High Court upholds broad anti-consorting laws (is it time to "unfriend" your bikie mates on Facebook..?)

New South Wales had a win on 8 October 2014, with the High Court upholding laws making it a crime to 'consort' with convicted offenders are valid (Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014] HCA 35). You can read the full judgment here.

The anti-consorting legislation empowers police to give people a notice to not 'habitually consort' with named persons.  'Consorting' is quite widely defined under the relevant legislation and includes consorting via electronic media, for example via Facebook or Twitter.  Breach of the notice is an offence.  The case involved a challenge by three plaintiffs (two of whom were members of the Nomads bikie gang) who had each been given a notice, and were subsequently charged with consorting.

The plaintiffs all argued that the legislation breached the constitutionally implied freedom of political communication.  Two also argued that it breached a constitutionally implied right to freedom of association, and that it was invalid for inconsistency with the International Covenant on Civil and Political Rights.

All of the grounds raised by the plaintiffs failed.

The laws are appropriate for stopping crime

A majority of 6:1 found that the anti-consorting provisions burden the implied freedom, but that the provisions are appropriate and adapted to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government (see below for Justice Gageler's distinct approach).  The High Court noted that the provisions do not unduly limit all political communications, or occasions for such communications, and that the proscribed consorting would need to be 'habitual' for the prohibition to apply, which again limited the scope of the prohibition.

But such laws could be read down in future

Justice Gageler, reaching the same conclusion via a different route, found that the provisions are not appropriate and adapted to the purpose of preventing crime, where they limit communications on political matters.  However, he found that the provisions could be read down to exclude 'consorting which is or forms part of an association for a purpose of engaging in communication on governmental or political matter', and the legislation was saved on this basis.  If this approach finds favour in future, it could lead to different results, with laws being held to not apply to political communication.

Only Chief Justice French dissented, in finding that the legislation was not appropriate and adapted because it applied to what he referred to as 'entirely innocent habitual consorting'.  The Chief Justice therefore found the provisions to be invalid.

As for the other grounds, the Court found that the freedom of association was either unnecessary to consider or could not be implied into the Constitution, and unanimously rejected the proposition that a treaty which has not been incorporated into Commonwealth law could circumscribe the legislative power of State Parliaments.

What does this mean for Victoria?

If similar legislation were introduced in Victoria, its interpretation and application would be affected by the processes required under the Charter of Human Rights and Responsibilities Act 2006, which expressly protects rights to freedom of expression and association.  The approach to determining any challenge to hypothetical similar Victorian laws may involve different considerations depending on how the legislation is framed and the nature of the dispute between parties. In determining whether Charter Act rights are limited in such a case, the court would need to engage in a balancing exercise that may involve similar considerations as those considered in this case.  Ultimately, the outcome would depend upon whether any limitation of Charter Act rights could be shown to be lawful and justified.

If you are in the Victorian Government and require advice on constitutional or human rights issues, we can help.

VGSO will be presenting a seminar, open to all Victorian Government client agencies, on this case and its implications.  It will be held on Wednesday, 19 November 2014, from 12:30-2:00pm at Level 33, 80 Collins Street, Melbourne. Please register your interest in attending by emailing marketing.team@vgso.vic.gov.au

For further information about the topic contact:

Adrian Hoel
Principal Solicitor
t: 8684 0244
e: adrian.hoel@vgso.vic.gov.au

Nahal Zebarjadi
Solicitor
t: 8684 0401
e: nahal.zebarjadi@vgso.vic.gov.au

Changing Times: Sex discrimination damages on the rise as the 'old range' debunked by 'community standards'

The Full Court of the Federal Court has blown the lid off what key commentators have been calling the discrimination damages time capsule. In Richardson v Oracle an award at trial of $18,000 for pain and suffering caused by sexual harassment at IT company, Oracle, was increased to $100,000 on appeal. The decision has some lawyers quoting Bob Dylan's 'the time's they are a-changin'. So, what happened, and why the revolutionary tenor?

The Full Court did two main things - both are critical for public sector employers who could be liable for unlawful conduct by their employees.

1. 'Unofficial range' rejected

Justice Kenny (with whom Besanko and Perram JJ agreed) held that the $18,000 awarded by the trial Judge was 'manifestly inadequate' compensation for Ms Richardson's pain and suffering. In doing so, the Court rejected a long-standing unofficial range of between $12,000 and $20,000 within which damages for all but the most extreme sexual harassment injuries have previously been awarded.

While her Honour accepted that the trial Judge fixed a sum squarely 'within the range', this was not, as her Honour put it, 'the end of the matter'. The Court identified a 'substantial disparity' between Ms Richardson's compensation and the amounts now awarded outside the sex discrimination space to victims of workplace bullying and harassment (especially in Victoria). After highlighting the dangers of relying too heavily on an unofficial range at all, the Court rejected it. The range had, her Honour stated, 'remained unchanged' for over a decade 'notwithstanding that the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience'.

Once the range was cast aside, the Court assessed Ms Richardson's loss by reference to 'general standards prevailing in the community' regarding the value of her pain and suffering: In this case, the amount was determined to be $100,000.

2. Damages awarded for Ms Richardson's 'choice to leave'

Perram and Besanko JJ (with whom Kenny J agreed) also overturned the trial Judge's finding that Oracle was not liable for Ms Richardson's financial loss upon leaving the company. Although she was not constructively dismissed or demoted, Oracle was still liable for Ms Richardson's loss. The clincher here was causation. Even though Oracle had not 'forced her out', it was liable once she 'chose' to leave because this 'choice' was itself caused by the sexual harassment. Such an analysis is not entirely new, but in Richardson the Court applied these principles to what may be a very common series of events where sexual harassment is proven.

TAKE HOME POINTS

So what does this mean for the public sector? In short, it seems the times are a changin'.

This decision confirms that, as always, employers must take sexual harassment in the workplace seriously. A failure to do so can now amount to higher damages than traditionally awarded against employers who are held to be vicariously liable for an employee's discriminatory conduct. The impact of the sexual harassment in this case, although significant, was not considered to be traumatic. Nevertheless, Ms Richardson was awarded $100,000 in recognition that 'community standards' and expectation have altered.

It is also important to bear in mind that these principles could be applied more generally in cases involving unlawful discrimination on the basis of other attributes, such as disability, race or age discrimination. The decision, therefore, has significant implications beyond cases involving sexual harassment.

Richardson is a timely reminder to review your agency's anti-discrimination policies and provide appropriate training to ensure that all employees are aware of the law and their obligations under it.
For further information about the case, advice on your agency’s anti-discrimination policies or how to keep up with the law involving anti- discrimination, please contact:

Vicki Moulatsiotis
Principal Solicitor
t 9032 3012
vicki.moulatsiotis@vgso.vic.gov.au

Katherine Francis
Senior Solicitor
t 9032 3014
katherine.francis@vgso.vic.gov.au

Hollie Kerwin
Solicitor
t 8684 0241
hollie.kerwin@vgso.vic.gov.au

White Paper on Reform of the Federation - what's in it for the States?

Australians want good services and infrastructure with minimal red tape, but accountability is important, and dividing up responsibilities and duties in our constitutional system isn't always easy. While the States have significant responsibilities for service delivery, the Commonwealth is more able to raise revenue to pay for those services. 

There are some areas that are better dealt with locally. There are other areas where a coordinated national approach is appropriate. But which approach is best and when? What does our constitutional system allow? 

The White Paper on Reform of the Federation will hopefully shed some light on these questions.

Just what is a white paper anyway?

A white paper is a report or guide helping stakeholders understand an issue, solve a problem, or make a decision. White papers tend to present a finished outcome, and so there are often green papers along the way. Green papers are usually more open-ended, presenting a range of options to facilitate consultation and help government reach a decision. And before the green papers, there may be issues papers as high level backgrounders on discrete topics. 

What's happening when?

The terms of reference for the White Paper on the Reform of the Federation were released on 30 June 2014. The first Issues Paper, "A Federation for our Future", was released 12 September 2014, and includes a detailed history of Australia's federal system. 

The Commonwealth will prepare further Issues Papers on health, education, housing and homelessness. The White Paper process will also consider transport and infrastructure, Indigenous affairs, justice, disability, welfare services, settlement services, family and parental support, disaster recovery, environmental regulation, adult and community education, and youth transitions. 

A Green Paper setting out options for reform will be released during the first half of 2015. The final White Paper setting out the Commonwealth's position is to be released by the end of 2015.

Why is the White Paper on Reform of the Federation important?

The White Paper has lofty aims: to clarify the roles and responsibilities of each level of government, to improve fiscal sustainability, and in turn help the public understand the federal system better and make interacting with government easier. 

In recent years there has been an accelerating trend towards centralisation of policy and funding in many areas, due in part to the High Court's broad interpretation of Commonwealth powers under the Constitution. 

The Commonwealth has indicated an intention to apply the principle of "subsidiarity" (or decentralisation), whereby responsibility for government services lie with the lowest possible level of government, closest to the beneficiaries of the services. 

How this might happen in practice is where it gets interesting. Under the Constitution, the Commonwealth has limited power over subject matters but broad power to tax. The States have been left with few independent revenue sources but have broad responsibilities, meaning that they are reliant on Commonwealth funding for key areas of service delivery. With funding comes the need for accountability.

As part of the White Paper process, the 2008 Inter-Governmental Agreement on Federal-Financial Relations will be revisited. That Agreement was executed with the intention to improve autonomy for States, but over time, funding agreements with restrictive conditions (also known as "tied grants") have increased. 

This time around revenue will also be on the agenda, with the White Paper on the Reform of the Federation to be closely aligned with the White Paper on the Reform of Australia’s Tax System (for which the terms of reference are yet to be released).

Will the Commonwealth propose constitutional reform? If it doesn’t, how will the Commonwealth resist the urge to impose restrictive conditions on the States receiving federal funds, just as it has since 2008? If it does, will there be bipartisan support for the proposal so that it stands a chance of satisfying our rigorous constitutional amendment process?

Where to from here? 

A Steering Committee will oversee the White Paper process, chaired by the Commonwealth and with representation from the State and Territory representatives First Ministers’ departments and the Australian Local Government Association. It will be a standing item on the COAG agenda. Details on the public consultation process to be released soon on the website at www.federation.dpmc.gov.au. 

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. 

VGSO contacts:

Sky Mykyta 

Managing Principal Solicitor

 t 8684 0220

sky.mykyta@vgso.vic.gov.au

Rachel Amamoo

Managing Principal Solicitor

t 8684 0899

rachel.amamoo@vgso.vic.gov.au

When can State courts be given functions that are a precursor to a controversial executive function?

On 14 August 2014 the High Court handed down judgment in Pollentine v Bleijie. The Court unanimously rejected the plaintiffs' challenge to the constitutional validity of s 18 of the Criminal Law Amendment Act 1945 (Qld) (the Act), which provides for the indefinite detention of certain convicted sex offenders.

The Act

Section 18 provides that where a person has been convicted of a sexual offence against a child under the age of 17 years, a judge of the District Court of Queensland may, if two medical practitioners certify that the offender is incapable of exercising proper control over his or her sexual instincts, order that the person be detained in an institution at Her Majesty's pleasure. An order under s 18 may be made in addition to or in substitution for any other sentence imposed by the District Court. A person detained in accordance with s 18 is liable to be detained until such time as the Governor in Council, acting on the advice of two medical practitioners, determines that it is expedient for the person to be released.

While it is convenient to refer to the provisions of the Act in the present tense, it should be noted that, as a practical matter, the Act has largely been superseded by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). [1]

Factual Background

In 1984, each of the plaintiffs pleaded guilty in the District Court to multiple sexual offences against children. Each plaintiff was found to be incapable of controlling his sexual instincts and was ordered by the District Court to be detained at Her Majesty's pleasure. Thus at the date the Court handed down judgment, each of the plaintiffs had spent a period in excess of thirty years in detention pursuant to s 18 of the Act.

Grounds of Constitutional Challenge

The plaintiffs contended that s 18 of the Act undermines the institutional integrity of the Queensland court system contrary to the principles identified by the High Court in Kable v Director of Public Prosecutions (NSW). They submitted that the Act breaches the Kable principles in three ways:

• Firstly, the plaintiffs submitted that s 18 impermissibly delegates to the executive government of Queensland the task of sentencing criminal offenders;
• Secondly, they submitted that an order of the District Court under s 18 is merely a cloak used to give a neutral, apolitical and judicial colour to what is in reality punitive detention by the executive branch of government; and
• Finally, the plaintiffs submitted that as the Act contains no provision empowering the District Court to revoke or vary an order made by it under s 18, it does not contain sufficient 'safeguards' to protect the integrity of the District Court.

The Court's Decision

In dismissing the plaintiffs' challenge to the validity of the Act, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ reiterated that the Kable doctrine does not imply into the constitutions of the States a rigid separation of judicial and political power. In addition, the majority noted that the Act does not purport to require the District Court to undertake the tasks of statutory construction and fact finding in a manner that is inconsistent with the ordinary processes of the criminal law; the Act merely confers upon the Court a discretion to make an order under s 18 if it is satisfied on the evidence before it that the criteria for making such an order are met. Finally, the majority observed that indeterminate detention by the executive government of persons found in judicial proceedings to be incapable of controlling their impulses has a lengthy history in Anglo-Australian law.[2] For these reasons, the majority held that the plaintiffs' challenge to the validity of the Act must fail.

Gageler J delivered a separate concurring judgment. His Honour emphasised that the Act does not provide for the detention of persons by the executive government as punishment for the commission of an offence; rather it authorises indefinite detention for a purpose that 'is properly characterised as wholly protective.' Gageler J rejected the plaintiffs' submission that the power of detention conferred upon the executive government by the Act is 'unconstrained', noting that any determination made by the Governor in Council with respect to the continued detention of a person pursuant to the Act is subject to the constitutionally entrenched jurisdiction of the Supreme Court of Queensland to review executive action for jurisdictional error. His Honour therefore held that the Act did not undermine the integrity of the Queensland court system.

What Does the Decision Mean?

The judgments delivered by the Court in Pollentine contribute to the ongoing process of precisely defining the constitutional principle that was first enunciated in a somewhat impenetrable form in Kable. The judgments of the majority and of Gageler J confirm that Chapter III of the Commonwealth Constitution protects the integrity of State judicial systems by rendering invalid State laws which interfere improperly in the process of judicial decision making.

Thus the Kable principle has been applied to invalidate legislative action which has had the effect of requiring a court of a State to proceed in an unfair or arbitrary manner or to apply findings of fact foisted upon it by the executive branch. The Kable principle does not entrench in the constitutions of the States a rigid separation of powers of the kind embodied in the Commonwealth Constitution. Rather, to adopt the words of Blackmun J in Mistretta v United States, the Kable principle exists to ensure that the reputation of a State court 'may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action.' The principle is directed towards laws which, even if facially neutral, compel a State court to reach a conclusion which has been pre-ordained by one or other of the political branches of government.

The judgments in Pollentine confirm that the Kable principle does not detract from the power of a legislature to confer upon a State court an impartial function of a genuinely judicial nature that serves as a precursor to the exercise by the executive government of some other function. The exercise by the Executive of a function that is contingent on the completion of a judicial process is not at all equivalent to the co-option for political ends of a nominally judicial process.

For more information about the limits the Kable principle places on State governments, please contact:

Jonathan Bayly
Principal Solicitor
03 8684 0223
jonathan.bayly@vgso.vic.gov.au

---

[1] The validity of that Act was upheld by the High Court in Fardon v Attorney-General (Qld).

[2] The majority referred to the provisions of the Criminal Lunatics Act 1800 (UK), which was enacted in response to the case of James Hadfield, who on 15 May 1800 attempted to assassinate George III as the King entered the royal box at Drury Lane Theatre. At the suggestion of Lord Kenyon CJ, who presided over Hadfield's trial, the jury in Hadfield's case returned a verdict of 'not guilty, it appearing to us that he was under the influence of insanity when the act was committed.' Hadfield was subsequently detained in custody, notwithstanding that at the time he was convicted, there was no lawful basis on which to imprison a person who had been acquitted of an offence. The Criminal Lunatics Act was introduced in response to the lacuna in British criminal law exposed by Hadfield's case: see Sir Owen Dixon, 'A Legacy of Hadfield, M'Naghten and Mclean', (1957) 31 Australian Law Journal 255.

Privacy Bill Passes

This week Victoria’s much anticipated Privacy and Data Protection Bill 2014 (PDP Bill) was passed by the Legislative Council. Once proclaimed, the new Act is set to commence no later than 9 December 2014. 

This Bill repeals the Information Privacy Act 2000 (IP Act) and the Commissioner for Law Enforcement Data Security Act 2005 (CLEDS Act), and creates a new office of the Commissioner for Privacy and Data Protection (Commissioner) with broad powers of oversight and enforcement. The Bill does not affect the existing legislative arrangements whereby Commonwealth agencies and some private sector entities and individuals are subject to the Privacy Act 1988 (Cth) (Commonwealth Privacy Act).  Victoria’s health privacy regime under the Health Records Act 2001 and related legislation is also unaffected by the Bill.

The Bill ushers in a new era with new emphases not only for privacy practitioners but also for public sector body Heads, who will need to pay close attention to their protective data security obligations.

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

Provisions of the IP Act that are taken to be re-enacted include:
• Schedule 1, the Information Privacy Principles (IPPs);
• the requirement that public sector organisations generally must not do an act or engage in a practice that contravenes an IPP in respect of personal information they collect, hold, manage, use, disclose or transfer;
• the codes of practice provisions; and
• the information privacy complaints provisions.

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

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

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

PIDs and TPIDs

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

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

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

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

IUAs 

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

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

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

Certification

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

Protective data security

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

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

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

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

What about law enforcement data security?

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

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

If you are in the Victorian Government and would like assistance to ensure that your agency’s privacy practices comply with the IP Act, or for advice concerning the imminent new Act, call:

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

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

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

VGSO has held a number of small-group workshops to assist clients to understand the scope of their obligations under the Bill.

Places are still available for the final workshop on Friday 29 August 2014 via www.vgso.vic.gov.au .

To request information about customised training or join the waitlist for future workshops please contact Carrie Anderson 9947 1446 or carrie.anderson@vgso.vic.gov.au.

Recent facelift for public sector governance

In the 10th year of its operation, the Public Administration Act 2004 (Act) has had a facelift.  On 1 April 2014, the Public Administration Amendment (Public Sector Improvement) Act 2014 (Amending Act) made a number of key changes to Victoria's public sector governance framework.

These changes are as follows:

1. the State Services Authority (SSA) has now been replaced by the Victorian Public Sector Commission (Commission);
2. subsidiaries of public entities are now classified as 'public entities' under the Act, bringing them within the accountability regime in Part 5 of the Act;
3. Department Heads now have a statutory obligation to oversee public entities; and
4. the Secretary of the Department of Premier and Cabinet has the power to issue administrative guidelines to public entities and their subsidiaries.

The Act also now requires the board of a public entity to assess its own performance (collectively) in addition to assessing the performance of individual board members.

1. The Commission

The Commission, like its predecessor the SSA, is tasked with improving Victoria's public sector administration and governance.

The Commission's objectives are to:

• strengthen the efficiency, effectiveness and capability of the public sector; and
• maintain and advocate for public sector professionalism and integrity.

In addition to carrying out the SSA's existing functions (such as issuing binding codes of conduct for employment standards), the Commission will conduct research and disseminate best practice information in relation to:

• public sector administration;
• governance;
• service delivery; and
• workforce management and development. 

The Commission also has a new advocacy function in respect of public sector professionalism and integrity.

2. Subsidiaries are now 'public entities' 

An important change is the expansion of what constitutes a 'public entity' to cover bodies that fall within the meaning of 'subsidiary' in the Corporations Act 2001 (Cth).  Whether a body is a 'subsidiary' of a public entity depends on the level of control the public entity has over the other body.

Subsidiaries are now regulated by Part 5 of the Act, which prescribes minimum governance standards and accountabilities for Victorian public entities and their boards, directors and chairpersons.  In addition, employees of subsidiaries are now subject to the Code of Conduct for Victorian Public Sector Employees.  These obligations are in addition to any obligations that a subsidiary may have under other Victorian Acts or the Corporations Act.

3. Department Heads to oversee public entities 

In a new development, Department Heads will have a statutory obligation to oversee, and provide guidance to, public entities (and their subsidiaries) within their Ministers' portfolios on matters relating to public administration and governance.

Department Heads will also be required to provide to the relevant Minister information about the performance of public entities that fall within that Minister's portfolio.  This information must, in turn, be provided to the Department Heads by the relevant public entity.

These changes provide an opportunity and an obligation on departments to engage proactively with their entities, including monitoring their performance.  The provisions are intended to enable public entities (and their subsidiaries that are public entities), Departments and Ministers to identify and manage governance risks.

4. Administrative guidelines

The Act now empowers the Secretary to the Department of Premier and Cabinet to issue administrative guidelines to public entities and public services bodies.  The purpose of such guidelines is to ensure that consistent standards of administration are maintained across the public sector.

The guidelines will not be binding, but if a public entity intends to operate inconsistently with them, then it must notify the Secretary and provide reasons.

If you are in the Victorian Government and would like more information about these changes, please contact:

Udara Jayasinghe
udara.jayasinghe@vgso.vic.gov.au

Carolyn Doyle
carloyn.doyle@vgso.vic.gov.au
9947 1403

Katie Miller
katie.miller@vgso.vic.gov.au
8684 0460

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

The current law

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

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

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

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

The new law

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

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

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

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

The meaning of 'serious and wilful misconduct'

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

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

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

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

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

Time for change

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

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

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

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