A civil penalty is not a criminal sentence by any other name

Regulators' speaking roles in civil penalty determinations restored by the High Court

Last week, the High Court delivered an important judgment for regulators in civil penalty proceedings.  In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU and Director, Fair Work Building Industry Inspectorate, the High Court unanimously held that Courts are not precluded from considering and, if appropriate, imposing civil penalties that are agreed between the parties. 

What's new about that?  Isn't that the way it always works?

Not exactly.  In May this year, the Full Court of the Federal Court significantly constrained the ability of Courts (and potentially Tribunals) to consider and give effect to agreements between regulators and other parties about the suitable penalty for a regulatory breach.  

As many of our State clients would know (and as the High Court has now said is sound practice) in a multitude of regulatory proceedings - from breaches of employment awards to director’s duties – regulators as diverse as the Fair Work Ombudsman to ASIC had often reached agreement with an accused on a form of civil penalty.  That agreement was then proposed to the courts who, if it was considered appropriate, imposed the agreed penalty.  Trial times were shortened and, among other things, the regulators’ resources could be put to other uses, such as monitoring compliance. 

With the Full Court’s decision, however, this longstanding practice was held to be unlawful.  For the Full Court, the task of ordering a civil penalty was very much like imposing a criminal sentence.  As a result, it applied the principle in Barbaro, which prohibits a criminal prosecutor from making submissions as to the appropriate sentencing range or ultimate sentencing outcome, to the civil penalty context.  At the heart of the Court's concern was the idea that by agreeing on a penalty, parties may 'bind the Court' to make their preferred order and undermine its role in determining an appropriate penalty. 

Since May, then, real questions have existed in many jurisdictions about the lawfulness of regulators’ speaking roles in any civil penalty determination.  Were regulators to be like prosecutors – silent and dispassionate? Or, alternatively -  invested, knowledgeable, agencies with a range of unlawful conduct expertly in their sights?  

High Court Decision

On appeal, the High Court determined unanimously that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties.   While the High Court noted that there was some similarity between the task of imposing civil and criminal penalties – the tasks are, it said, fundamentally of a different character.  The Court rejected any attempt to apply Barbaro to civil penalty proceedings.  Moreover, the Court held that a court is not bound by the penalty suggested by the parties, reiterating that it must ask 'whether their proposal can be accepted as fixing an appropriate amount'.  The judgments also spend considerable time endorsing the traditional model of regulator agreement and regulators' speaking role when proposing the terms and quantum of a penalty, stating:

• there is important public policy involved in promoting predictability of outcome in civil proceedings;
• the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcomes for regulators and wrongdoers; and
• it must be accepted that judges will do their duty, as they have been sworn to do, and reject any agreed penalty submission if not satisfied that what is proposed is appropriate.

For advice on regulatory proceedings and civil penalties, now the silence has been lifted, contact:

Greg Elms

Managing Principal Solicitor

8684 0414

greg.elms@vgso.vic.gov.au 

Janine Hebiton

Managing Principal Solicitor

8684 0450

janine.hebiton@vgso.vic.gov.au

Plan Melbourne 2016

What are the issues of relevance to me?

The Victorian Government has released a discussion paper on the refresh of Plan Melbourne.

Plan Melbourne 2016 will be published in the first half of next year, and will build on Plan Melbourne 2014.  On 18 June 2014, we reported on the adoption of Plan Melbourne which was subsequently incorporated into the Victoria Planning Provisions.  The Ministerial Advisory Committee that advised on Plan Melbourne has been reappointed to advise on the refresh.

The discussion paper reflects the Government's commitments and priorities and canvasses options for changes in planning policy and strategy.  It covers a range of key issues including housing and investment.  Of particular relevance to our clients is the discussion of improved environmental sustainability and planning for transport.

Environmental sustainability and climate change

The discussion paper emphasises sustainability as a key concept in the Plan Melbourne refresh.  Driving this part of the commentary are the CSIRO and Bureau of Meteorology[1] projections of increases in temperature and changing patterns of rainfall and more extreme weather events such as drought and bushfires, heatwaves, flooding and increased coastal inundation. 

The discussion paper suggests that a 'more sustainable polycentric city model' is preferable to contain urban growth within a permanent urban growth boundary.  It is also suggested that Plan Melbourne 2016 might support the 'greening' of the city, by structuring planning, local policies and overlays to promote more vegetation cover and cool hard surfaces.  Clarification of the limits to the 20-minute neighbourhood is also expected in Plan Melbourne 2016.

Once finalised, Plan Melbourne 2016 will sit alongside other key components of current and existing legislation, policy and plans in Victoria on the topic of climate change and environmental sustainability, many of which are under review:

·         Climate Change Act 2010, under review by an Independent Panel;

·         Climate Change Adaptation Plan, for which consultation is planned in early 2016;

·         Victorian Energy Efficiency Target Act 2007, recently amended;

·         Renewable Energy Action Plan, currently being developed;

·         Energy Efficiency and Productivity Strategy, to be released later this year;

·         revised Draft Victorian Floodplain Management Strategy, released in June 2015 and expected to be finalised by the end of 2015;

·         State Water Plan, to be released in 2016.

Transport Planning

Plan Melbourne 2016 will reflect the Government's transport priorities and commitments, including:

·         the Melbourne Metro Rail Project;

·         the removal of 50 metropolitan level crossings;

·         the Mernda Rail Extension; and

·         commitments to expand the bus network.

The discussion paper recognises that potential road initiatives such as connecting the Eastern Freeway and the Metropolitan Ring Road require further assessment.

Although Plan Melbourne 2014 committed to a second container port at Hastings, Plan Melbourne 2016 will leave open different options for the most appropriate site for a second container port, including locations at Bay West and Hastings.  Infrastructure Victoria will independently advise the government on this.

What are the next steps?

We will continue to update clients on this process.  Comments and submissions on the refresh of Plan Melbourne are invited until Friday 18 December 2015.  Please contact us if you would like assistance with preparing your submission.

Natasha Maugueret

Managing Principal Solicitor

8684 0402

natasha.maugueret@vgso.vic.gov.au

Eliza Bergin

Principal Solicitor

8684 0267

eliza.bergin@vgso.vic.gov.au

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[1] Bureau of Meteorology (2014) 'State of the Climate 2014'.

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