Employer runs 'fowl' of procedural fairness

On 7 May 2015, the VGSO hosted its seminar. 'An essential ingredient - Procedural fairness in workplace issues: a panel discussion', to a full house of Victorian government agency staff.  Our panel members, Jacqueline Parker, Assistant Victorian Government Solicitor, Joanne Kummrow, Special Counsel, Alice Felman, Principal Solicitor, Andrea Lester, Investigator and Jim McKenna, Barrister, provided insights into the key elements of procedural fairness in the workplace and the importance of conducting thorough and unbiased investigations.

That same week, the Fair Work Commission delivered its decision in Heidi Cannon v Poultry Harvesting Pty Ltd, a sobering example of the consequences of failing to afford procedural fairness.

The untimely demise of a number of chickens

Ms Cannon was dismissed from her employment with Poultry Harvesting for allegedly being intoxicated at work, and sleeping in a vehicle during her shift.  Her neglect of duties led to the 'smothering' of a number of chickens.

After her supervisor (Mr Germinian) received a call from a co-worker reporting that Ms Cannon was 'useless', and apparently intoxicated at work, he attended the site.  Upon being asked several times, Ms Cannon denied that she was intoxicated.  She was dismissed after her supervisor smelt alcohol on her breath.

Later that afternoon, Mr Germinian refused to reconsider Ms Cannon's dismissal on the basis that Ms Cannon had lied to him about her intoxication.  Mr Germinian relied on information from another employee that Ms Cannon's partner had advised him that Ms Cannon had been too intoxicated to drive to work.

Although Ms Cannon admitted to not driving to work because she was concerned she might be over 0.05 if breathalysed, she did not consider herself to be intoxicated.

Ms Cannon made an application to the Fair Work Commission for an unfair dismissal remedy.

No valid reason to dismiss

The FWC found that there was no valid reason for Ms Cannon's dismissal.  Its reasons included:

• Failure to investigate (no steps taken by employer to objectively assess Ms Cannon's condition and reliance on hearsay information about Ms Cannon's fitness to drive) 
• Failure to apply policies (employer did not follow requirements of its own policies which required employees to be stood down from work until they could work in a safe manner, to be issued with a written warning and to be advised of the availability of counselling)  
• Evidence did not support reason for dismissal (despite concerns that Ms Cannon's intoxication could cause a health and safety risk, Ms Cannon was permitted to work until the end of her shift).

No procedural fairness

The FWC also found that Ms Cannon had been denied procedural fairness as a result of a failure to provide her with an opportunity to respond to allegations or to warn her that she was not permitted to drink any amount of alcohol prior to her shift.  The FWC took into account the following:

• the lack of engagement with Ms Cannon about her views regarding the allegations that she was intoxicated or that she had lied about her alleged intoxication; and
• the lack of an opportunity for Ms Cannon to respond to the allegation by Mr Germinian that Ms Cannon had brought into the premises a can of alcoholic beverage that Mr Germinian found in the shed.  

The Cannon case highlights many of the key themes discussed at the VGSO seminar, including:

• ensuring employees are aware of the standards of behaviour to which they are being held to account, such as their obligations under relevant instruments (eg the Code of Conduct, the Public Administration Act 2004 or the VPS Determination); 
• following the requirements set out in policies or instruments with respect to the management of misconduct or performance processes;
• informing the employee, at the commencement of the process, of the potential outcomes and consequences for their employment; and
• providing a genuine opportunity for the employee to respond or to offer mitigating circumstances with respect to the allegations, the findings and the proposed outcome.

For further advice on your agency's obligations of procedural fairness in the workplace, please contact:

Romina Woll
Senior Solicitor
t  9032 3026
romina.woll@vgso.vic.gov.au

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

Legislative instruments — Are yours in tune?

No inconvenience in government administration can, in my opinion, be allowed to displace adherence to the principle that a citizen should not be bound by a law the terms of which he has no means of knowing.

Chief Justice Barwick, Watson v Lee  (1979) 

Most of us know the maxim 'ignorance of the law is no excuse'.  But how can a citizen be expected to know about, let alone comply with, a law that has not been published?
Since 1 July 2011, new rules under the Subordinate Legislation Act 1994 (SLA) govern the preparation, making, publication and review of 'legislative instruments'.

The consequences of failing to comply with the SLA's requirements could be serious, including possible invalidity or disallowance of an instrument.  In this blog, we

• explain what is, and what is not, a 'legislative instrument';
• outline what the new laws say agencies must do; and
• give practical tips on things agencies should do to achieve best practice.

What is a legislative instrument?

To comply with the new laws, you first need to determine whether a particular instrument is legislative or administrative.   Put simply, any instrument that has a legislative character is a 'legislative instrument', unless otherwise designated or exempted  by the SLA (e.g. statutory rules and planning schemes) or other legislation.

Case law has developed principles for determining whether an instrument has a 'legislative character' by examining what the instrument does.  Under these principles, the distinction between legislative and administrative actions '…  is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases'.

A number of factors must be taken into account, such as whether the instrument alters pre-existing law, creates or changes legal rights and obligations, is mandatory or has general application.[1]   Usually, these principles are easy to apply — but not always.  In cases of doubt, given the potential consequences, it may be wise to seek legal advice.

In many cases, an instrument is specifically characterised as legislative or administrative by:

• the Subordinate Legislation Act 1994 [2]; 
• the Act under which the instrument is made; or
• the Subordinate Legislation (Legislative Instruments) Regulations 2011.

What does the SLA require?

The SLA imposes a number of requirements on agencies that make or administer legislative instruments, including those outlined below.

Preparation 

Agencies must

• consult other agencies and stakeholders during preparation, unless exempt;
• prepare a regulatory impact statement (RIS) if the instrument would impose an appreciable economic or social burden, unless exempt;
• conduct a human rights assessment of every proposed legislative instrument, identifying and justifying any limitation of the rights set out in the Charter of Human Rights and Responsibilities [3];  and
• prepare certificates of compliance with or exemption from these requirements.

Making 

Agencies must

• arrange tabling in Parliament of all new legislative instruments, unless exempt; and
• provide copies of all new legislative instruments and associated certificates (unless exempt) to Parliament's Scrutiny of Acts and Regulations Committee (SARC), which can recommend disallowance.

Publication

Agencies must

• publish all new legislative instruments in the Government Gazette, either in its next General edition, or in a Special edition within 10 working days (this often supersedes less onerous requirements in the authorising Act [4]); and
• prepare up to date consolidations of amended instruments, unless exempt; and
• publish copies of instruments in force, including any consolidations, on the internet and also make them available for public inspection in hard copy.

Legislative instruments exempt from RIS and tabling must still be gazetted.[5]

Good practice tips

There are a number of things not required by the SLA but which agencies should do as a matter of good practice to make the law more accessible and easier to understand for members of the public. They will also make administration easier.

In particular, it is good practice for agencies

• to draft using the standards and format for statutory rules, and to use plain English;
• to remake an instrument rather than make extensive amendments to it;
• to have a second person check the draft before an instrument is made — the criteria set out in the SLA at s. 13 (for proposed statutory rules) and at s. 25A (which SARC applies in reviewing instruments) provide useful checklists; and
• to retain revoked instruments and superseded consolidations on websites, so that members of the public can find what the law was at any point in time.

Getting In Tune - Legislative Instruments workshops

In conjunction with the Office of Chief Parliamentary Counsel, VGSO will be holding lunch time workshops for clients titled Getting In Tune - Legislative Instruments.

The workshops will cover the rules, procedures tips and traps of creating and maintaining legislative instruments.

These will be held on:
Tuesday 28 July, 12.30pm
Thursday 30 July, 12.30pm

To register your interest, please contact marketing.team@vgso.vic.gov.au 

For assistance on these issues contact:

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0416

Mark Miller
General Counsel

9947 1408

[1] See RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185 at 202, and Visa International Services Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at 424. See also the Premier's Guidelines under the Subordinate Legislation Act 1994 published in the Government Gazette of 4 August 2011, at pages 1798 to 1799  Government Gazette of 28 August 2014 at pages 1906 to 1938.
[2] See the definitions of 'legislative instrument' and of instruments of a 'purely administrative nature' in s. 3.
[3] The VGSO's human rights and equal opportunity practice group can assist agencies with Charter assessments and the preparation of certificates:  Contact Catherine Roberts, Managing Principal Solicitor.
[4] See in particular section 16D of the Subordinate Legislation Act 1994, which deals with how to reconcile dual or competing publication requirements of the SLA and the authorising Act.
[5] See regulation 7 of, and Schedule 3 to, the Subordinate Legislation (Legislative Instruments) Regulations 2011.

Identity crisis: The importance of identifying the correct party to a contract

The importance of identifying the correct party when entering into a contractual arrangement is paramount.

When working as a government lawyer, you can often find yourself in unusual situations, like buying chaff for horses, bullet proof vests for dogs and canned soup for prisoners.  In the context of purchasing goods from local suppliers, knowing who is responsible when the goods are faulty is essential.  Getting this wrong can create significant issues when it comes to disputes and when seeking to enforce terms of the contract.

It is easy to make mistakes and errors can arise in a number of ways:

• referring to a non-existent company;
• not referring to the correct individual or correct company; or
• referring to a business name, rather than the holder of that business name.

Sometimes it is difficult to identify the correct party - there are multiple ways to set up and manage a business and just navigating company searches can be  a challenge. Companies can trade under numerous business or trading names, but it is the holder of that business or trading name that is the legal entity for contracting purposes.

Although courts will strive to ascertain the correct contracting party by applying a test of what a reasonable person would think, it is important to know how to undertake this process correctly from the outset.  Fortunately, post-contractual communications may be of aid to a court that is asked to determine the correct contracting entity.  However, it is preferable not to have to rely on, for example, email chains with a supplier, to overcome an incorrect party name in the contract.

To avoid the risks associated with contracting with the wrong entity, it is important to:

• have a written contract or written confirmation of an oral contract , not an oral one;
• confirm the contracting entity by:
• asking the other party to provide their business details (i.e. ABN/ACN); and
• undertaking company searches on ASIC (via ASIC Connect) to verify those business details are for the correct entity, 
• if the entity uses a business name, confirm that the holder of the business name (via ASIC Connect) is the entity listed in the contract; and
• ensure that signature blocks clearly set out the capacity in which a person signs on behalf of their company, partnership or as a sole trader.

If you are unsure who you are contracting with, please seek legal advice.

Carolyn Doyle
Managing Principal Solicitor
9947 1403

Sanishya Fernando
Solicitor
9947 1439

To retain or not to retain, that is the question: PROV's new record keeping policy

 Interest in records management tends to be events driven.  Last year the release of the Privacy and Data Protection Act 2014 (PDP Act) heightened awareness of data security issues for government entities.  Then in the lead up to the 2014 State election, minds were turned to which documents should be retained, or not retained, as the case may be.  

But best-practice records management presents constant challenges in respect of both form and content of records.  Records now come in diverse forms - not only traditional paper documents and record-keeping or business systems, but also email and social media accounts and network drives, for example.  But their significance is premised on their nature and content, which in some cases can be difficult to assess. 

Additional guidance is now to hand.

New policy released

In February this year, Public Record Office Victoria (PROV) released an over-arching policy on record-keeping for the Victorian Government, pursuant to its responsibility for collecting and preserving records from all Victorian government and local governing bodies whose records are public records under the Public Records Act 1973 (PR Act).    

PROV's new 'Record Keeping Policy: Appraisal Statement for Public Records required as State Archives' (Appraisal Statement) sets out the key appraisal considerations for specifying and identifying those Victorian records that are of permanent value to the Government and people of Victoria.  

What is 'appraisal'?

Appraisal is the process by which those records that are required for preservation as State Archives are identified by Government agencies.  In PROV's words:

appraisal is a planned and documented process based on research and analysis to provide transparent, reasoned and consistent reasons for the retention or non-retention of records. It is a reasonably complex, judicious and somewhat subjective process that involves the evaluation of the continuing value of records for the government and community against the cost of retaining and keeping the records accessible in perpetuity.

PROV has divided the characteristics of records of enduring value into the following six categories:

1. The authority, establishment and structure of government;
2.  Primary functions and programs of government;
3. Enduring rights and entitlements (of individuals and groups);
4. Significant impact on individuals;
5. Environmental management and change; and
6. Significant contribution to community memory.

Some of these activities and associated records are relatively self-evident.  For example, in respect of the second category, PROV lists the State budget papers as an example of 'Records that illustrate the government's role in the management of the Victorian economy'. 

However other categories, notably the fourth, are potentially more problematic.  Here PROV's guidance is particularly useful in circumstances where appraisal decisions may affect the 'most vulnerable members of Victorian society'.  Records listed as potentially falling into category four include:

• Collections and analyses of data compiled for planning and decision making;
• Representations and appeals against the decisions/actions of government or legislature; and
• Petitions documenting significant community opposition to government actions or policies.

Records not of permanent value

But what about those records appraised as not being of permanent value? All public records must continue to be retained for as long as they're needed to meet Government's administrative needs and legislative requirements, and to support accountability and community expectations. Section 19 of the PR Act has the effect that it is unlawful to dispose of or destroy a public record other than in accordance with a Standard made under s 12.  Minimum periods are set out in the Standards, or Retention and Disposal Authorities, issued by PROV for use by Government agencies.

Retention periods and personal information

Since opinions may differ as to how an individual record should be categorised in light of the Standards, these minimum periods are not without controversy, particularly in light of the requirements of Information Privacy Principle (IPP) 4.2 of the PDP Act (and its predecessor in the Information Privacy Act 2000).  IPP 4.2 requires destruction or permanent de-identification of personal information 'if it is no longer needed for any purpose'. 

The PR Act prevails over IPP 4.2 as a result of s 6 of the PDP Act (and previously s 6 of the IP Act).  Decisions of the Victorian Civil and Administrative Tribunal have accepted that personal information retained pursuant to a requirement of the PR Act is still relevantly 'needed' for a purpose (Caripis v Victoria Police(Health and Privacy) [2012] VCAT 1472; Zeqajv Victoria Police (Human Rights) [2013] VCAT 2105). 

Agencies should therefore be aware that retention of personal information beyond the retention period specified in a relevant Standard increases their risk if a complaint is made under IPP 4.2.  Moreover, when protective data security standards are released this year under the PDP Act, agencies may need to reevaluate the cost of managing any records that they are not required to retain.

If you are in the Victorian Government and would like assistance in respect of your agency's records management or privacy obligations, contact:

Carolyn Doyle

Managing Principal Solicitor

9947 1403

Deidre Missingham

Senior Solicitor

8684 0483

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Pranking doesn't pay: when can a licensing authority inquire into criminal conduct by a licensee?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd, a judgment handed down on 4 March 2015, the High Court considered the circumstances in which a regulator can investigate and make findings with respect to alleged criminal conduct by a licensee. The case arose out of a now infamous incident in which Australian commercial radio personalities Mel Greig and Mike Christian telephoned nurse Jacintha Saldanha claiming to be members of the British royal family and sought information regarding the health of the Duchess of Cambridge. The prank call was recorded and broadcast on Today FM's Hot 30 Countdown program on 5 December 2012. Ms Saldanha later committed suicide.

Action by the Australian Communications and Media Authority

ACMA investigated the conduct of Greig and Christian for the purpose of determining whether action should be taken with respect to Today FM's commercial radio broadcasting licence. In a preliminary investigation report, ACMA concluded that Greig and Christian had committed a breach of the Surveillance Devices Act 2007 (NSW). ACMA therefore determined that Today FM had breached a condition imposed upon its commercial radio broadcasting licence by the Broadcasting Services Act 1992 (Cth) (the Act) that it not use its broadcasting service 'in the commission of an offence against … a law of a State'.

Court Proceedings

Today FM sought a declaration in the Federal Court that the Act does not authorise ACMA to make a finding that a licensee has committed a criminal offence. It submitted that the Act only authorises ACMA to take notice of the fact that a licensee has been convicted of an offence by a court. In the alternative, Today FM submitted that the Act breaches the separation of powers mandated by the Commonwealth Constitution by investing ACMA with judicial power.

Today FM's application was dismissed by Edmonds J. An appeal to the Full Federal Court was allowed. ACMA appealed to the High Court.

Judgment of the High Court

French CJ, Hayne, Kiefel, Bell and Keane JJ stated that 'it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.' ACMA was required to determine, to the civil standard of proof, whether criminal conduct had occurred. However, this was to be done as a step in determining whether ACMA should take administrative action in response to a breach by Today FM of its licence conditions. ACMA was not required to determine criminal guilt as a step in the infliction of punishment. According to the majority, there was nothing 'incongruous' about conferring upon a licensing authority power to determine whether a broadcasting service had been used in the commission of a criminal offence.

The majority rejected Today FM's constitutional argument in peremptory fashion, stating that 'none of the features of the power conferred on the Authority to investigate and report on breach of the … licence condition and to take consequential administrative enforcement action support the conclusion that it is engaged in the exercise of judicial power.' Gageler J delivered separate concurring reasons.

What does this case mean for decision-makers?

Administrative decision-makers are often called upon to determine whether conduct amounting to the commission of a criminal offence has taken place. Thus, for example, a Tribunal exercising functions under the Health Practitioner Regulation National Law may be called upon to determine on the balance of probabilities whether a health practitioner has engaged in professional misconduct amounting to the crime of rape or indecent assault.

The Court's decision in Today FM is a reminder that the treatment of criminal offences in the context of administrative decision-making is a wholly different matter from the conduct of criminal proceedings. Administrative decision-makers are not bound by the rules of evidence and must take into account all information that is relevant to the performance of their statutory functions. They apply standards of satisfaction as to factual matters that are fundamentally different from the standard of proof applied by criminal courts. Thus an administrative decision-maker may properly conclude that an offence has been committed even where an acquittal has been entered in respect of the offence by a criminal court. In addition to confirming the scope of ACMA's jurisdiction under the Act, Today FM provides a valuable caution against implying principles of criminal law into administrative decision-making.

Of course, Today FM is a corporation and is not entitled to the privilege against self-incrimination. The issues considered by the High Court in Commissioner of the Australian Federal Police v Zhao were therefore not relevant to this matter. It should, however, be borne in mind that in an appropriate case, an injunction may issue to restrain an administrative decision-maker from acting in circumstances where the performance of its functions may undermine an accused's right to silence.

For queries relating to any of the issues identified in this blog, please contact:

Jonathan Bayly

Principal Solicitor

jonathan.bayly@vgso.vic.gov.au

Janine Hebiton
Managing Principal Solicitor

janine.hebiton@vgso.vic.gov.au

Sporting chance for all - Equality for transgender people in sport and work

The recent media coverage of a high profile rugby union player reporting the use of derogatory slurs on-field highlights the issue of discrimination in sport.  This incident is timely as, in January, the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) released a new guideline titled Transgender People and Sport.  This follows the release of the previous guideline, Transgender People at Work (updated in July 2014).

The Equal Opportunity Act 2010 (EO Act) protects transgender and intersex people from discrimination on the basis of their gender identity in a number of areas of public life.  In addition to sport and work, these include education, provision of goods and services, accommodation and clubs.

New guidelines

The two guidelines outline legal obligations under the EO Act in relation to sport and work, as well as practical information about gender identity issues, including lists of useful terms, case studies and decision-making steps.  While not legally binding, a court or tribunal may consider whether the guidelines have been complied with when hearing a discrimination complaint.

Discrimination on the basis of gender identity

The EO Act protects transgender and intersex people from both direct and indirect discrimination on the basis of their gender identity (ss 6(d) and 7).  Direct discrimination occurs when a person is treated, or proposed to be treated, unfavourably because of their gender identity (s 8(1)).  Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed, or proposed to be imposed, which has, or is likely to have, the effect of disadvantaging a person with a particular gender identity (s 9(1)).

It is also unlawful to ask a person to specify their gender identity where there is no legitimate, non-discriminatory reason for needing this information (s 107).

'Gender identity' is defined in s 4 of the EO Act as the identification by a person of one sex (or of indeterminate sex) as a member of another sex on a genuine basis.  This identification could be by:

• assuming characteristics of the other sex, whether by medical intervention, style of dressing or otherwise; or
• by the person living, or seeking to live, as a member of the other sex. 

The rights of transgender and intersex people are also protected under the Charter of Human Rights and Responsibilities Act 2006.

Transgender people and sport

This guideline is aimed at sporting organisations, clubs and staff.  It will also be useful for schools and universities.  The guideline explains that it is unlawful to discriminate against a person on the basis of their gender identity by failing to select them or excluding them from participating in sporting teams and activities, unless a relevant exception applies (s 71).  It also explains that it is against the law to discriminate against a person on the basis of their gender identity in club membership, including sporting clubs (ss 64 and 65), although it may be lawful for clubs to limit membership to a particular sex (s 68).

Transgender people at work

This guideline is aimed at all employers, and is relevant to all government departments and public entities.  VEOHRC has also produced resources for developing a transition plan for transgender employees as well as a policy template.  These documents will be useful for human resources professionals and anyone with responsibility for interviewing or recruiting new employees.

The guideline explains that it is unlawful to discriminate against job applicants and employees because they are transgender (ss 16 and 18).  The only exception is if there is a 'genuine occupational requirement' for employees to be of a particular sex (s 26).

If you are in the Victorian Government and would like further information about your responsibilities under the Equal Opportunity Act 2010, please contact:

Catherine Roberts
Managing Principal Solicitor
8684 0247
catherine.roberts@vgso.vic.gov.au

David Catanese
Principal Solicitor
9032 3040
david.catanese@vgso.vic.gov.au

Should I stay or should I go (ahead)? Staying civil proceedings when they threaten a fair trial

In the recent case of Commissioner of the Australian Federal Police v Zhao, the High Court granted a stay of civil forfeiture (asset confiscation) proceedings to protect a defendant's right to a fair trial in related criminal proceedings. The Court's decision contributes to a body of law that addresses the question how a court should respond when the conduct of civil, disciplinary or inquisitorial proceedings threatens to prejudice the fair conduct of criminal proceedings.

The facts

On 2 July 2013 Mr Xin Jing was charged with offences against the Commonwealth Criminal Code. Shortly after the charges were laid, the Commissioner of the Australian Federal Police commenced proceedings in the County Court of Victoria seeking an order that the family home of Mr Jing and his wife, Ms Qing Zhao, be forfeited under the Proceeds of Crime Act 2002 (Cth) on the grounds that the property represented proceeds of the offences with which Mr Jing was charged.
Mr Jing and Ms Zhao sought an order that the forfeiture proceedings be stayed until the charges against Mr Jing had finally been determined. They argued that defending the forfeiture proceedings would require Mr Jing either to give evidence that might be used against in him in the criminal proceedings or to divulge the details of his defence before the conclusion of the prosecution's case. Mr Jing and Ms Zhao said that to allow the forfeiture proceedings to continue would rob Mr Jing of his right to silence.
The application for a stay of the forfeiture proceedings was refused in the County Court. However, an appeal to the Court of Appeal was successful. The AFP Commissioner then appealed to the High Court.

The High Court's Decision

The High Court determined unanimously that the Commissioner's appeal should be dismissed. In reaching its decision, the Court first noted that the continuation of the forfeiture proceedings would expose Mr Jing to a risk of prejudice in his defence of the criminal proceedings. The Court then held that the interests of justice would not be served by 'requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings are finalised, especially since the Commissioner will suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.'

Relevance of the decision

Zhao builds on a series of recent decisions, including X7 v Australian Crime Commission and Lee v The Queen, in which the High Court has considered the means by which courts may ensure that the conduct of civil, disciplinary or inquisitorial proceedings does not prejudice the interests of an accused in pending criminal proceedings, either by requiring the accused to divulge his or her defence ahead of time or by requiring the accused to provide information that is likely to be incriminating. The cases show that courts have a range of means of ensuring that the fair conduct of criminal proceedings is not prejudiced by the conduct of other proceedings, such as:

• A stay order like the one in Zhao may be made by a superior court in its supervisory jurisdiction or may be made by an inferior court in the exercise of its implied powers. A superior court also has inherent jurisdiction to restrain contempt; this jurisdiction extends to making an order restraining a body with investigative powers (such as a disciplinary board) from seeking to compel a person charged with an offence from answering questions that relate to pending criminal proceedings.
• Where a statutory provision confers investigative powers on an office holder, a court will be reluctant to interpret the provision in a manner that empowers the office holder to compel the production of information that relates to pending criminal proceedings. It is only where clear and unambiguous terms are employed that a statute will be interpreted to require the production of information in breach of an accused's right to silence.
• Even where a provision empowers a statutory office holder to compel a person to provide information that may implicate him or her in the commission of an offence, the information will generally be held to be subject either to 'use immunity' or 'derivative use immunity'. Use immunity prevents information obtained by an investigator pursuant to his or her compulsive powers from being used directly in criminal proceedings. Derivative use immunity prevents evidence found or discovered as a result of the giving of information to an investigator from being admitted.

Finally, where an accused has been required by an investigating body to provide information in breach of his or her right to silence, improper provision of that information to prosecuting authorities may require any subsequent conviction to be quashed.

For queries relating to any of the issues identified in this blog, please contact:

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

Rodney McInnes
Principal Solicitor
rodney.mcinnes@vgso.vic.gov.au