An employer in a Federal Court proceeding was recently forced to defend an attempt by a dismissed employee to have a number of private text messages - allegedly left on a work-issued mobile phone after it was issued to another employee - admitted into evidence.
Shea v TruEnergy Services Pty Ltd concerned an employee who had been dismissed by her employer, TruEnergy, on the grounds that her position had become redundant. The employee brought proceedings alleging that she had actually been dismissed for exercising a workplace right by making a number of complaints, and that her dismissal therefore constituted adverse action within the meaning of the Fair Work Act 2009 (Cth).
One of the employee's allegations during the course of the trial was that a culture of lewdness and sexual harassment prevailed in the workplace and that it was condoned by the managing director. She sought to have admitted into evidence a number of mobile phone text messages, apparently between the managing director and a former general counsel at TruEnergy with whom he was allegedly having an affair. Their content was, it was alleged, of a sexually explicit nature, and the employee submitted that this established the managing director's propensity to use lewd and sexualised language in the workplace.
The employee obtained the text messages via another former employee of TruEnergy who allegedly had been given a work-issued mobile phone that had not been cleared of its messages. That former employee still had possession of the phone and had failed to return it following the cessation of her employment.
TruEnergy sought to resist the admission of the text messages as evidence on the grounds that they were not relevant to any issue in the dispute, and in any event should be excluded as they were improperly or illegally obtained.
Justice Dodds-Streeton of the Federal Court agreed with TruEnergy and refused the admission of the evidence, finding that not only were the text messages 'intensely personal' communications, they were not relevant to any issue in the litigation. Her Honour also rejected the submission that, even if their contents could be described as 'lewd', it did not follow that the managing director would use such language in the workplace. Further, the messages were inadmissible due to the irregular or improper manner in which the employee had obtained this confidential material.
Although the contents of the mobile phone in this instance was held not to be admissible, this case serves as an important reminder to departments and agencies to ensure that employer-issued IT hardware, such as mobile phones and laptops, is properly wiped prior to being issued to a new employee, and that all equipment issued to an employee is recovered and retained when that employee leaves.
The case is also a reminder that, when it comes to evidence, relevance is still king. Even though litigators today have access to so much more information on phones, computers and social media, it's only going to be admitted into evidence if it is relevant to issues that the court or tribunal have to decide. In this sense, this case is just an example of old principles being applied to new (and fantastically salacious) facts.
If you are in the Victorian Government and you are thinking about sexting from a work phone, how about you first seek advice from:
Katie Miller
Managing Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au
Retta Berryman
Trainee Solicitor
t 8684 0468
retta.berryman@vgso.vic.gov.au
Updates on legal developments by the Victorian Government Solicitor's Office
Friday, 28 February 2014
Wednesday, 19 February 2014
Victoria leads the way in regulatory impact analysis (but there is room for improvement!)
A recent parliamentary committee inquiry into the Regulatory Impact Statement (RIS) process has found that the Victorian system of regulatory impact analysis is highly regarded across Australia and on par with leading practice internationally.
Regulatory impact analysis is the process by which certain regulation proposed to be introduced through subordinate legislation is subjected to scrutiny. It involves an assessment of whether the regulation is necessary, and whether it is in the least burdensome and most cost-effective form possible. The rationale behind the process is to encourage the testing of alternative regulatory approaches and to require consultation with the public and stakeholders to make sure all relevant information is obtained to assist good decision making.
The types of subordinate legislation that are subject to regulatory impact analysis include regulations, statutory rules, court rules, orders in council and codes of practice. The threshold set by the Subordinate Legislation Act 1994 for when a RIS needs to be prepared is that the piece of subordinate legislation is likely to impose 'a significant economic or social burden on a sector of the public.'
A similar scrutiny process - a business impact assessment (BIA) - now also applies to certain primary legislation. The threshold for when a BIA is required is that the legislative proposal (ie a Bill) has 'potentially significant effects for business and/or competition in Victoria.' BIAs are based on the same methodology as the RIS process but are not governed by legislation; rather, the content and processes of BIAs are agreed by Cabinet and set out in the Victorian Guide to Regulation.
The Inquiry into the Regulatory Impact Statement Process (Inquiry) conducted by the Environment and Planning Legislation Committee (Committee) concluded that although there was some evidence that the RIS process is perceived to be overly burdensome, time consuming and costly, the benefits of conducting regulatory impact analysis outweigh the costs. In addition, the weight of evidence put to the Committee indicated that the Victorian system is working well and the rigour and standard of analysis of RISs produced in Victoria is higher than in other jurisdictions.
However the Inquiry did find that there are still ways in which the system can be made more effective and the Committee made a number of recommendations as to how the RIS process in Victoria can be improved. Four key areas flagged for improvement are outlined below.
The Committee found that Victorian departments are engaging consultants to prepare RISs much more frequently than in other jurisdictions. In 2012-13, 77 percent of Victorian RISs and BIAs were prepared either wholly or partially by consultants. Evidence before the Inquiry suggested widespread and consistent use of consultants can limit the accrual of skills, expertise and experience within the department or agency. It also risks distancing the regulatory process from the policy-making process, which is contrary to the rationale behind the RIS system.
The Committee concluded that consultants have an important role in regulatory impact analysis in terms of advising departments on technical matters relating the regulatory proposal. However, it recommended that departments should endeavour to develop their own in-house skills with the aim of building the capacity of the department to undertake the bulk of the non-technical aspects of regulatory impact analysis. To help facilitate this, the Committee also recommended a number of improvements to Victorian Guide to Regulation to better support departments and local councils.
Although many of the steps involved in the BIA process are similar to those in the RIS process, the 'threshold' test for a BIA is different and significantly narrower than for a RIS. To make the BIA process more effective, the Committee recommended that the threshold test for when a BIA is required be changed to bring it into line with the RIS threshold, and that the term 'business impact assessment' be replaced with the more accurate term 'legislative impact assessment.'
At present, the oversight body for the regulatory impact analysis system is the Victorian Competition and Efficiency Commission (VCEC) which is attached to the Department of Treasury and Finance. The VCEC provides the final independent assessment of whether RISs and BIAs are compliant with their requirements.
The Committee found that leading practice suggests oversight bodies with a greater degree of independence are likely to operate with more objectivity and transparency in implementing regulatory impact analysis requirements. Accordingly, the Committee made two recommendations: First, that the Victorian Auditor-General conduct bi-annual evaluations of the VCEC's assessments of RISs and BIAs; and second, that the VCEC be established as a fully independent body reporting to the Parliament.
Planning scheme amendments are currently exempt from the RIS process, largely because a requirement to prepare an RIS for these amendments would create duplication of existing assessment and consultation requirements under the Planning and Environment Act 1987 and potentially increase unnecessary delay.
However, the Committee found that the rigorous cost-benefit analysis required by the RIS process has the potential to improve policy making in all areas, including in the planning system. As such, the Committee recommended that a requirement for a cost-benefit analysis be introduced for any significant changes to a planning scheme.
If you are in the Victorian Government and would like more information about this report, please contact:
Retta Berryman
Trainee Lawyer
retta.berryman@vgso.vic.gov.au
t 8684 0468
Regulatory impact analysis is the process by which certain regulation proposed to be introduced through subordinate legislation is subjected to scrutiny. It involves an assessment of whether the regulation is necessary, and whether it is in the least burdensome and most cost-effective form possible. The rationale behind the process is to encourage the testing of alternative regulatory approaches and to require consultation with the public and stakeholders to make sure all relevant information is obtained to assist good decision making.
The types of subordinate legislation that are subject to regulatory impact analysis include regulations, statutory rules, court rules, orders in council and codes of practice. The threshold set by the Subordinate Legislation Act 1994 for when a RIS needs to be prepared is that the piece of subordinate legislation is likely to impose 'a significant economic or social burden on a sector of the public.'
A similar scrutiny process - a business impact assessment (BIA) - now also applies to certain primary legislation. The threshold for when a BIA is required is that the legislative proposal (ie a Bill) has 'potentially significant effects for business and/or competition in Victoria.' BIAs are based on the same methodology as the RIS process but are not governed by legislation; rather, the content and processes of BIAs are agreed by Cabinet and set out in the Victorian Guide to Regulation.
The Inquiry into the Regulatory Impact Statement Process (Inquiry) conducted by the Environment and Planning Legislation Committee (Committee) concluded that although there was some evidence that the RIS process is perceived to be overly burdensome, time consuming and costly, the benefits of conducting regulatory impact analysis outweigh the costs. In addition, the weight of evidence put to the Committee indicated that the Victorian system is working well and the rigour and standard of analysis of RISs produced in Victoria is higher than in other jurisdictions.
However the Inquiry did find that there are still ways in which the system can be made more effective and the Committee made a number of recommendations as to how the RIS process in Victoria can be improved. Four key areas flagged for improvement are outlined below.
Making the RIS process more efficient by increasing departmental involvement
The Committee found that Victorian departments are engaging consultants to prepare RISs much more frequently than in other jurisdictions. In 2012-13, 77 percent of Victorian RISs and BIAs were prepared either wholly or partially by consultants. Evidence before the Inquiry suggested widespread and consistent use of consultants can limit the accrual of skills, expertise and experience within the department or agency. It also risks distancing the regulatory process from the policy-making process, which is contrary to the rationale behind the RIS system.
The Committee concluded that consultants have an important role in regulatory impact analysis in terms of advising departments on technical matters relating the regulatory proposal. However, it recommended that departments should endeavour to develop their own in-house skills with the aim of building the capacity of the department to undertake the bulk of the non-technical aspects of regulatory impact analysis. To help facilitate this, the Committee also recommended a number of improvements to Victorian Guide to Regulation to better support departments and local councils.
Bringing the BIA process into line with the RIS process
Although many of the steps involved in the BIA process are similar to those in the RIS process, the 'threshold' test for a BIA is different and significantly narrower than for a RIS. To make the BIA process more effective, the Committee recommended that the threshold test for when a BIA is required be changed to bring it into line with the RIS threshold, and that the term 'business impact assessment' be replaced with the more accurate term 'legislative impact assessment.'
Independent quality assessment and compliance monitoring
At present, the oversight body for the regulatory impact analysis system is the Victorian Competition and Efficiency Commission (VCEC) which is attached to the Department of Treasury and Finance. The VCEC provides the final independent assessment of whether RISs and BIAs are compliant with their requirements.
The Committee found that leading practice suggests oversight bodies with a greater degree of independence are likely to operate with more objectivity and transparency in implementing regulatory impact analysis requirements. Accordingly, the Committee made two recommendations: First, that the Victorian Auditor-General conduct bi-annual evaluations of the VCEC's assessments of RISs and BIAs; and second, that the VCEC be established as a fully independent body reporting to the Parliament.
Recommended change to the planning system
Planning scheme amendments are currently exempt from the RIS process, largely because a requirement to prepare an RIS for these amendments would create duplication of existing assessment and consultation requirements under the Planning and Environment Act 1987 and potentially increase unnecessary delay.
However, the Committee found that the rigorous cost-benefit analysis required by the RIS process has the potential to improve policy making in all areas, including in the planning system. As such, the Committee recommended that a requirement for a cost-benefit analysis be introduced for any significant changes to a planning scheme.
If you are in the Victorian Government and would like more information about this report, please contact:
Retta Berryman
Trainee Lawyer
retta.berryman@vgso.vic.gov.au
t 8684 0468
Wednesday, 12 February 2014
High Court decision affecting Victorian hunting and fishing laws
Native title cases can make your head hurt. But it is always interesting to see the highest court in the land grapple with the complex interplay between statutory regimes and native title rights.
Karpany v Dietman is no exception. It considered whether the native title right to fish provided a defence to a prosecution under an SA law prohibiting fishing, and also whether the native title right was extinguished by a previous SA fishing law.
The decision is an important one for any Victorian government officers that regulate hunting, gathering or fishing, as it increases the likelihood of native title operating as a defence in prosecutions of this type.
Owen and Daniel Karpany, two members of the Narrunga People (an Aboriginal group in South Australia), were charged on 12 December 2009 for possessing undersized abalone.
They argued s 211 of the Native Title Act 1993 (Cth) as a defence. Section 211 provides a defence to federal and State prohibitions on hunting, fishing, gathering and 'cultural or spiritual' activities where a person has a native title right to carry on the activity, so long as:
The High Court found for the Karpanys on both issues.
First, it held that the native title right to fish had not been extinguished by the 1971 Act because the 1971 Act regulated fishing, rather than replacing all existing fishing rights with statutory ones. The Court noted that the 1971 Act's prohibitions were subject to exceptions and exemptions, including ones facilitating the exercise of the native title right to fish. As the 1971 Act did not generally prohibit the exercise of native title fishing rights, it did not extinguish those rights.
Secondly, the Court agreed that the statutory power of the Minister to grant exemptions from the current fishing prohibition was a 'licence, permit or other instrument' for the purpose of s 211(1)(b). The Court said that those words accommodated 'a large range of possible statutory regimes', and were apt to cover 'any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described in s 211(3)' (that is, hunting, fishing and gathering).
There are two ways this decision could affect Victorian government officers.
First, it is more likely that s 211 of the Native Title Act 1993 (Cth) could be raised as a defence to a hunting or fishing prosecution. When its preconditions are met, s 211 trumps State restrictions on these activities, allowing native title rights to be exercised for personal, domestic, non-commercial or communal needs. This is because s 109 of the Constitution invalidates any State laws that are inconsistent with a Commonwealth law (such as s 211).
Section 211 will apply if the State restriction applies other than in accordance with a 'licence, permit or other instrument'. For example, in Victoria, Part 8 of the Fisheries Regulations 2009 (Vic) applies various restrictions to the taking of abalone. But where a restriction is subject to an exemption based on a licence, the restriction could be removed by s 211. The broad approach to interpreting 'licence, permit or other instrument' in Karpany may mean that the point is more whether there is an exemption power of some kind, even if it is not usually thought of as a licence or permit.
It is important to note that the State law relaxed by s 211 was an offence provision which applied to persons who did not hold a licence. The effect was that native title holders could take undersized abalone which no one else could, unless the Minister actually exempted them from the operation of the legislation. The existence of that exemption power (not its past or likely use) was enough to trigger s 211.
Moreover, Karpany is another instance that shows native title does not need to have been formally recognised to argue the s 211 defence. Having said that, the prosecution did not argue that the Karpanys did not have the necessary native title fishing rights.
Secondly, the decision shows the High Court will not be easily persuaded that a State statutory licensing regime extinguishes native title rights to take resources. Native title rights to fish for non-commercial purposes have been recognised to exist over parts of Victoria.
In short, Victorian government officers need to keep in mind that native title rights to fish or hunt may form a defence to a prosecution if it was done for domestic or communal purposes. Seek legal advice on your specific legal regime if you want to know whether it meets the particular requirements of s 211 of the Native Title Act 1993 (Cth).
If you are in the Victorian Government and require legal advice on native title rights or this decision, please contact:
Mary Scalzo
Managing Principal Solicitor
t 9947 1419
mary.scalzo@vgso.vic.gov.au
James Stephens
Principal Solicitor
t 9947 1422
james.stephens@vgso.vic.gov.au
Karpany v Dietman is no exception. It considered whether the native title right to fish provided a defence to a prosecution under an SA law prohibiting fishing, and also whether the native title right was extinguished by a previous SA fishing law.
The decision is an important one for any Victorian government officers that regulate hunting, gathering or fishing, as it increases the likelihood of native title operating as a defence in prosecutions of this type.
The facts
Owen and Daniel Karpany, two members of the Narrunga People (an Aboriginal group in South Australia), were charged on 12 December 2009 for possessing undersized abalone.
They argued s 211 of the Native Title Act 1993 (Cth) as a defence. Section 211 provides a defence to federal and State prohibitions on hunting, fishing, gathering and 'cultural or spiritual' activities where a person has a native title right to carry on the activity, so long as:
- it is for a domestic or communal purpose, not a commercial one;
- it does not exceed the scope of the native title rights; and
- the prohibition applies other than in accordance with a 'licence, permit or other instrument'. The Karpanys argued that the Minister's ability to grant exemptions from this prohibition met this requirement.
- whether the Fisheries Act 1971 (SA) (1971 Act) extinguished the Karpanys' native title right and thus s 211 was inapplicable; and
- whether the words 'licence, permit or other instrument' in s 211 should be read broadly to include the SA Minister's statutory power to grant exemptions to the fishing prohibition.
The decision
The High Court found for the Karpanys on both issues.
First, it held that the native title right to fish had not been extinguished by the 1971 Act because the 1971 Act regulated fishing, rather than replacing all existing fishing rights with statutory ones. The Court noted that the 1971 Act's prohibitions were subject to exceptions and exemptions, including ones facilitating the exercise of the native title right to fish. As the 1971 Act did not generally prohibit the exercise of native title fishing rights, it did not extinguish those rights.
Secondly, the Court agreed that the statutory power of the Minister to grant exemptions from the current fishing prohibition was a 'licence, permit or other instrument' for the purpose of s 211(1)(b). The Court said that those words accommodated 'a large range of possible statutory regimes', and were apt to cover 'any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described in s 211(3)' (that is, hunting, fishing and gathering).
How this decision affects the Victorian government
There are two ways this decision could affect Victorian government officers.
First, it is more likely that s 211 of the Native Title Act 1993 (Cth) could be raised as a defence to a hunting or fishing prosecution. When its preconditions are met, s 211 trumps State restrictions on these activities, allowing native title rights to be exercised for personal, domestic, non-commercial or communal needs. This is because s 109 of the Constitution invalidates any State laws that are inconsistent with a Commonwealth law (such as s 211).
Section 211 will apply if the State restriction applies other than in accordance with a 'licence, permit or other instrument'. For example, in Victoria, Part 8 of the Fisheries Regulations 2009 (Vic) applies various restrictions to the taking of abalone. But where a restriction is subject to an exemption based on a licence, the restriction could be removed by s 211. The broad approach to interpreting 'licence, permit or other instrument' in Karpany may mean that the point is more whether there is an exemption power of some kind, even if it is not usually thought of as a licence or permit.
It is important to note that the State law relaxed by s 211 was an offence provision which applied to persons who did not hold a licence. The effect was that native title holders could take undersized abalone which no one else could, unless the Minister actually exempted them from the operation of the legislation. The existence of that exemption power (not its past or likely use) was enough to trigger s 211.
Moreover, Karpany is another instance that shows native title does not need to have been formally recognised to argue the s 211 defence. Having said that, the prosecution did not argue that the Karpanys did not have the necessary native title fishing rights.
Secondly, the decision shows the High Court will not be easily persuaded that a State statutory licensing regime extinguishes native title rights to take resources. Native title rights to fish for non-commercial purposes have been recognised to exist over parts of Victoria.
In short, Victorian government officers need to keep in mind that native title rights to fish or hunt may form a defence to a prosecution if it was done for domestic or communal purposes. Seek legal advice on your specific legal regime if you want to know whether it meets the particular requirements of s 211 of the Native Title Act 1993 (Cth).
If you are in the Victorian Government and require legal advice on native title rights or this decision, please contact:
Mary Scalzo
Managing Principal Solicitor
t 9947 1419
mary.scalzo@vgso.vic.gov.au
James Stephens
Principal Solicitor
t 9947 1422
james.stephens@vgso.vic.gov.au
Wednesday, 5 February 2014
Water Bill Exposure Draft: what changes will flow?
Following a comprehensive review of Victorian water law, a Water Bill Exposure Draft was released to the public in December 2013.
The Exposure Draft proposes to bring the two current Acts that govern water use and management in Victoria - the Water Act 1989 and the Water Industry Act 1994 - into a single streamlined Water Act. In addition to ironing out issues created by confusing, duplicated and obsolete provisions in the current legislation, the Exposure Draft also seeks to modernise water management practices and implement Government policies including the Living Victoria policy and the forthcoming Melbourne's Water Future strategy.
Although many features of the current legislative regime will remain the same, the Exposure Draft proposes a new, more logical structure that should make it easier to find relevant information. It seeks to streamline and consolidate provisions which are spread across the current Acts, both of which have been subject to many water reform amendments since their commencement. A table that sets out where the equivalent provisions in the current Acts can be located in the new Exposure Draft is available here. Some current provisions - such as those governing the power to impose water restrictions - will be dealt with by Regulation.
The Exposure Draft also proposes a number of substantive changes aimed at promoting 'whole of water cycle' management and to bring Victorian water law into line with contemporary water and legislative practice. Four of the most substantive changes are outlined below.
Under the current legislation, the obligations on decision makers regarding matters that must be taken into account are difficult to navigate, inconsistent and repetitive. The Exposure Draft sets out a new single set of 'core considerations' at the front of the Bill which the Minister - or water corporations and catchment authorities acting on the Minister's behalf - will be required to take into account before making certain decisions, including considering applications for new licences and water shares.
The proposed core considerations include the impact a decision will have on other water users, on environmental water (and water that may not meet the definition of 'environmental water' but which has multiple uses including preserving environmental values and the health of water ecosystems); and on the protection of the environment generally. The concept of 'environmental water reserve' has been replaced by the broader concept 'environmental water'. This is intended to better capture the concept of water in life cycle terms including: water held under an entitlement or right for the environment, and water committed under other entitlements for environmental purposes.
Replacing the current piecemeal approach with a standardised set of core considerations that will govern the making of many decisions relating to water use and management should enable greater consistency and efficiency in decision making as well as ensuring environmental protection is a priority.
A new concept called the Water Resource Management Order (WRMO) is proposed to describe all water management arrangements for a particular area. This will act as an umbrella under which all entitlements in the particular area will sit. That means that bulk entitlements, water shares, take and use licenses as well as statutory rights (eg, for domestic and stock use) will be located in one place and easier to understand. The current mix of regulatory instruments have been described as complex and inconsistent. The WRMO proposes to simplify water system management rules. The WRMO will include cap and trade rules that determine the maximum volume of water that can be allocated within a particular area or water system.
At common law, the position in relation to property rights that attach to the water collected in stormwater pipes and drains is complex and difficult to understand. The Exposure Draft proposes to extinguish these common law rights and confer new express rights for local councils to manage water in their stormwater works.
Under the Exposure Draft, all rights to water in local council and water corporation stormwater pipes and drains will be vested in the Crown, with the rights to take and use that water expressly conferred on local councils and water corporations. Having clear rights to use and control this water is aimed at encouraging investment in local projects to harvest and make use of stormwater that is currently going to waste.
The Exposure Draft also proposes a significant overhaul of the compliance and enforcement regime currently in place under the Water Act 1989 for water-related offences, including providing clearer explanations of what conduct will constitute an offence, and increasing penalties to improve deterrence.
The changes comprise multiple enforcement options that are more targeted to the nature of the particular offence, and provide alternatives to costly and time consuming court proceedings such as the use of penalty infringement notices.
The provision relating to liability for flows of water (currently s 16, new clause 671) has been clarified in a number of ways. The flows of water for which an owner of land may be held liable includes water from a tank, sewer, drain, pipe, fitting or appliance of any kind on the land.
The Exposure Draft also sets out new requirements for the valid appointment of appropriately trained Authorised Water Officers who will be responsible for administering the compliance and enforcement regime.
The Exposure Draft is open for public comment until 14 February 2014. Once finalised, it is intended that the new Water Bill will be introduced to Parliament during 2014 with a view to a new Water Act commencing on 1 January 2016.
For more information, please contact:
Eliza Bergin
Principal Solicitor
t 8684 0267
eliza.bergin@vgso.vic.gov.au
The Exposure Draft proposes to bring the two current Acts that govern water use and management in Victoria - the Water Act 1989 and the Water Industry Act 1994 - into a single streamlined Water Act. In addition to ironing out issues created by confusing, duplicated and obsolete provisions in the current legislation, the Exposure Draft also seeks to modernise water management practices and implement Government policies including the Living Victoria policy and the forthcoming Melbourne's Water Future strategy.
Although many features of the current legislative regime will remain the same, the Exposure Draft proposes a new, more logical structure that should make it easier to find relevant information. It seeks to streamline and consolidate provisions which are spread across the current Acts, both of which have been subject to many water reform amendments since their commencement. A table that sets out where the equivalent provisions in the current Acts can be located in the new Exposure Draft is available here. Some current provisions - such as those governing the power to impose water restrictions - will be dealt with by Regulation.
The Exposure Draft also proposes a number of substantive changes aimed at promoting 'whole of water cycle' management and to bring Victorian water law into line with contemporary water and legislative practice. Four of the most substantive changes are outlined below.
New 'core considerations' for decision makers
Under the current legislation, the obligations on decision makers regarding matters that must be taken into account are difficult to navigate, inconsistent and repetitive. The Exposure Draft sets out a new single set of 'core considerations' at the front of the Bill which the Minister - or water corporations and catchment authorities acting on the Minister's behalf - will be required to take into account before making certain decisions, including considering applications for new licences and water shares.
The proposed core considerations include the impact a decision will have on other water users, on environmental water (and water that may not meet the definition of 'environmental water' but which has multiple uses including preserving environmental values and the health of water ecosystems); and on the protection of the environment generally. The concept of 'environmental water reserve' has been replaced by the broader concept 'environmental water'. This is intended to better capture the concept of water in life cycle terms including: water held under an entitlement or right for the environment, and water committed under other entitlements for environmental purposes.
Replacing the current piecemeal approach with a standardised set of core considerations that will govern the making of many decisions relating to water use and management should enable greater consistency and efficiency in decision making as well as ensuring environmental protection is a priority.
Water Resource Management Order
A new concept called the Water Resource Management Order (WRMO) is proposed to describe all water management arrangements for a particular area. This will act as an umbrella under which all entitlements in the particular area will sit. That means that bulk entitlements, water shares, take and use licenses as well as statutory rights (eg, for domestic and stock use) will be located in one place and easier to understand. The current mix of regulatory instruments have been described as complex and inconsistent. The WRMO proposes to simplify water system management rules. The WRMO will include cap and trade rules that determine the maximum volume of water that can be allocated within a particular area or water system.
Statutory rights for local councils to water in stormwater drains
At common law, the position in relation to property rights that attach to the water collected in stormwater pipes and drains is complex and difficult to understand. The Exposure Draft proposes to extinguish these common law rights and confer new express rights for local councils to manage water in their stormwater works.
Under the Exposure Draft, all rights to water in local council and water corporation stormwater pipes and drains will be vested in the Crown, with the rights to take and use that water expressly conferred on local councils and water corporations. Having clear rights to use and control this water is aimed at encouraging investment in local projects to harvest and make use of stormwater that is currently going to waste.
Changes to the enforcement regime for water-related offences
The Exposure Draft also proposes a significant overhaul of the compliance and enforcement regime currently in place under the Water Act 1989 for water-related offences, including providing clearer explanations of what conduct will constitute an offence, and increasing penalties to improve deterrence.
The changes comprise multiple enforcement options that are more targeted to the nature of the particular offence, and provide alternatives to costly and time consuming court proceedings such as the use of penalty infringement notices.
The provision relating to liability for flows of water (currently s 16, new clause 671) has been clarified in a number of ways. The flows of water for which an owner of land may be held liable includes water from a tank, sewer, drain, pipe, fitting or appliance of any kind on the land.
The Exposure Draft also sets out new requirements for the valid appointment of appropriately trained Authorised Water Officers who will be responsible for administering the compliance and enforcement regime.
The Exposure Draft is open for public comment until 14 February 2014. Once finalised, it is intended that the new Water Bill will be introduced to Parliament during 2014 with a view to a new Water Act commencing on 1 January 2016.
For more information, please contact:
Eliza Bergin
Principal Solicitor
t 8684 0267
eliza.bergin@vgso.vic.gov.au
Wednesday, 29 January 2014
How to draft an enforceable dispute resolution clause
When will a dispute resolution clause be enforceable? The Supreme Court recently grappled with this question in WTE Co-Generation v RCR Energy. The decision is a helpful guide on how to create a dispute resolution clause that achieves its aim. It also highlights the danger of commercial dispute resolution clauses that are effectively 'agreements to agree', which may be unenforceable due to a lack of precision.
Background
This case related to a contract for the supply of a co-generation facility, intended to be fired by paper mill residues, for a price of in excess of $20m. While the facility was constructed, the superintendent did not certify practical completion as being reached, ultimately resulting in the plaintiff issuing a notice to the defendant purporting to terminate the contract.
An application was made by the defendants that the proceeding be stayed until the parties had complied with a contractual resolution clause.
That clause provided that:
In the event that the parties have not resolved the dispute then within a further 7 days a senior executive representing each of the parties must meet to attempt to resolve the dispute or to agree on methods of doing so.
The defendants argued that there had been no compliance with clause 42, while the plaintiffs position was that the clause was uncertain and unenforceable.
The Decision
Justice Vickery found that the clause effectively amounted to an agreement to agree and was therefore not enforceable due to its inherent uncertainty.
Justice Vickery cited with approval the statement in the New South Wales Court of Appeal decision in Coal Cliff Collieries v Sijehama Pty Ltd that '…in some circumstances a promise to negotiate in good faith will be enforceable, depending on its precise terms…'.
Further, his Honour set out a number of principles to determine whether a stay should be granted where a contractual dispute resolution process is expressed to be a pre-condition of litigation, including:
- That such clauses should be determined robustly to give them commercial effect by avoiding a 'narrow or pedantic approach in favour of a commercially sensible construction'.
- Where express words are at issue that are broad and general, but nevertheless have sensible and ascribable meaning, the court should give effect to such provisions.
- Public policy in promoting efficient dispute resolution, especially commercial dispute resolution, requires enforceable content be given to contractual dispute resolution clauses where possible.
Justice Vickery found the dispute resolution clause not to amount to a valid agreement to negotiate however, as it essentially amounted to an agreement to agree for the following reasons:
- Once the operation of the clause was triggered, it required the parties to either meet together to resolve the dispute, or to agree on methods for doing so. These requirements fell short of prescribing a process to determine which option is to be pursued.
- No method of resolving the dispute is prescribed by the clause. Rather, the clause expressly contemplates that the method for resolving the dispute is to depend on the parties' further agreement as to the methods to be employed.
His Honour outlined that, whilst a valid dispute resolution clause does not require a set of rules to be set out:
…as a minimum, what is necessary for a valid and enforceable dispute resolution clause, is to set out the process or model to be employed, and in a manner which does not leave this to further agreement. It is not for the court to substitute its own mechanism where the parties have failed to agree upon it in their contract. To do so would involve the court in contractual drafting, which is a distinctly different exercise from contractual construction of imprecise terms.
If you are in the Victorian Government and wish to discuss the implications of this case further, please contact:
Managing Principal Solicitor
t 8684 0418
General Counsel
t 8684 0458
Wednesday, 22 January 2014
The ins and outs of good governance of public sector boards
No one doubts the importance of public sector boards having impeccable governance procedures, but what does this really involve?
The Victorian Ombudsman's recent report on the Review of the Governance of Public Sector Boards in Victoria (Report) provides a helpful guide.
It identifies two dimensions to governance arrangements of public sector boards:
External governance arrangements are generally set by the entity's enabling legislation and, depending on the form of the entity, public sector governance legislation such as the Public Administration Act 2004 (PAA); Financial Management Act 1994; Audit Act 1994; Information Privacy Act 2000; Independent Broad-based Anti-Corruption Commission Act 2011 and so forth.
Compliance with public sector governance legislation requires the public entity, the department and the responsible Minister to collaborate. This is because the legislation, although applying separately to the public entity and the Minister, imposes obligations on each.
The board of a public entity is accountable under the PAA to the responsible Minister who in turn is responsible to Parliament. Ministers need to be kept informed of the performance and operations of public entities within their portfolio and will rely on their departments for ready access to such information.
Unless stated in the enabling legislation, departments do not currently have an automatic role in the accountability framework for public entity boards. Departments assist at the Ministers' direction.
The Public Administration Amendment (Public Sector Improvement) Bill 2013 currently before Parliament gives statutory recognition to the role of departments. The bill proposes that a department head is responsible for advising the Minister on matters relating to a public entity, including the discharge of responsibilities by the entity. The department head is also entrusted with the task of providing guidance to each relevant public entity on matters relating to public administration and governance.
The key to ensuring that each party - the entity, the Minister and the relevant department head is able to discharge their particular statutory responsibilities is to put in place workable governance arrangements that are understood and accepted by all.
The principal internal governance concern identified in the Report is the relationship between a public entity board and its CEO. An effective board-CEO relationship is essential for the operational governance of an entity. Separation between the roles of the CEO and the board assists the effective governance of boards. Insufficient accountability dilutes responsibility and poses a risk to good governance.
The Report highlights a number of accountability mechanisms which may regulate the relationship between the board and the CEO, and discusses ways in which conflicts of interest may be avoided.
The composition of a board is crucial to its ability to govern effectively. The board member appointment process is a key area of governance risk.
The particular functions of an entity should determine the design of its board. Generally, a board should have a combination of generalist skills and skills specific to the sector in which the entity operates. An entity's enabling legislation may specify that the board must include members with particular skills and expertise.
The Report notes that it is desirable for the Chair of the board to be involved in the appointment process, as the Chair can assist in identifying the skills and experience required, and the mix of personalities most likely to make for a cohesive board. .
The Report also identifies the size of the board as a critical aspect of good governance. Large boards can be inefficient and unwieldy.. But on the other hand, a board's ability to effectively govern could be impaired if it is too small or is operating at a reduced capacity due to delays in vacancies being filled. The Report recommends that boards with more than nine members should be avoided unless the circumstances require a higher number of appointments.
Drawing from many years of practical experience, the VGSO's experts in corporate governance can assist you in establishing and implementing governance processes and support you to conduct the business of government consistently with public sector governance legislation. If you are in the Victorian Government and seek advice on corporate governance issues, please contact:
Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au
Carolyn Doyle
Principal Solicitor
t 9947 1403
carolyn.doyle@vgso.vic.gov.au
The Victorian Ombudsman's recent report on the Review of the Governance of Public Sector Boards in Victoria (Report) provides a helpful guide.
It identifies two dimensions to governance arrangements of public sector boards:
- External governance, being the entity's relationship with Parliament, the responsible Minister and the relevant government department.
- Internal governance, being an entity's organisational structure, internal procedures and financial practices and policies.
External governance
External governance arrangements are generally set by the entity's enabling legislation and, depending on the form of the entity, public sector governance legislation such as the Public Administration Act 2004 (PAA); Financial Management Act 1994; Audit Act 1994; Information Privacy Act 2000; Independent Broad-based Anti-Corruption Commission Act 2011 and so forth.
Compliance with public sector governance legislation requires the public entity, the department and the responsible Minister to collaborate. This is because the legislation, although applying separately to the public entity and the Minister, imposes obligations on each.
The board of a public entity is accountable under the PAA to the responsible Minister who in turn is responsible to Parliament. Ministers need to be kept informed of the performance and operations of public entities within their portfolio and will rely on their departments for ready access to such information.
Unless stated in the enabling legislation, departments do not currently have an automatic role in the accountability framework for public entity boards. Departments assist at the Ministers' direction.
The Public Administration Amendment (Public Sector Improvement) Bill 2013 currently before Parliament gives statutory recognition to the role of departments. The bill proposes that a department head is responsible for advising the Minister on matters relating to a public entity, including the discharge of responsibilities by the entity. The department head is also entrusted with the task of providing guidance to each relevant public entity on matters relating to public administration and governance.
The key to ensuring that each party - the entity, the Minister and the relevant department head is able to discharge their particular statutory responsibilities is to put in place workable governance arrangements that are understood and accepted by all.
Internal governance
The principal internal governance concern identified in the Report is the relationship between a public entity board and its CEO. An effective board-CEO relationship is essential for the operational governance of an entity. Separation between the roles of the CEO and the board assists the effective governance of boards. Insufficient accountability dilutes responsibility and poses a risk to good governance.
The Report highlights a number of accountability mechanisms which may regulate the relationship between the board and the CEO, and discusses ways in which conflicts of interest may be avoided.
Board Design
The composition of a board is crucial to its ability to govern effectively. The board member appointment process is a key area of governance risk.
The particular functions of an entity should determine the design of its board. Generally, a board should have a combination of generalist skills and skills specific to the sector in which the entity operates. An entity's enabling legislation may specify that the board must include members with particular skills and expertise.
The Report notes that it is desirable for the Chair of the board to be involved in the appointment process, as the Chair can assist in identifying the skills and experience required, and the mix of personalities most likely to make for a cohesive board. .
The Report also identifies the size of the board as a critical aspect of good governance. Large boards can be inefficient and unwieldy.. But on the other hand, a board's ability to effectively govern could be impaired if it is too small or is operating at a reduced capacity due to delays in vacancies being filled. The Report recommends that boards with more than nine members should be avoided unless the circumstances require a higher number of appointments.
Drawing from many years of practical experience, the VGSO's experts in corporate governance can assist you in establishing and implementing governance processes and support you to conduct the business of government consistently with public sector governance legislation. If you are in the Victorian Government and seek advice on corporate governance issues, please contact:
Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au
Carolyn Doyle
Principal Solicitor
t 9947 1403
carolyn.doyle@vgso.vic.gov.au
Friday, 17 January 2014
9 things you should know about the draft VPS Intellectual Property Guidelines
The Intellectual Property Guidelines for the Victorian Public Sector have been published as a working draft.
The Guidelines will support the Whole of Victorian Government Intellectual Property Policy Intent and Principles (IP Policy), created in August 2012. The IP Policy sets out broad principles on the State's ownership and management of its intellectual property and its use of third party intellectual property. The Guidelines, provide guidance on the specific steps government agencies should take to comply with the IP Policy.
The IP Policy and the Guidelines apply to all departments and public bodies of the State. ‘Public body’ includes State business corporations and statutory authorities.
The draft Guidelines are a 'must read' for departments and agencies, who will need to implement the processes outlined. They also provide links to useful resources and an indication of when specific legal advice may be required.
Here are 9 things you should know about the Guidelines:
Isabel Parsons
Special Counsel
t 9947 1405
isabel.parsons@vgso.vic.gov.au
The Guidelines will support the Whole of Victorian Government Intellectual Property Policy Intent and Principles (IP Policy), created in August 2012. The IP Policy sets out broad principles on the State's ownership and management of its intellectual property and its use of third party intellectual property. The Guidelines, provide guidance on the specific steps government agencies should take to comply with the IP Policy.
The IP Policy and the Guidelines apply to all departments and public bodies of the State. ‘Public body’ includes State business corporations and statutory authorities.
The draft Guidelines are a 'must read' for departments and agencies, who will need to implement the processes outlined. They also provide links to useful resources and an indication of when specific legal advice may be required.
Here are 9 things you should know about the Guidelines:
- Many requirements of the Guidelines will only apply to 'significant' IP - for example, where the IP is particularly valuable or important to the operations of the agency.
- The Guidelines will require agencies to manage their own IP and be responsible for implementing the IP Policy. (This is different to the previous position where requests to make use of State owned copyright material required the Attorney General’s approval.) Agencies will also need to actively foster compliance and awareness of the IP Policy and Guidelines.
- The Guidelines acknowledge that agencies may have specific IP provisions in their establishing legislation. For example, the Transport Integration Act 2010 (Vic) empowers the Secretary of the Department of Transport to acquire, hold, licence, exploit or dispose of IP. Agencies need to consider the interaction between the IP Policy and these provisions.
- The Guidelines set out specific recording and reporting requirements
- Maintaining an intellectual property register recording information about any significant IP of the agency, including the creator, its identifying details, any IP registrations, the start and end date of the IP protection, relevant contracts and any important ownership and licensing details.
- Reporting IP infringements to DTF, as the responsible agency. (The Guidelines contain materials on circumstances where it will be appropriate for an agency to enforce State IP rights, and a substantial section highlighting law relevant to use by the State of third party IP).
- The Guidelines set out how to address IP in government contracts. Not sure where to start? For IP under procurement contracts, Chapter 5 of the Guidelines provides for a default position whereby:
- each party retains ownership of its background IP;
- the contractor grants the agency a licence over its background IP and third party IP to the extent needed for the agency to enjoy the full benefit of the agreement; and
- the contractor owns the project IP developed but grants the agency a licence over the project IP to the extent necessary to achieve the procurement purposes.
- The Guidelines encourage agencies to develop template procurement contracts to reflect the IP Policy. DTF is currently working with the Victorian Government Purchasing Board to ensure consistency between the IP Policy and the VGPB requirements. (Chapter 6 deals with these issues for IP under funding and grant agreements.)
- There is a substantial section on licensing and public release of materials where the State owns the relevant IP. The preferred form of licence for State copyright material is a Creative Commons licence (Australian version). Specific guidance is provided on the selection and use of the various types of Creative Commons licences for new and existing materials..
- The Guidelines address the commercial dimensions of IP where there has been little guidance in the past, including:
- the factors to consider to value IP;
- when a State agency can commercialise its IP through licence or sale (the IP Policy has imposed significant restrictions on commercialisation, including requirements for authorisations, and the application of the Cost Recovery Guidelines);
- when a State agency should reassign or dispose of its IP and how to do this in an open, accountable and competitive manner.
- There is a full chapter on moral rights, and practical guidance as to when the State should seek moral rights consents from its employees and contractors, together with a template consent form.
Isabel Parsons
Special Counsel
t 9947 1405
isabel.parsons@vgso.vic.gov.au
Subscribe to:
Posts (Atom)