Transforming procurement

In February 2013, the Victorian Government Purchasing Board introduced a new policy framework designed to support a more strategic and efficient approach to procurement.  As part of this reform, the VGPB adopted five new policies, intended to replace more than 30 policies previously in place.  The reform seeks to reposition procurement as a core business function for departments.

Of course, the procurement profile of each department is quite different.  Departments were given an extended period to transition to the new framework and they have progressively done so.  As of 1 January 2015 all departments had transitioned to the new policy framework. As part of these reforms, each department now has a Chief Procurement Officer.  

VGSO have met with a number of these CPOs to discuss the challenges they have faced in implementing the new policies and improving procurement practices and outcomes across their departments.  While their experiences varied, there were a number of common themes.  A key concern was the need to increase capability in various areas.  These areas include:

• understanding probity considerations, including conflicts of interest;
• preparing sourcing documentation; including the importance of clear evaluation criteria and setting clear mechanisms for evaluation;
• increasing understanding of issues encountered in negotiation and award of contracts including how to drive value and the inclusion of appropriate price review clauses;
• risks involved in incorporating external documents including specifications into the final contract; and
• the importance of clear, measurable and achievable KPRs with clear consequences. 

Last year, we held a seminar dealing with this final point: 'Managing Performance under Contracts'.  During August, our annual Projects and Procurement Practice Group seminar will focus on the role of specifications at various stages of the procurement process and how to ensure that it becomes a robust part of your contractual suite.

Our August seminar 'Metamorphosis: The evolution of the specification' has already booked out, however we will be live tweeting. You can follow us @VicGovSolicitor and join the conversation using #vgsolive.

For legal assistance regarding procurement please contact:

Julie Freeman

Assistant Victorian Government Solicitor

9947 1404

Sarah Daniell

Managing Principal Solicitor

9947 1401

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

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

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

Facts of case

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

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

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

Principles of bias

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

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

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

Ms Isbester had alleged that:

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

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

Joint judgment

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

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

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

Their Honours held at [43] that:

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

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

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

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

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

Jennifer Butler

Principal Solicitor

8684 0423

Greg Elms

Managing Principal Solicitor

8684 0414

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

Australian Federalism - Competitive, Coordinate, Cooperative, Coercive or … Confusing?

Illustration: Mallory Brangan

The first Issues Paper in the Reform of the Federation White Paper process canvassed three approaches to federalism beginning with the letter 'c'  ̶  competitive, coordinate and cooperative. The paper also acknowledged the potential for the cooperative to morph into the coercive. According to the latest release from the Federation White Paper taskforce, Australia has a 'confusing' federalism  ̶  a problem the White Paper aims to address.

A story about a leak and a draft

Since our previous blog entry on the Reform of the Federation White Paper, the taskforce has released four Issues Papers about the allocation of roles and responsibilities between the Commonwealth and States. These papers were designed to outline key issues before coming up with policy options in the Green Paper on how to reduce duplication, limit wasteful expenditure and end the 'blame game' between different levels of government in Australia. However, a series of potentially damaging 'leaks' from the Green Paper, has led the Department of Prime Minister and Cabinet to publish a draft Discussion Paper ahead of a formal Green Paper.

How does the draft Discussion Paper hope to reform the Federation?

The draft Discussion Paper is a consultation document containing a number of policy proposals. Although the paper opens with the optimistic assessment that 'Australia's Federation has worked well since 1901', the taskforce has identified a particular need for improvements in how we manage health, education, housing and homelessness. There are also separate proposals for improving the Federation's governance arrangements and financial relations.

The draft policy proposals were arrived at after consultation with the community, states and territories, local government, and the Prime Minister's recently appointed Expert Advisory Panel. The paper stresses that the proposals are merely options; they are not necessarily mutually exclusive, listed in order of preference or approved by all levels of government. The proposals also vary in magnitude and we are cautioned not to expect a 'big bang' moment in federation fixing.

In general terms, the options involve either one level of government 'getting out of the way' while the other adopts full responsibility for a policy area, improved coordination among governments, or something in between.

A principled and practical approach

A key weakness of Australian Federalism, according to the draft Discussion Paper, is the ad hoc approach we take to deciding who does what, based on discrete events or priorities of the Government of the day. The taskforce advocates that we instead adopt a principled way forward.

Interestingly, the draft Discussion Paper has replaced the principles set out in the White Paper's Terms of Reference with a new set of 'practical' values, including the decree: 'be fair'. It seems that the new criteria will be used to drive a very pragmatic approach to how federation reform can best drive improvements in community wellbeing, with a focus on the 'main game' of effective service delivery.

Will the real green paper please stand up?

It is unclear how far the real Green Paper will depart from the draft Discussion Paper. However, we can expect to see the final product by the end of the year and in light of the upcoming COAG leaders' summit, perhaps in the very near future.

The process will wrap up in 2016 with a series of suggested policy preferences published in the White Paper. Based on the draft proposals, we now know that constitutional amendment is not on the table.

Finally, given the underlying role played by financial relations in the present state of 'confusion', the Reform of the Federation White Paper will track closely with the White Paper on the Reform of Australia's Tax System. As many of you know, the Commonwealth raises far more revenue than is required to meet its constitutional responsibilities, while States face a significant funding shortfall. For his part, the Federal Treasurer has recently indicated a desire for all levels of government to take responsibility for their own spending requirements. However, if the White Paper supports a policy preference for returning full responsibility to States and Territories in areas like health and education, funding the 'Federation for our future' will be a significant challenge.

VGSO's experts in constitutional law and intergovernmental relations can help Victorian government bodies if you require advice on engaging with the White Paper process.

Rachel Amamoo

Managing Principal Solicitor

8684 0899

rachel.amamoo@vgso.vic.gov.au

Sky Mykyta

Managing Principal Solicitor

8684 0220

sky.mykyta@vgso.vic.gov.au

Native Title Round Up

With NAIDOC Week fresh in our minds, VGSO's Land, Planning and Environment Team thought it timely to provide a round up of recent developments in Native Title in Victoria.

1. ALRC recommends significant Native Title Act reforms 

The Australian Law Reform Commission's report on the Native Title Act 1993 includes recommendations that could create significant change in the jurisdiction if the Federal Government passes laws to implement them. The report, 'Connection to Country', was tabled in Parliament on 4 June 2015. Its key recommendations include amending the Act so that claimants would not have to prove that traditional laws and customs have been observed by each and every generation since sovereignty, nor that the society defined by the laws and customs has continued in existence since before sovereignty. The report also recommends that the Act explicitly acknowledge that traditional laws and customs may adapt, evolve or otherwise develop, and that native title rights be capable of including commercial trading rights. The Report contains 30 recommendations overall. The Native Title Act applies nationally.

2. Northern Victorian Claim Ends After 15 Years

The Wadi Wadi, Barapa Barapa, Wamba Wamba native title claim was struck out by the Federal Court on 15 June 2015. It was struck out on the basis that the claim had not progressed for some time, and in the present circumstances the three claimant groups were not in a position to move the claim forward in an efficient way. The Court noted that the strike out was procedural, and did not reflect on whether or not native title rights exist in the area. The groups are still able to file a new native title claim, or pursue rights and recognition under the Aboriginal Heritage Act 2006 or Traditional Owner Settlement Act 2010. The claim covered areas along the Murray River and extended south of Swan Hill.

3. Gunaikurnai People: New Wilson's Promontory claim registered

The Gunaikurnai People have made a new native title claim over Wilson's Promontory, which has now been entered on the National Register of Native Title Claims. This triggers certain procedural entitlements under the Native Title Act in respect of any projects over Crown land in the claim area that would affect native title (a 'future act'). The claim includes Corner Inlet, extends north inland towards Berry's Creek, and west to Point Smythe. It also includes islands off Wilson's Promontory. The Gunaikurnai People lodged the claim in the Federal Court on 9 December 2014. The Native Title Registrar's delegate was satisfied that the claim met criteria under the Native Title Act, and accepted the claim on the Register of Native Title Claims on 20 April 2015.

4. Victorian alternative to future act regime commences for Dja Dja Warrung

The Dja Dja Wurrung Clans Aboriginal Corporation had the first ever 'Land Use Activity Agreement' commence in late 2014. This triggers procedural entitlements and requirements under Part 4 of the Traditional Owner Settlement Act 2014 that particular persons need to follow when carrying out certain activities in the agreement area. The agreement covers a defined area in the vicinity of Bendigo, Central Victoria. Examples of activities range from clearing Crown land, to the grant of mineral tenements, to the sale of Crown land. Agencies involved with activities covered by the agreement in that area should familiarise themselves with the relevant requirements. The agreement is publicly available on the Department of Justice and Regulation website. 

For enquiries regarding Native Title and related matters, please contact:

Mary Scalzo

Managing Principal Solicitor

9947 1419

James Stephens

Principal Solicitor

9947 1422

UPDATED: Marriage Equality in the USA, but what's the constitutional situation here in Oz?

UPDATE

Recently there have been calls for a plebiscite or referendum on marriage equality (the difference between the two is usefully described here. As we've explained in this post, the High Court has found that Commonwealth's marriage power is broad, leaving the decision on how to characterise marriage in Australia to the federal Parliament. A referendum would have to alter the Constitution, and thus constrain the marriage power in some way. Constitutional referendums rarely succeed in Australia because section 128 requires BOTH a majority of voters overall AND a majority of States to vote in favour of the change. It is possible to have an overall majority but to have minorities in 3 States with the result that the change is defeated.
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Unless you've been hiding under a rock, you will know that last week the Supreme Court of the United States (or SCOTUS) found that the US Constitution requires all US States to license and recognise marriages between two people of the same sex.

Facebook even had a special function where you could put a "rainbow" filter over your profile pic. The effect of logging into social media was roughly this:

Source: unknown

Justice Kennedy delivered the majority judgment in Obergefell v Hodges, and he didn't hold back:

"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."

And this:

"Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect - and need - for its privileges and responsibilities."

The US Constitution contains a defined Bill of Rights, but the Fourteenth Amendment also contains a "Due Process Clause", which provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The "liberties" protected by that clause are broader than those set out in the Bill of Rights. Elegantly explaining how this clause leaves open the potential identification and recognition of "new" fundamental rights, the Court said,

"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning."

In the past, the Due Process Clause was used to overturn bans on interracial marriage in the aptly named case Loving v Virginia. The Court also relied on the Fourteenth Amendment's "Equal Protection Clause" which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The Court noted that the two clauses "are connected in a profound way, though they set forth independent principles." Ultimately, the decision was in the most emphatic terms:

"The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them."

OK, so what about here in Australia?

The Australian Constitution, as many of you know, has a few fundamental differences from the US Constitution. For one thing, no Bill of Rights. For another, no due process or equal protection clause. And finally, our Constitution specifically allocates power to legislate about "marriage" to the Commonwealth. While this power is held concurrently with the States (meaning that the States can also legislate about marriage), if the Commonwealth chooses to legislate about marriage to confine the institution to persons of opposite sex (which it did back in 2004), any State or Territory legislation that seeks to provide marriage for same-sex couples is invalid (due to the operation of s 109 of the Constitution).

Section 109 is a supremacy clause - it makes clear that, where there is Commonwealth and State legislation on the same topic and they are in conflict, the Commonwealth law prevails.

Some of you may remember the ACT marriage case, which the High Court decided back in 2013, and which invalidated the Marriage Equality (Same Sex) Act 2013 (ACT).

Although it doesn’t say in terms that same-sex marriage is prohibited, the High Court found that the Commonwealth Marriage Act "necessarily contain[s] the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia."

The High Court rejected an argument that "marriage" means "marriage as it existed as a matter of law at the time of Federation" so there is no constitutional impediment to the Commonwealth amending the Marriage Act 1961 (Cth) to allow for same-sex marriage in Australia.

The upshot is that, in Australia, we have chosen to leave the protection of human rights in the hands of our parliaments. By contrast, in their Constitution, the United States chose "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." As described in last week's decision, "The dynamic of our [US] constitutional system is that individuals need not await legislative action before asserting a fundamental right."

In a 5:4 decision, the US Supreme Court emphatically ended the marriage equality debate in America. The right of same-sex couples to marry is now constitutionally recognised and only a constitutional amendment could reverse the situation. As in Australia, such a path is a difficult one.

Victorian Government clients seeking advice on constitutional or human rights issues can contact:

Sky Mykyta

Managing Principal Solicitor

8684 0220

sky.mykyta@vgso.vic.gov.au

UPDATED: Have you read the forecast? Changes ahead in the Land, Planning and Environment scene

UPDATE: Since this blog was first published on 19 June 2015, the Planning and Environment Amendment (Recognising Objectors) Act 2015 was given royal assent on 11 August 2015.
At this stage the Act has not come into operation. Unless it is proclaimed by 14 April 2016 it will become operative on that date.  The bill and the Act as assented to are in identical terms.
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There are changes afoot in the Land, Planning and Environment scene, including amendments to both the Act and the Regulations and a new levy for metropolitan developments valued over $1 million.

CHANGES TO THE PLANNING AND ENVIRONMENT ACT 1987

A new bill has been introduced into Parliament that will permit VCAT and responsible authorities to consider the number of objectors to a permit application when deciding whether a proposed use or development may have a significant social effect.

Decision-makers must already consider whether a use or development may have a significant social effect, however the number of objectors to a permit application was previously not specifically identified as a relevant consideration.  The proposed amendments clarify that the two key decision-makers in the planning permit process, the responsible authority or VCAT on review, may take the number of objectors into consideration before a decision is made, if the circumstances require.

The Minister for Planning, Richard Wynne, stated that the new requirement 'is likely to be particularly relevant in circumstances where a proposal may reduce access to or enjoyment of community facilities or services or adversely affect public health and safety.'  He stated that the number of objectors and the consistency of their views may demonstrate a section of the scale of a social effect on the community.

As is the case now, an objector will need to put their concerns in writing and state how they would be affected by the grant of a permit.

The Minister  also clarified that "social effects" may include matters such as the demand for use of community facilities and services, access to social and community facilities, choice in housing, shopping and recreational leisure services, community safety and amenity and the needs of particular groups in the community.

METROPOLITAN PLANNING LEVY

A new levy on planning permit applications for projects valued at over $1 million within Melbourne metropolitan areas takes effect from 1 July 2015.  Relevantly no exemptions apply for State Government Agencies.

The levy will be payable to a relevant responsible authority or planning authority and will be administered by the State Revenue Office (SRO).  Applicants must first apply for a Metropolitan Planning Levy (MPL) Certificate from the SRO and pay the MPL before making a planning permit application.  The rate for the MPL has been set in essence, at $1.30 per $1000 for affected projects.

The levy is payable where the estimated cost of  the development exceeds the threshold amount, which is currently $1 million for the 2015-2016 financial year.  Moving forward, this threshold amount will be indexed by the Consumer Price Index (CPI). The SRO is to publish the CPI adjusted threshold amount annually.

NEW PLANNING AND ENVIRONMENT REGULATIONS

Rounding up a sweep of recent changes and drawing seven months of public consultation to a close, new Planning and Environment Regulations 2015 came into operation on 16 May 2015.

Of relevance to State agencies that own, develop or manage land, three new forms have been inserted for giving notice of a proposal and decision to amend or end a section 173 Agreement.  As such, all users of Victoria's planning system will need to update their systems and review the new forms.  To consider the effect of these changes on your Department or agency, contact:

Eliza Bergin
Principal Solicitor
8684 0267
eliza.bergin@vgso.vic.gov.au

Juliette Halliday
Managing Principal Solicitor
t 8684 0299
juliette.halliday@vgso.vic.gov.au

Smile, you could be on 'body worn camera'

Take a closer look at all the gadgets and equipment worn by your local police officer and you might notice a small vest-mounted video camera attached to his or her lapel.  The camera,  called a body worn camera (BWC), records police interactions with the public and they may soon be worn by front line officers across the country.

According to news reports, BWCs are popular and have been trialled in every Australian state. For example:

• In the Northern Territory a reported 40 front line officers are officially trialling the equipment, and the Northern Territory Police Association estimates that three-quarters of their force have already bought and are using personal cameras;
• In Queensland, the Palaszczuk government reportedly has committed significant funds for BWCs;  
• In Victoria, Frankston police trialled 22 BWCs in 2013-2014, and Victoria Police is currently evaluating the project in anticipation of expansion.  

Even in the US, President Obama has reportedly asked Congress for $263 million over three years for 50,000 BWCs across the country following the tragic events in Ferguson, Missouri. It wouldn't be surprising to see the use of BWC's extend beyond policing to other areas of enforcement - perhaps parking inspectors, park rangers or fisheries officers keen to document their encounters on duty.

What are their key advantages?

1. Potential reduction in violence.

There is little data on the efficacy of BWCs, but what exists is positive.  The most widely cited study tracked their use by police in Rialto, California.  There, Cambridge researchers found that the use of BWCs decreased incidents of the use of force by 59% and complaints against police by 87%.

Although limited, the study suggests that people are less willing to resort to violence and that police behaviour improves when both parties know they are being recorded, and it also appears to deter members of the public from bringing spurious complaints.

2. Use as an evidentiary tool.

For investigating and prosecuting agencies, the BWC is no doubt appealing as an evidentiary tool.  Clear, verifiable footage captured by BWCs could reduce hours in court examining and verifying the veracity of oral accounts.  This in turn would reduce the public resources spent on each trial and enable courts to hear more cases in less time.

However, investigating agencies using or considering using BWC footage as evidence will need to take into account a range of factors including:

• Admissibility requirements. The admissibility of footage captured by body worn cameras will generally be governed by the principles which apply to the admissibility of evidence in general.  In Victoria these principles are set out in the Evidence Act 2008, which generally provides that evidence is admissible if it is relevant to the issues in dispute between the parties and either is not hearsay or, if hearsay, falls within an exception to the hearsay rule.  However, depending on the jurisdiction in which the dispute is brought, other provisions may be applicable: see for example s 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.
• Pre-trial disclosure requirements. Agencies will need to be equipped to hand over relevant footage, or at least have facilities for defence lawyers to view the footage in a secure setting.  Whether interested parties, including the media, can access footage when no prosecution is on foot will be another matter for determination.

Other legal considerations

Privacy 

To date, no specific Victorian legislation removes the statutory privacy obligations of police and other agencies using BWCs.  Agencies intending to use BWCs should therefore ensure that their use complies with legislation regulating the collection, use and disclosure of personal and health information, and in particular the Charter of Human Rights and Responsibilities Act 2006, the Privacy and Data Protection Act 2014 (PDP Act) and the Health Records Act 2001. Notably, the law enforcement exemption to the PDP Act, if applicable, would allow Victoria Police to collect, use, disclose and restrict access to information recorded by BWCs when reasonably necessary to carry out law enforcement functions. In some circumstances the Surveillance Devices Act 1999 may also apply. Amendments to privacy notices are likely to be required.

The law also restricts publication of personal and sensitive information including details of sexual assault, family violence victims and children involved in court proceedings, and information that could prejudice the fairness of any pending or in progress trials.  Agencies will need to be especially careful to identify and appropriately deal with personal information of third parties that is captured in background events and peripheral conversations.

Data retention

Information collected via BWCs must be securely stored and otherwise dealt with in accordance with legislation, including the Public Records Act 1973 and the PDP Act Parts 4 and 5 as applicable.  From a practical perspective, continuous recording could mean enormous data storage costs, so agencies will need to develop policies on when to turn the cameras on and off. For example, it has been reported that the practice in the Northern Territory is to turn on the BWC only when police exercise their powers or 'make customer contact or custody'.

For further information on these issues please contact members of our Policing Practice Group or Technology and Data Protection Practice Group:

Louise Jarrett
Managing Principal Solicitor
t 9247 6798
louise.jarrett@vgso.vic.gov.au

Grahame Best
Solicitor
t 9247 6425
grahame.best@vgso.vic.gov.au

Deidre Missingham
Senior Solicitor
t 8684 0483
deidre.missingham@vgso.vic.gov.au