missingham
Senior Solicitor
deidre.missingham@vgso.vic.gov.au

 Forthcoming seminar for the Victorian Public Sector 

VGSO is delighted to announce that the speaker at our seminar on 22 July will be David Watts, who is currently the Acting Privacy Commissioner and CLEDS Commissioner. Also presenting will be Deidre Missingham who, on secondment from the VGSO to the Department of Justice, was the Senior Legal Policy Officer and principal instructor in relation to the new Bill.

To reserve a seat at this seminar, please contact VGSO via marketing.team@vgso.vic.gov.au.

 Privacy and Data Protection Bill 2014 Workshops for the Victorian  Public Sector 

VGSO is holding small-group workshops on the following dates to assist clients to understand the scope of their obligations under this new Bill.
• Friday 8 August
• Monday 11 August
• Friday 15 August
• Tuesday 19 August

To register your interest in these workshops please contact Carrie Anderson 9947 1446 or carrie.anderson@vgso.vic.gov.au.

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

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

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

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

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

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

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

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

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

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

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

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

eServices Contract released!

Victorian government purchasers are required to engage suppliers of information and communication technology (ICT) products and services using a cloud based procurement platform called the eServices Register. The eServices Register provides a streamlined process for engaging suppliers of eServices.  It is mandatory to use for inner budget agencies and administrative offices as defined in the Public Administration Act 2004.

The eServices Contract was released on 8 April 2014,  it replaces an interim eServices Contract that was previously in place.  The contract was finalised after extensive consultation with various government and industry stakeholders.  The release of the contract means that government purchasers are able to approach suppliers for each procurement using a known set of terms. 

The contract is mandatory for use with all engagements under the eServices Register for  new procurements.  The interim contract can still be used for projects that were 'in flight'  at the date of the release of the final contract. 

What types of eServices are covered by the contract?

There are various categories of eServices that are covered by the eServices Contract.  These include:

• Professional Services - that is, ICT consultancy services;
• Cloud Services -  including Software as a Service (SaaS) or Infrastructure as a Service (IaaS) and related services;
• Implementation Services - the implementation of new software applications.  It does not cover the implementation of commercial off-the-shelf software;
• Development Services - the development of new software applications.  This does not include customising commercial off-the-shelf software;
• Hosting Services - the hosting of an agency's software application or website on a supplier's server;
• Managed Services - the management by a supplier of an agency's software application or function;
• Maintenance and Support Services - maintenance and support services in relation to software; and
• Hardware Services - maintenance and support services in relation to ICT hardware.  

The eServices Contract should not be used to purchase software licences (where there will be no associated eServices) or hardware.

Structure of Contract

The eServices Contract consists of the following documents (in descending order of priority):

•  the eServices Terms;
• the Contract Variables;
• the Purchaser's Request; and
• the Supplier's Response.

Each of these documents is explained below:

The eServices Terms

The eServices Terms are the standard terms and conditions for the eServices Contract.  The parties will not be able to negotiate or amend these terms.

The eServices Terms states that the Contract Variables, the Purchaser's Request and the Supplier's Response all form part of the contract.

The Contract Variables

The Contract Variables is the only document that can be negotiated by the parties.  It has been structured to enable the parties to specify:

• the particular categories of sServices that apply under the contract; and
• the specific arrangements that apply under the contract.

If the Contract Variables specify that specific categories of eServices apply, corresponding clauses in the eServices terms are adopted.

The Purchaser's Request

The Purchaser's Request is the document that invites suppliers to submit a bid for the services.  It is made available to suppliers via the eServices Register. 

It should specify, amongst other things, the scope of the services to be provided and the criteria that will be used to evaluate bids by the supplier. 

Common examples of a Purchaser's Request include:

• Request for Tender (RFT);
• Request for Quotation (RFQ); and
• Request for Proposal (RFP). 

The Supplier's Response

The Supplier's Response is the document that comprises the bid that has been submitted by the preferred supplier on the eServices Register in response to the Purchaser's Request.  This document would normally provide a description of the approach that has been proposed by the supplier in delivering the project.

Further Information

If you would like to access the eServices Contract, it can be found on the eServices Register Gateway.

To discuss the eServices Contract or the eServices Register generally, please contact:

Isabel Parsons

9947 1405

isabel.parsons@vgso.vic.gov.au

Sam Funnell

9947 1407

sam.funnell@vgso.vic.gov.au

Tina Lee

9947 1426

tina.lee@vgso.vic.gov.au

Nick Busietta

9947 1402

nick.busietta@vgso.vic.gov.au

New procedure for seeking suppression orders in the Coroners Court

Introduction
You might remember an earlier blog regarding The Open Courts Act 2013 (the Act) which came into operation on 1 December 2013.  To refresh your memory, the purpose of the Act is to consolidate and reform statutory powers of Victorian courts and tribunals in relation to granting suppression orders and closed-court orders.  These new measures aim to strengthen and promote the principles of open justice and free communication of information by creating a presumption in favour of disclosure of information.  This blog aims to help you understand exactly what this means for the Coroners Court which must now have regard to this presumption of disclosure in determining whether to make a suppression order.

Powers of Coroners Court to grant suppression
The Act sets out the test for the Coroners Court to grant a proceeding suppression order, which is an order prohibiting or restricting the disclosure of a report of the whole or any part of a proceeding or any information derived from a proceeding.

The Act preserves the power of the Coroners Court to make a proceeding suppression order in an investigation or inquest if a Coroner reasonably believes that a suppression order is necessary because disclosure would be likely to prejudice the fair trial of a person or be contrary to the public interest.

However, the Act now provides that the Coroners Court cannot grant a suppression order, unless satisfied by evidence, or sufficiently credible information, that the grounds for making the suppression order are established.  The Coroners Court  may also make interim proceeding suppression orders.  However, a Coroner is required to address the substantive application for a suppression order 'as a matter of urgency'. An interim suppression order may be made without the Coroner determining the merit of the grounds of the application.

Procedure
The Coroners Court can make a proceeding suppression order on its own motion or by application by an interested party, or any other person considered by the Coroners Court to have sufficient interest in the order being made.  An interested party seeking a suppression order over evidence must file a Form 46 - Notice of Application for Suppression Order (the Notice).  The Notice can be accessed on the Coroners Court website (http://www.coronerscourt.vic.gov.au/).  The Notice must specify the details of documents, materials, names or other information and the extent to which suppression is sought, and outline the factual and legal basis to support grounds for the application.  The applicant must give three business days' notice to the Coroners Court and to other interested parties of the making of the application.

On receiving a Notice, the Coroners Court must take reasonable steps to ensure that any relevant news media organisations are notified of the application for suppression.  The information contained in the Notice itself is not subject to suppression and the Coroners Court will provide a copy of the Notice to news media organisations and interested parties.  Various persons, including news media organisations and other interested parties, may appear and make submissions at the hearing of the application for suppression.  This process is intended to promote the principles of open justice, in that news media organisations may adopt the role of contradictor and in turn, provide the Coroners Court with the benefit of submissions in favour of the principle of open justice and disclosure of information.

These notice requirements do not apply to a proceeding suppression order on a Coroner's own motion.

At times, circumstances may dictate that an interested party is not aware of the need for a suppression order with sufficient time to satisfy the notice requirements.  For example, this may occur where particular documents are requested during the course of an inquest, or in the course of oral evidence given by a witness.  In such circumstances, the Coroners Court may still hear the application, but only if it is satisfied that there was a good reason for the notice requirements not being met, or it is in the interests of justice that the Coroners Court hear the application without notice.

Duration of suppression orders
The Act imposes an obligation on the Coroners Court to ensure that a suppression order operates no longer than is reasonably necessary to achieve the purpose for which it is made.  A Coroner must determine the period for which the suppression order will operate and specify that period in the order itself.  The order may be made for a fixed period, or until the occurrence of a specified future event.  For example, in the case of a suppression order which prohibits disclosure of an individual's personal information, a specified future event
may be that person's death.

If you are in the Victorian Government and would like more information on this topic please contact:

Belinda Trevean
Managing Principal Solicitor
t 03 8684 0415
belinda.trevean@vgso.vic.gov.au

Paula Cumbo
Principal Solicitor
t 8684 0465
paula.cumbo@vgso.vic.gov.au

Jessica Tribe
Solicitor
t 03 8684 0279
jessica.tribe@vgso.vic.gov.au

Rose Singleton
Solicitor
t 8684 0428
rose.singleton@vgso.vic.gov.au

'Double or nothing' - The rule against duplicity in charging criminal offences

In Victoria, the rule against duplicity is a common law rule concerning the way criminal charges are drafted.  The rule provides that the prosecution must not allege the commission of two or more offences in a single charge in a charge-sheet.[1]  Such a charge is sometimes said to be 'duplex' or 'duplicitous'.

While the rule is well established in criminal law, prosecuting agencies sometimes find it difficult to apply in practice.  It is often stated that there is no 'technical verbal formula of precise application' that provides an easy guide to applying the rule.[2]

However, like other common law and statutory rules [3] for drafting criminal charges, the rule stems from two important principles:

• First, as a matter of fairness, a person charged with a criminal offence is entitled to know the crime that they are alleged to have committed, so they can either prepare and present a defence or decide to plead guilty.  
• Second, the court hearing the charge must also know what is alleged so that it can determine the admissibility of evidence, focus on the relevant fact-finding task, consider any possible defences which might be available, and determine the appropriate punishment in the event of a conviction.

When does a charge contravene the rule against duplicity?

There are generally considered to be two ways in which a charge might offend the rule against duplicity: These are:

Patent duplicity, where a single charge alleges the commission of two separate offences.  

Latent duplicity (also called 'latent ambiguity' or 'latent uncertainty'), where a single charge alleges the commission of only one offence, but the evidence led by the prosecution in relation to the charge discloses a number of separate offences, all of which could fit the allegation described in the charge.

In either case, the accused may be prejudiced in a number of ways by a duplex charge.  A concise summary of the prejudice that may flow in such cases can be found here in the judgement of Redlich JA in the Victorian Court of Appeal decision of PPP v The Queen.[4]

An excellent summary of the history and development of the rule can be found in the judgement of Leeming JA in the NSW Court of Criminal Appeals' decision of Environment Protection Authority v Truegain Pty Ltd.[5] 

Distinction between a duplex charge and a charge alleging an offence 'in the alternative'

Sometimes a statutory provision will state that an offence can be committed in alternative ways (for example, intentionally or recklessly causing injury).  Under the Criminal Procedure Act 2009 (Vic), the prosecution may generally plead that an offence was committed 'in the alternative' in the one charge.[6]  

However, it can sometimes be difficult to apply this exception in practice.  One problem is that a single statutory provision sometimes creates separate offences.[7]   Whether a statutory provision creates separate offences or a single offence that can be committed in alternative ways can only be identified by process of statutory interpretation. VGSO's lawyers are experts in statutory interpretation and are pleased to provide assistance in this regard.

Exception for offences that are part of a 'single transaction' or are 'continuing offences'

An exception to the rule against duplicity is where an accused is alleged to have engaged in a course of conduct consisting of a series of acts, each which might constitute a separate offence, but which are so closely related that they can be considered one act or a 'single transaction'.[8] 

Whether such allegations are considered a 'single transaction' depends on the period of time over which the acts occurred, the similarity of the acts, the physical proximity of the place where the acts happened, and the intention of the accused throughout those acts.[9]   However, even where such a connection exists, it may still be necessary to charge one or more of the acts separately.  For example, an accused might have a specific defence to one or more of the alleged acts, or the evidence available to prove some acts may be substantially weaker than for others.[10]   Fairness dictates that these acts are set out in separate charges.

There are also offences which require proof of a number of acts in order to establish an offence, even where the individual acts may themselves constitute distinct offences.  These are sometimes called 'continuing offences'.  Examples include allegations of stalking[11] or persistent sexual abuse of a child.[12] 

Exception for 'rolled-up' charges

Another important exception to this rule applies where an accused waives the right to object to a charge that is affected by duplicity by pleading guilty to a 'rolled-up' charge.  

A rolled-up charge can comprise a number of separate offences against the same statutory provision, even where they do not amount to a 'single transaction' (eg where the acts occurred on different occasions).  This is usually done in negotiating a plea of guilty to create an administrative convenience rather than to reduce the culpability of the accused.  

It is important for prosecutors to ensure that the summary of facts presented to the Court at sentencing explains that a rolled-up charge encompasses a number of distinct offences, so that the accused is sentenced accordingly.

Overcoming duplicity in a charge

Duplex charges are not automatically struck out by a court.  Instead, the court will usually require the prosecution to 'elect' which of the separate offences it wishes to proceed with (where there is patent duplicity) or to provide sufficient particulars of the charge to identify the precise instance of offending (where there is latent duplicity).  If the prosecution fails to make an election or identify the precise instance of offending, the Court may act to strike out or 'stay' the charge.

Whatever the case, it is always important that proper particulars are given, so that the accused knows all of the relevant facts, matters and circumstances alleged against them.  A failure to provide such particulars can still result in a charge being struck out.

Conclusion

If you require advice or assistance in drafting charges or criminal prosecutions generally, contact:

Greg Elms
greg.elms@vgso.vic.gov.au
8684 0414

Michael Stagg
michael.stagg@vgso.vic.gov.au
9247 6496

Matthew Carrazzo
matthew.carrazzo@vgso.vic.gov.au
8684 0497

[1] The rule applies equally to the drafting of counts in an indictment, where a matter is prosecuted by the Director of Public Prosecutions in the County Court or Supreme Court.

[2] Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 at 666 per Gleeson CJ.

[3] See Schedule 1 of the Criminal Procedure Act 2009 (Vic).

[4] [2010] VSCA 110 at para [43].

[5] [2013] NSWCCA 204 at paras [31] to [53].

[6] Clause 3(3) of Schedule 1 to the CP Act.

[7] For example, section 52 of the Summary Offences Act 1966 (Vic) provides: "Any person who assaults resists obstructs hinders or delays … any member of the police force or a protective services officer in the execution of his duty under this Act or otherwise… shall be guilty of an offence".  This provision arguably creates a number of distinct offences, rather than a single offence which can be committed in different ways.

[8] Such conduct is sometimes referred to as a 'composite activity'.

[9] Walsh v Tattersall (1996) 188 CLR 77 per Kirby J; R v Khouzame & Saliba [1999] NSWCCA 173; (1999) 108 A Crim R 170; R v Heaney [2009] VSCA 74; Rixon v Thompson [2009] VSCA 84.  It is useful to look at cases of the higher courts to get a flavour for what fits within this exception.  The decision of Ashley JA in R v Heaney and the decision of the Court of Appeal in Rixon v Thompson are good starting points.

[10] See: Rixon v Thompson [2009] VSCA 84 per Maxwell P, Weinberg JA and Kyrou AJA at paras [73]-[77], [89]-[90].

[11] Section 21A of the Crimes Act 1958.

[12] Section 47A of the Crimes Act 1958.