Lease vs Licence - What difference does it make? (Part 2)

Based on the public and personal feedback, our blog topic from September 2015 on the differences between leases and licences certainly seems to have been quite topical.

One reader requested that we provide some more examples for Government practitioners of circumstances where a lease or a licence might be appropriate.  Of course, the particular circumstances of the transaction will determine the form of tenure that is appropriate for the intended use of premises.  With that in mind, we provide some further examples of where a lease or licence might be appropriate for the intended use of the premises.

Lease examples

In short, a lease will be appropriate where the tenant requires exclusive use of land and/or premises for the permitted use.  Where government is the tenant, such uses include delivery of long term projects and services, for example prisons, hospitals and police and court house facilities. 

Where government is the landlord, such uses would include:

• commercial or trading purposes where the operator will undertake a fitout and install furniture, computers, etc;
• sensitive and important community services such as the provision of child care facilities; and
• provision of education services, such as by a TAFE institute.

Licence examples

The granting of exclusive possession and other leasehold rights is not necessary for all land uses.  Common examples of where a licence of land may be appropriate include:

• installation of power line infrastructure by an electricity generation company;
• special event licences for community, cultural or sporting events;
• site investigations for development proposals;
• construction licences or licences for the installation of services and utility infrastructure; and
• cutting or taking away fallen or felled trees for domestic use as firewood.

If you would like further advice regarding land use arrangements and other property issues, the VGSO Property Team is well placed to assist you.  Please contact:

Margaret Marotti
Managing Principal Solicitor
9947 1410
margaret.marotti@vgso.vic.gov.au

Anthony Leggiero
Managing Principal Solicitor
9947 1430
anthony.leggiero@vgso.vic.gov.au

Elizabeth Wortley

Senior Solicitor
9947 1433
elizabeth.wortley@vgso.vic.gov.au

To publish or not to publish - a refresher on sub judice contempt

Recently there has been a lot of inquiries in relation to what can be published about upcoming court matters.

On occasion, it is permissible to publish material about upcoming court cases, but commonly, publishing such material may result in the publisher committing the common law offence of sub-judice contempt.

What is sub judice contempt?

Sub judice contempt is the common law offence of publishing material which has a tendency to interfere with the administration of justice while proceedings are sub judice; that is, ‘under a judge’.

The rationale for the offence is to avoid the possibility of  a ‘trial by media’ by prohibiting the publication of material which might either prejudice issues at stake in criminal proceedings, or which might influence or place pressure on persons involved in the proceedings, including jurors, witnesses or potential witnesses.

In order to prove a charge of sub judice contempt, it must be proven to the criminal standard that:

a) material was published;

b) the publication of that material happened while the proceedings were sub judice; and

c) the publication has the tendency to interfere with the administration of justice in the proceedings that are before the judge.

For more details about this common law offence and how to avoid it, read on here.

If you are a Victorian government department or agency and need to know more about sub judice contempt you can contact:

Louise Jarrett
Managing Principal Solicitor
louise.jarrett@vgso.vic.gov.au
(03) 9247 6798

Michael Stagg
Senior Solicitor
michael.stagg@vgso.vic.gov.au 
(03) 9247 6496

Making sense of 'nuisance': Fertility Control Clinic v Melbourne City Council

The picketing of abortion clinics has been a hot button issue for many years in the US. Those protests are often portrayed as a 'clash' of rights between religious freedom and peaceful assembly on one hand, and a woman's right to privacy and control of her body on the other.

However, the recent Supreme Court decision in Fertility Control Clinic v Melbourne City Council shows that the extent to which rights are protected will often turn on the nature and scope of a decision maker's power under legislation.

The case also demonstrates that even though a decision maker may make a legal error, that doesn't necessarily give rise to a legal remedy.

A nuisance?

The Fertility Control Clinic provides pregnancy termination (among other services) at a private clinic in East Melbourne. For at least a decade, members of a religious group called the 'Helpers of God's Precious Infants' (or 'HoGPI', for short) have gathered outside.

The Clinic contacted Melbourne City Council claiming that HoGPI had engaged in nuisance by, among other things, harassing women as they entered the clinic, trying to block access to the clinic, and singing loudly outside consultation rooms.

In Victoria, councils have a duty to investigate a nuisance in their district under the Public Health and Wellbeing Act 2008. If a council finds that a nuisance exists, it has to take certain kinds of action under the Act.

The Council wrote back to the Clinic, stating that it thought most of HoGPI's actions weren't a 'nuisance' within the meaning of the Act (other than maybe blocking entry to the clinic), and recommending that the Clinic ‘settle the matter privately’ by contacting Victoria Police.

What the clinic argued

The Clinic brought proceedings in the Supreme Court arguing that the Council failed to discharge its statutory duty by misinterpreting the meaning of 'nuisance' under the Act. The Clinic sought an order compelling the Council to address the HoGPI protests as a 'nuisance'.

The Clinic also sought a declaration that the Council's advice that the Clinic contact Victoria Police did not meet the statutory definition of 'settling the matter privately'.

Errors by the Council were within power

The Court found that – even though the Council had made a legal error in concluding that HoGPI's conduct wasn't a 'nuisance' under the Act – the Council had not failed to exercise its powers under the Act, and the Council's error was within power.

In other words, the Council had performed its duty under the Act by considering whether a nuisance existed, even if it had made a mistake by misinterpreting the meaning of 'nuisance'.  Therefore, the Court didn't make any orders compelling the Council to reconsider the Clinic's letter or address HoGPI's conduct in any particular way.

The Court also found that the Council made an error in recommending that the Clinic 'settle the matter privately' through Victoria Police. Again, however, the Council's error was within power: the Council had discharged its duty by recommending a way for the Clinic to resolve the matter privately, even if it had made a mistake by recommending a means of resolution that wasn't 'private' at all.

The Court made a declaration that referral to Victoria Police was not a method of 'settling the matter privately' under the Act.

No reliance on the Charter or constitutional issues

The Council initially raised issues under the Commonwealth Constitution and the Victorian Charter of Human Rights and Responsibilities 2006.

The case potentially raised questions of conflicting rights under the Charter. Section 38 of the Charter requires public authorities, including councils, to act compatibly with human rights and give proper consideration to a relevant right when making a decision.

Relevant Charter rights in this context include the right to free movement, and the right not to have one’s privacy arbitrarily interfered or reputation unlawfully attacked. 

Conversely, the following Charter rights of HoGPI members were potentially engaged: freedom of thought, conscience, religion and belief; freedom of expression; and the right to peaceful assembly and free association.

The Court did not have to grapple with whether the Public Health and Wellbeing Act 2008 was a burden on the implied freedom of political communication under the Australian Constitution.

Ultimately, neither party relied on those arguments.

Watch this space: new buffer zone laws

A Bill making it an offence to engage in certain behaviour within 150 metres of an abortion clinic has been introduced into, and second read in, the Legislative Assembly.

Victorian Government clients wanting further information or advice can contact:

CatherineRoberts

Managing Principal Solicitor

catherine.roberts@vgso.vic.gov.au

03 8684 0247

EleanorThomas

Senior Solicitor

eleanor.thomas@vgso.vic.gov.au

03 8684 0425

Reform to the development contributions system

In 2012, the (then) Minister for Planning announced a preferred framework for the development contributions system in Victoria in A New Victorian Local Development Contribution System - A Preferred Way Forward. Issues such as the cost and time taken to prepare a development contributions plan and the level of detail required to justify a contributions levy were identified as reasons that the existing development contributions system in the Planning and Environment Act 1987 should be changed.

The Standard Development Contributions Advisory Committee was appointed by the Minister for Planning in 2012 to review and report on the new system. It did this in two reports: Report 1; Setting the Framework (2012) and Report 2: Setting the Levies (2013). The Advisory Committee examined the existing development contributions system and recommended reforms to it. These included using standard levies that could be applied in all Victorian municipalities in various development settings, to make the process for producing development contributions plans less costly and more efficient.

Recently, the Planning and Environment Amendment (Infrastructure Contributions) Act 2015 (Amending Act) was passed. It is expected to commence early 2016 and will implement some of the recommendations of the Advisory Committee, including setting a standard levy to raise revenue to pay for infrastructure which is needed because of the development of land for residential and other purposes.

What is an Infrastructure Contributions Plan?

The new Infrastructure Contributions Plan (ICP) system will operate in a similar way to the existing development contributions plan (DCP) scheme, with some significant differences. Similar to DCPs, ICPs are a mechanism to raise and distribute money required to pay for certain infrastructure.

Like DCPs, an ICP can be included in a planning scheme to levy financial contributions (an infrastructure levy) to fund the construction of infrastructure (works, services and facilities), the need for which is generated by the development of land. The levy is payable when a person seeks to develop land.

ICPs cannot be used to levy contributions for State infrastructure in areas where the growth areas infrastructure contribution (GAIC) applies.

What levies can be required under an ICP?

Unlike DCPs, the infrastructure levy imposed under an ICP can consist of a standard levy or a supplementary levy.

Although not explicit in the Amending Act, it is proposed that the Minister for Planning will make directions which will state that the standard levy is to be used to fund 'basic and essential' infrastructure items selected from a pre-set list of 'allowable' items for residential, retail and commercial development. The allowable items are to be defined in the Ministerial directions and are likely to include items such as transport, community and recreation facilities, and a public land component. The standard levy can be picked 'off the shelf' from the allowable items list for certain areas.

The supplementary levy can be imposed to fund infrastructure that cannot be funded from the standard levy. The use of the supplementary levy (and the rate at which it will be set) will need to be justified each time it is used, unlike for the standard levy.

Where do ICPs apply?

Although it is not explicit in the Amending Act, it is expected that the Minister's directions will initially permit ICPs to be used in greenfield growth areas and strategic development areas in metropolitan and non-metropolitan areas. Greenfield growth areas will accommodate Melbourne's urban growth and are usually located on the periphery of urban areas. Strategic development areas are generally identified in Plan Melbourne and are located on sites that provide development opportunities close to public transport and other infrastructure.

Who are the levies paid to?

The levies are paid to local councils, and relevant State agencies who will be responsible for constructing the infrastructure specified in the ICP (such as VicRoads for certain roads and intersections). With the agreement of the State agency or council, land can be set aside on which infrastructure such as roads, community facilities and parks can be constructed.

How is this relevant?

Once the ICP system is operating, State agencies who have a role in providing works, services and facilities to meet the infrastructure needs of new development in greenfields growth areas and strategic development areas will need to be aware of the differences between the existing DCP system and the new ICP system.

This will include familiarity with the types of State infrastructure that can be funded under ICPs (such as public transport improvements). Funding for State infrastructure is expected to be raised via the supplementary levy (and only for areas where the GAIC does not apply).

State agencies can be expected to have a role to play when a supplementary levy is required to fund the cost of providing State infrastructure, including having input into the justification for a supplementary levy for these purposes.

Victorian Government clients seeking advice on land, planning and environment issues can contact:

Juliette Halliday

Managing Principal Solicitor

8684 0299

Mark Egan

Principal Solicitor

8684 0489

The High Court puts SA breath test laws to the fairness test

Under South Australian drink-driving laws, if you blow a positive breath test you can go to a doctor of your choice and get a blood test to confirm its correctness. But what happens if the doctor makes a mistake and the blood test can't be used? In a case that made it all the way to the High Court, that's exactly what happened, provoking an interesting debate over judges' discretion to ensure a fair trial.

In SA Police v Dunstall [2015] HCA 26, the High Court rejected an argument that courts can exclude evidence for broad-textured reasons of 'fairness', where to do so would be contrary to the intent of Parliament in a particular legislative scheme.

How did it get to the High Court?

Mr Dunstall had successfully argued for a Magistrate to exclude evidence of his positive breath test taken by police on the basis of 'general unfairness'. While he had taken the opportunity to challenge his drink-driving charge by obtaining a blood test in the manner provided for under SA law, the medical practitioner who performed the test failed to take enough blood so the sample couldn't be analysed, and it couldn't be used to challenge or confirm the blood alcohol reading on his positive breath test.  Of course, once the breath test evidence had been excluded, there was insufficient evidence to sustain a drink-driving conviction.

SA Police appealed the Magistrate's decision, and lost, in the SA Supreme Court and Full Court.  The appeal then went to the High Court, which found in favour of SA Police.

The 'fairness discretion' and the question before the High Court

It was no surprise that the Court confirmed the existence of a 'fairness discretion': a trial judge has certain discretionary powers to ensure that an accused receives a fair trial according to law, including by excluding evidence or, in rare cases, by ordering a stay of proceedings.

A trial judge can exclude evidence in three well recognised categories of discretion:

• The Christie discretion allows a judge to exclude evidence where its probative value is outweighed by the risk of prejudice to the accused person.  
• The Bunning v Cross discretion enables a judge to exclude evidence that has been tainted by illegality or impropriety.  
• The Lee discretion enables the exclusion of confessional statements where certain rules about how confessions can be obtained have been breached.

None of these 'discretions' were available in the case of Mr Dunstall's blood test, which was best characterised as a 'loss of evidence' through no fault of either party.  The High Court had to decide whether a judge has power to exclude probative evidence simply on the basis that its admission could be unfair to the accused.

The High Court's decision

The Court found that Mr Dunstall's argument failed to come to terms with the legislative scheme.  Under the SA law, the offence of drink-driving was established by proof of the breath analysis reading alone.  Blood test evidence could be used to confirm, or to call into question, the breath test evidence, but a defendant does not have a statutory 'right' to blood test evidence to rebut the presumption that the breath test was reliable.  The onus is wholly on the defendant to procure the 'second opinion' evidence.  Where the defendant tries to obtain blood test evidence and, through no fault of their own or that of the Police, these efforts fail, it is clearly intended by the SA legislation that the evidence of the individual's blood alcohol level provided by the breath test cannot be challenged.  The only circumstances in which the breath test could be challenged where a faulty blood test was taken were those explicitly provided for in the legislation, ie where a faulty test kit was provided to the accused by Police.  Accordingly, in this case it was not open for a court to decide to exclude the breath test evidence.

In a separate concurring opinion, Justice Nettle considered the scope of a potential fairness discretion, finding that a 'residual discretion' exists to permit a judge to exclude otherwise admissible evidence to prevent an 'unacceptable risk of miscarriage of justice'.  However, Nettle J found that Mr Dunstall could not show an unacceptable risk of injustice, but only that the loss of his blood test evidence 'might have' have had such a result.  In Nettle J's words, the fairness discretion does not exist:

to give effect to idiosyncratic notions of "fair play" or "whether the forensic contest is an even one", still less to deny effect to statutory  modifications of common law means of proof which, because of idiosyncratic notions of what is fair, a judge may disapprove.

In short, the 'unfairness' in Mr Dunstall's case resulted from the proper operation of the legislative scheme itself.  Whatever the scope of a court's 'fairness discretion' to prevent injustice in a criminal proceeding, it cannot override the clear intent of Parliament.

Victorian Government clients seeking advice on public law can contact:

Rachel Amamoo
Managing Principal Solicitor
03 8684 0899

Jordina Rust
Solicitor
03 8684 0468

Key features of the Corrections Legislation Amendment Bill 2015

This week the Corrections Legislation Amendment Bill 2015 (Bill), was passed by the Victorian Parliament.
On its commencement, the new act will mean Victoria's parolees will be subject to cancellation of parole should they receive an interstate or overseas prison sentence whilst on parole. The Adult Parole Board's power to compel production of documents or attendance of witnesses is codified and procedural changes to the Board are made, while the power of prison Governors to monitor prisoners electronically is made explicit. Victoria Police will have an additional 12 months to commence proceedings against a parolee for breach of parole conditions under amendments to the Corrections Act 1986 (Corrections Act).

The Bill also amend the Corrections Act to codify the powers of prison Governors, the Adult Parole Board and Victoria Police.

Interstate Prison Sentences against Parolees

Following the decision of the Supreme Court of Victoria in Mercorella v The Secretary to the Department of Justice [2015] VSC 18, the Bill clarifies that parolees may have their parole cancelled if a court in or outside of Victoria imposes a term of imprisonment for offences committed either before or during the parole period.

Adult Parole Board's power to compel evidence

The Bill clarifies the Board's power to compel persons to produce specified documents or attend meetings of the Board to give evidence.  Where a notice to attend is issued to a person in custody, the Board will be able to direct the Governor of the prison to facilitate the attendance of the prisoner, either in person or by video link.
In relation to taking evidence, the Bill confirms the Board is not a court and is not bound by the rules of evidence.  However, the Board may require a person who attends under a notice to attend, to give evidence on oath or affirmation.
In the absence of a reasonable excuse, it is an offence for a person to fail to comply with a notice to produce or notice to attend, potentially attracting a term of imprisonment or fine.

Electronic monitoring of prisoners in prisons

Under the Bill, a new provision is inserted in the Corrections Act to explicitly permit a Governor of a prison to order electronic monitoring of a prisoner.  Examples of possible uses given in the second reading speech are to monitor the movements of selected prisoners within certain areas, to keep certain prisoners separated, or to assist in a medical response if the monitor indicates that a prisoner has stopped moving.
The current s 23, which gives a prison officer general powers to give an order to a prisoner for the security or good order of the prison or the safety or welfare of the prisoner or other persons, is not affected by the new provision.

Time frame for commencing proceedings for breach of parole conditions

Currently, a parolee commits an offence if he or she breaches the conditions of their  parole.  Under the Corrections Act, Victoria Police must commence proceedings against a parolee for breaching his or her parole conditions within 12 months of the date of commission of the alleged offence.
To prevent the time limit of 12 months resulting in some breach proceedings being statute barred because a breach of parole conditions may not be readily apparent before the 12 months elapses, the time limit is extended to 2 years.  This will allow for a criminal investigation to evolve over time, and for  Victoria Police to await the outcome of court proceedings related to other offences.
Among other changes, the Bill will also permit the Secretary to the Department of Justice and Regulation to authorise departmental officers to perform the roles of a community corrections officer, regional manager and secretary to the Board.

Brendan McIntyre
Principal Solicitor
9947 1435


Elizabeth Wortley
Senior Solicitor
9947 1433


Debra Coombs
Principal Solicitor

Charter review handed down today!

The 2015 Review of the Victorian Charter of Human Rights and Responsibilities was handed down today.

The Charter Review 2015 is titled 'From Commitment to Culture' and looks at ways to make the Charter more accessible, effective, and practical.

The Review contains a number of recommendations that may herald an exciting new era for the Charter, including:

• a separate cause of action (minus damages) to VCAT
• dispute resolution procedures via the Victorian Equal Opportunity and Human Rights Commission, and
• a range of other initiatives and amendments.

We look forward to the Government's response to the Review.

For more information about the Charter Review 2015, or the Charter and its application to Victorian Government clients, please contact:

Catherine Roberts
Managing Principal Solicitor
03 8684 0427