Sweet child o’ mine

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

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

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

The Commission handed down its report in November.

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

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

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

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

The recommendations include:

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

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

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

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

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

Managing serial complainants

Managing serial complainants is a challenge for all public administrators. Dealing with these complainants is resource and time intensive and can pose difficulties if a particular complainant is aggressive or abusive towards staff.

Administrators need to take care in the strategies they adopt to deal with complainants, especially if complainants' behaviour is symptomatic of any underlying disability.

In the recent VCAT decision of Slattery v Manningham City Council, a complainant successfully claimed that the Manningham City Council (Council) had directly discriminated against him on the ground of disability in banning him from all Council buildings, breaching s 44 of the Equal Opportunity Act 2010 (EO Act).

The case is significant because it is one of the first decisions to consider how the test for direct discrimination operates under the EO Act.

Since 1998, Mr Slattery had made thousands of written and verbal complaints to the Council in relation to matters Mr Slattery had identified as 'safety issues'. Many of Mr Slattery's complaints were derogatory or offensive towards Councillors or Council staff. Over a fifteen year period, there were a handful of physical altercations between Mr Slattery and Council staff members. Council estimated that it spent approximately $10,000 per year dealing with Mr Slattery's complaints. In April 2009, the Council imposed the ban on Mr Slattery.

Mr Slattery had a number of diagnosed disabilities, including post-traumatic stress disorder (PTSD), bipolar disorder and a brain injury following a stroke, however has not received treatment for any of these conditions for a number of years. Council had, at one stage, engaged the assistance of a psychiatrist, to formulate strategies for dealing with Mr Slattery.

Senior Member Nihill first considered what constituted unfavourable treatment within the definition of direct discrimination, and whether it was necessary to carry out a comparative analysis to determine if a person has been treated unfavourably because of a protected attribute (in this case, a disability).

SM Nihill's starting point was the Court of Appeal's decision in Aitken v State of Victoria, where the Court of Appeal accepted that the question as to whether a comparative analysis is required under the EO Act remains an unresolved question of law in Victoria.

Following a discussion of helpful case law, interpretation legislation and extrinsic material, SM Nihill concluded that the definition of direct discrimination in the EO Act does not require a comparator (a conclusion also reached in the recent VCAT decision on Victoria Police's beard policy). Rather, what is required is an analysis of the impact of treatment on the person complaining of it. This analysis may be informed by the treatment afforded to others, however, such a consideration is not required under section 8 of the EO Act.

SM Nihill formed the view that Council's maintenance of the ban, preventing Mr Slattery from accessing services in any building owned, occupied or managed by Council, particularly after Mr Slattery requested that the ban be lifted in November 2012, constituted unfavourable treatment.

SM Nihill next went on to consider whether the unfavourable treatment of Mr Slattery was because he had a protected attribute.

The Tribunal heard psychiatric evidence from Dr Farnbach, who had been Mr Slattery's treating psychiatrist. Dr Farnbach gave evidence that as a result of his PTSD and impulse control disorder, Mr Slattery experienced a strong and urgent compulsion to make reports to Council, particularly about public safety and about 'people doing the right thing'. After reports were made, Mr Slattery would experience relief.

SM Nihill concluded, on the basis of Dr Farnbach's evidence that Mr Slattery's tendency to complain compulsively is a symptom of his disabilities, and therefore fell within the definition of disability contained in s 4 of the EO Act.

Given, that Mr Slattery's behaviour in compulsively complaining to the Council, was a result of his disability, and that one of the reasons that Council had imposed the ban was to 'manage' Mr Slattery, SM Nihill concluded that Mr Slattery's disability was a substantial reason for the Council's unfavourable treatment of Mr Slattery, and therefore that Mr Slattery had been the subject of direct discrimination by the Council.

The Council was unsuccessful in arguing that an exception under ss 75 or 86 of the EO Act applied (that is, that it was necessary to impose the ban on Mr Slattery to protect the health and safety of Councillors, Council staff and the wider public).

The question of remedies was left to be discussed by the parties in a compulsory conference.

If you are in the Victorian Government and would like advice on the EO Act or this case, please contact:

Penina Berkovic
Principal Solicitor
t 8684 0226
penina.berkovic@vgso.vic.gov.au

Bruce Chen
Senior Solicitor
t 8684 0425
bruce.chen@vgso.vic.gov.au

High Court tells lawyers to play fair

Play fair and double-check what you send to the other side are the two lessons for litigators coming out of the recent High Court decision of ERA Group v Armstrong.

In the course of discovery in a commercial dispute involving some 60,000 documents, the ERA Group’s solicitors mistakenly provided Armstrong’s solicitors with documents that were confidential and subject to client legal privilege. 

Oops. 

ERA Group’s solicitors then sought return of the material and an undertaking from Armstrong’s solicitors not to use the privileged material in the litigation.  But Armstrong’s solicitors refused to return the documents, arguing that the privilege attaching to the documents had been waived.

The trial judge found for the ERA Group and ordered return of the documents.  But the Court of Appeal sided with Armstrong.  The High Court overturned that decision with a very clear message about lawyers’ professional and ethical obligations to support the proper administration of justice. 

In doing so, it noted that mistakes are more likely to occur in discovery in ‘heavy litigation conducted by large teams of lawyers of varying experience and the indiscriminate use of photocopying’ so the good faith of the parties is paramount in such matters.

The Court noted that the new Australian Solicitor’s Conduct Rules (not yet incorporated in Victoria) require a solicitor to return material which is known or reasonably suspected to be confidential, where the solicitor is aware that its disclosure was inadvertent.

The Court suggested "such a rule should not be necessary," as "in the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications…  It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.”

It is a fundamental principle of legal professional practice that, as lawyers, our duty to the court trumps all of our other duties.  Fortunately, such behavior is rare in government lawyers as they must also follow the Model Litigant Guidelines.  These require government litigants to (amongst other things):

• act fairly in litigation
• not cause unnecessary delay
• keep litigation costs to a minimum.

But this reminder by the High Court to think twice about adopting a win-at-all-costs approach is still a useful read for government lawyers, even just for the reminder to do one last proofread before hitting ‘send’…

If you are in the Victorian Government and would like advice on the ethical obligations applicable to government litigants, please contact:

Andrew Suddick
General Counsel (Litigation)
t 8684 0458
andrew.suddick@vgso.vic.gov.au

10 tips for drafting top witness statements

1. Interview witnesses alone (or with an interpreter only, if necessary).  Otherwise, it is open to suggestion later that there was collusion between witnesses.  It also makes it easier to assess the impression a witness will ultimately give when in court. 
2. Use the first person and the witness’s own words.  The witness may be cross-examined on the statement and needs to be able to understand their own evidence.  Draft the statement in chronological order.  It should tell a story. 
3. Use the past tense – the witness is describing the state of affairs at the time of the relevant incident. 
4. Use short sentences and short paragraphs.  Each paragraph should be numbered and should cover a single point.
5. Where a witness makes a statement in their professional capacity, the statement may state their business address rather than residential address.
6. You generally need to avoid hearsay evidence (that is, evidence based on what someone has told the witness and not of direct knowledge).  You can however include hearsay evidence in witness statements for interlocutory hearings, provided the witness identifies the source of the evidence given.  The best way to avoid including hearsay evidence is to draft the statement so the witness’s evidence is confined to what they actually saw, heard, or smelt.
7. Statements such as ‘I understood’ or ‘I thought’ or ‘I intended’ should be avoided unless state of mind is an issue.  If state of mind is an issue then set out the words of a conversation or describe what the witness saw from which the court can conclude that the witness had the relevant state of mind.
8. Similarly, avoid conclusions in a witness statement.  
• Just describe what the witness did.  The lawyer can ask the court to make the necessary conclusion during argument.  
• For example, rather than ‘I would not have said something like that because it is not written in my notes’, try 'I always take my notebook with me when I meet with a client.  My practice during any meeting with a client is to write in my notebook any recommendations that I make to a client about the next steps they should take'.
9. Where possible, conversations should be expressed in the actual words used by the relevant people.  
• For example: On 24 December 2012, I met with Mr Claus at his business address, and we had a conversation to the following effect: ‘Rudolph would be available to work this week’. 
• Otherwise, use words describing the nature of the recollection of the witness, for example: I met with Mr Claus on 24 December 2012 at his business address.  I do not recall the actual words used.  I asked him a number of questions.  One thing I asked him about was the staff numbers he expected over the holiday period.  In his answer, he referred to Rudolph, Dasher and Dancer as employees who were confirmed to work the following week. 
10. A witness statement needs to be signed by the person who made the statement, but does not need to be witnessed by someone else.  Australian legal practitioners, plus the following categories of Victorian public servants, are able to witness affidavits and statutory declarations:
• Non-executive employee grades 2 to 6 (inclusive) and Senior Technical Specialist
• Solicitor, Senior Solicitor, Principal Solicitor and Principal Solicitor (Team Leader)
• Executive (Level 1, Level 2 and Level 3)
• Principal Scientist or Principal Scientist Level PS-1 and PS-2
• Science A to D (inclusive)
• Forensic Officer Level 2 to Level 7 (inclusive)
• Child Protection Practitioner CPP 2 to CPP 6 (inclusive)
• Children Youth and Families CYF 2 to CYF 6 (inclusive)
• Housing Services Officer HSO
• Senior Medical Adviser SMA
• Disability Development and Support Officer DDSO4 to DDSO9 (inclusive)
• Custodial Officers COG4 to COG6 (inclusive).

If you are in the Victorian Government and want more information about drafting witness statements or litigation strategy, please contact:

Martin Pike
Principal Solicitor
t  8684 0413
martin.pike@vgso.vic.gov.au

8 things you need to know about the Open Courts Bill

The Open Courts Bill kicks off in December 2013, popping all the suppression order powers of the Victorian courts and VCAT into one convenient piece of legislation.

In case you don’t know, a suppression order is a court order restricting publication or other disclosure of information in connection with a court proceeding.  A closed court order is an order restricting who can be in the courtroom during a proceeding.

Whilst it is primarily a consolidation of the current law, there are some important differences for Victorian litigators to keep in mind:

1. The Bill creates express presumptions in favour of disclosure of information and holding hearings in open court.  A court or tribunal must have regard to these presumptions when considering whether to make a suppression order or a closed-court order.
2. The Bill expressly provides that that suppression and closed court orders can only be made in specified limited circumstances where there is a strong and valid reason for doing so.
3. Where a suppression order is made, the information that is restricted from disclosure must be limited to that which is necessary to achieve the purpose for which the order is made.  The information to which the order relates must also be clearly stated in the order.  Also, the order must be limited to achieving the purpose for which it is made.
4. Suppression orders must be limited in their duration.  A court or tribunal may only make an order for a fixed or ascertainable period, or until the occurrence of a specified future event.  If it is possible that the future event will not occur, the order also must contain an expiry period of less than five years.
5. Before making a suppression order, a court or tribunal must be satisfied on the basis of sufficient credible information that the applicant has satisfied the grounds for making a suppression order.  
6. The Bill expressly protects the right for news organisations to be heard on and contest an application for a suppression order.  News organisations are also given express statutory rights to seek review of orders that are made.
7. The Supreme Court does retain its powers to make suppression and closed-court orders in the exercise of its inherent jurisdiction, but subject to:
• The presumptions in favour of disclosure and public hearings; and 
• The procedural requirements regarding duration, limited scope, evidentiary basis and review.
8. The Bill proposes grounds on which a suppression order may be made.  These include:
• Preventing prejudice to the proper administration of justice
• Preventing prejudice to national or international security
• Protecting the safety of any person
• Avoiding undue distress or embarrassment to a party to or witness in criminal proceedings involving a sexual offence or family violence offence
• Avoiding undue distress or embarrassment to a child who is a witness in any criminal proceeding.

This consolidates the existing grounds, except for the last two, which are worthy additions.

If you are in the Victorian Government and want more information about suppression orders or the Open Courts Bill, please contact:

Dianna Gleeson
Acting Managing Principal Solicitor
t 8684  0404
dianna.gleeson@vgso.vic.gov.au

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

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

Facts and procedural background

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

The worker claimed the reasons of the panel were inadequate.

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

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

The High Court agreed.

Certiorari and its availability

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

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

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

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

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

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

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

Standard of reasons

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

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

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

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

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

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

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

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

Consequences for Victorian government decision-makers

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

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

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

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

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

Water law changes in the pipeline

The Water Act 1989 (Vic), one of the longest Acts in the statute book, is under review.  Changes are not expected to significantly impact water users, however, it will change the way the Government manages water so it is important for government officers who work in areas affected by water law or the emergency services (as the review affects flood mitigation infrastructure) to keep abreast of the changes.

The Act provides the framework for allocating surface water and groundwater across Victoria.  It details the Crown’s entitlements to water and private entitlements to water from all rivers, streams and groundwater systems in Victoria, providing Water Authorities with bulk entitlements to water for urban supply or irrigation.  Authorities allocate a volumetric water entitlement to licenced individuals or companies for commercial or irrigation purposes.  It also gives individuals the right to take and use water for domestic and stock purposes.

The Act was developed over 20 years ago when the pressures on the State's water resources were very different.  Its predecessor was enacted in the 1800s to allow the development of irrigation in northern Victoria.  Environmental considerations are a much more recent addition.  In particular, in 2005, the Act pioneered the use of the environmental water reserve, which was designed ‘to set aside a share of water in rivers and aquifers across the State for the environment’. This was the first time that rivers and aquifers gained a legal right to a share of their own water.

The purpose of the review of the Act is to streamline the legislative framework for water management and use.  This includes considering whether changes are needed to implement the Commonwealth's Murray-Darling Basin Plan, released in November 2012.  The review will also implement new water policies adopted by the Government, including the Living Melbourne Living Victoria urban water plan and the land use change policy developed through the Western and Gippsland regional sustainable water strategies.

Currently, we are waiting with baited breath for the release of a discussion paper outlining proposed reforms to the Act and an exposure draft.  An expert panel established by the Minister is preparing this.  A six-week consultation process will occur following the release of the paper.

The discussion paper will consider the following issues:

• Whether the way water resources are managed and allocated can be simplified, without having an adverse impact on entitlements.
• Whether public dams that could present a hazard if they fail should be licensed in the same way as private dams.
• Whether any further refinements to the water corporation governance reforms of 2012 are required.
• Whether the current water service delivery functions and powers of water authorities can provide sustainable and integrated water services.  This includes ensuring the rights to alternative water sources are clear enough to enable greater use of recycled water and stormwater.
• Whether the functions and powers that aim to protect and improve river health, floodplain management and regional drainage are sufficient.  This includes making legislative changes needed to implement the government's response to the Environment and Natural Resources Committee inquiry into floodplain mitigation infrastructure in Victoria, some of which are discussed in the recently released Government’s Response to this inquiry.

If you are in the Victorian Government and require advice about how the water law reforms could affect your area, please contact:

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