Getting closer to safer families

The Royal Commission into Family Violence handed down its final report, State of Victoria, Royal Commission into Family Violence: Summary and recommendations on 29 March 2016 following 13 months of information and evidence gathering. 

Within the 2000 plus page publication, the report makes 227 recommendations.  The report is seven volumes and 41 chapters, with each chapter addressing a particular theme and set of issues.

Through this much anticipated report, the community hopes to gain a better understanding of the triggers and impact of violence so that Government and community support services can ensure more effective strategies for the prevention of and dealing with the devastating impact of family violence.

Key themes and recommendations

The Royal Commission finds that family violence must be a core area of responsibility for Government, instead of an issue that is addressed only by specialist services.  The Royal Commission calls for a commitment by Government to a whole-of-government approach to stop family violence, which will involve short, medium and long-term reform.  

The Royal Commission describes its 227 recommendations as seeking to '[improve] the foundations of the current system, [seize] opportunities to transform the way that we respond to family violence, and [build] the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence'. 

The Royal Commission's comprehensive strategy for improving the family violence system relies on its recommendations being implemented in a coordinated and integrated manner with the Commission recommending that 117 recommendations be implemented within 12 months; 66 recommendations within 2 years; 18 recommendations within 3 years; and 10 recommendations within 5 years.

The Royal Commission finds that a nuanced approach must be taken to addressing family violence in a multi-cultural and progressive society, such as Victoria.  Government must be mindful of the variety of experiences and backgrounds of people accessing the family violence system, and it advocates for a tailored and adaptable approach to the provision of services over a 'one-size-fits-all' approach if Victoria is to be a leader in the prevention of family violence.

The following themes and their associated recommendations are key components of the Commission's reform strategy:

1. Integration: A major recurring theme in the Report is the 'siloed' nature of the family violence system and support services provided by Government departments and agencies.  This is a significant limitation of the current system.  The Royal Commission highlights that best practice in the family violence system has evolved from people working together and recommends the Victorian Government strengthen innovation in the development and implementation of family violence policy and foster collaboration between different service systems.  On a practical level, the Royal Commission recommends the introduction of Support and Safety Hubs to reduce 'siloing' of systems and referral pathways.

2. Information sharing: Barriers to the sharing of information between government departments, Victoria Police and the community sector are an example of a core area requiring reform.  The Royal Commission recommends removing those barriers through the introduction of a specific family violence information-sharing regime under the Family Violence Protection Act 2008 (rather than under the Privacy and Data Protection Act 2014), and the establishment of a Central Information Point to facilitate information sharing.

3. Data collection: The Royal Commission identified deficiencies in the collection of family violence data and the consistency of data collected.  This impairs the Government's ability to evaluate the mechanisms funded and employed to address family violence.  It also hampers research practices into family violence in order to continue improving the system's response and prevention.  The Report recommends that data be collected and shared about the characteristics of victims and perpetrators and how the family violence system and services respond.

4. Innovation and technology: The Royal Commission highlights the limitation on family violence response caused by outdated information technology systems.  The Report calls for upgrading of information technology systems and innovatively using technology to improve system response.  For example, a trial is recommended for Victoria Police officers to wear body-worn cameras when attending family violence incidents to capture on-site evidence which will reduce the need for victims to repeat their traumatic experiences.

5. Training: The Royal Commission identified shortcomings in the capacity of first responders and universal services providers to identify and deal with people presenting with family violence issues.  The Report recommends family violence training for workers in the health and education systems so they can intervene early and provide appropriate support and referrals for victims, children, families and perpetrators.  The Royal Commission also highlights the need for increasing family violence specialisations within government and focussing on promoting a culture of tolerance and respect in the workplace.

6. Housing: The Royal Commission found that the current response to family violence assumes that victims will leave their home when family violence occurs, however, alternative accommodation and housing options are limited.  The Report recommends  that expanded access to affordable and safe housing and crisis accommodation, introducing more flexibility into support packages and pursuing 'safe at home' measures, where appropriate.

7. Perpetrator accountability: The Royal Commission found that attempts to make perpetrators accountable for their actions are 'grossly inadequate' which results in victims themselves being forced to manage ongoing risk of violence.  Therefore, the Report recommends holding perpetrators to account via behavioural change programs and shifting the onus away from victims to the family violence and child protection system.

8. Legal system: The Royal Commission is critical of the fragmentation between the state and federal family law courts and the complex referral pathways between services.  The Report calls for simplification of court processes for family law matters, focussing greater attention on offences committed in the family violence context and continued work towards fully specialised court proceedings.

9. Community attitudes: The Royal Commission highlights the importance of community attitudes to family violence, which are reflected in schools, faith-based organisations, workplaces and sporting clubs, as an important mechanism in changing attitudes towards family violence.  The Report advocates for family violence to be a core focus of government, non-government organisations and the community more generally.  Government is asked to implement workplace-based initiatives, such as family violence leave provisions, and investigate ways to use regulatory frameworks, such as those relating to occupational health and safety and equal opportunity, to support Victorian employers in implementing best-practice family violence policies.

10. Funding: The Royal Commission calls for changes to the way in which Government budgets and Departmental outcomes view family violence from a funding perspective.  Recommendations are put forward for reform of budget structures and performance measures to ensure that public funding for family violence measures can be properly oversighted and effectively measured.  The Royal Commission calls for the introduction of a Family Violence Agency to guide the implementation of the recommendations, to provide expert advice on research and with the capacity to conduct own-motion inquiries into the operation of the family violence system.

How was VGSO involved?

VGSO acted for the State, including helping to prepare witness statements for over 50 government witnesses, who gave evidence over 25 days of public hearings.  The public hearings culminated with a panel of six Departmental Secretaries and the Chief Commissioner of Victoria Police, and focussed on the future of the family violence system and funding models. 

VGSO also coordinated documents and data sought by the Commission from government agencies.  This involved responding to over 100 document requests from the Commission and the production of over 4000 documents to the Commission.

Terms of Reference

The Royal Commission was charged with making recommendations which:

• foster a violence-free society
• reduce and aim to eliminate family violence
• prevent the occurrence and escalation of family violence
• build respectful family relationships
• increase awareness of the extent and effects of family violence
• reinforce community rejection of the use of family violence
• ensure the safety of victims of family violence, through early intervention, effective responses and future protection
• support adults and children affected by family violence
• hold perpetrators accountable for their actions
• help perpetrators to change their behaviour.

How did it go about its work?

The Royal Commission:

•  received over 1000 written submissions
•  held five weeks of public hearings exploring a range of family violence related topics including, financial abuse, drugs and alcohol, housing, men's behavioural change, diversities of experiences (for example, Aboriginal and Torres Strait Islanders, LGBTI and CALD communities), child protection, role of the legal system, intervention orders and information sharing
• held five weeks of State-wide community consultations with individuals, stakeholder organisations and government
•  conducted roundtable discussions with stakeholder organisations, experts and government agency representatives.

Need further information?

For a copy of the Final Report, see http://www.rcfv.com.au/Report-Recommendations

For further information on the outcomes of the Royal Commission into Family Violence, please contact:

Joanne Kummrow
Special Counsel
joanne.kummrow@vgso.vic.gov.au
03 8684 0462

Sanishya Fernando
Solicitor
sanishya.fernando@vgso.vic.gov.au
03 9032 3044 

8 things you need to know now about changes to the Aboriginal Heritage Act 2006

The regime which regulates and protects Aboriginal heritage in Victoria is about to undergo a significant change. The Aboriginal Heritage Amendment Bill 2015, which was passed by parliament on 22 March 2016, introduces a suite of substantive and administrative changes to the Aboriginal Heritage Act 2006.

The general scheme of the Act remains in place. The Act will continue to provide a regime by which Aboriginal heritage may not be harmed, other than in accordance with cultural heritage management plans, particular types of agreements or permits granted under the Act (or other exception). The key bodies created or appointed under the Act, being the Victorian Aboriginal Heritage Council and Registered Aboriginal Parties (or RAPs), remain (albeit subject to some new rules and altered roles). The Victorian Aboriginal Heritage Register also remains, but is given some new work to do.

Within that same general scheme, the Amending Act makes significant changes to existing features and introduces some wholly new ones. We highlight just some of these changes, which may be of particular relevance to Victorian Government departments and agencies.
Who to apply to for a cultural heritage permit

The Bill provides that where there is a RAP for an area, applications for cultural heritage permits must be made to the RAP for the RAP to consider and determine. The Secretary to DPC remains responsible where there is no RAP for an area.

New agreements for managing public land

Public land managers will be able to use a new mechanism for managing Aboriginal cultural heritage, called Aboriginal cultural heritage land management agreements. The new agreements are intended to remove the need for public land managers to apply for a cultural heritage permit each time they wish to undertake low impact works which are likely to affect Aboriginal cultural heritage.
The agreements may be made between RAPs and public land managers. Public land managers include a committee of management, the Secretary of DELWP, Parks Victoria, VicRoads, VicTrack, a water authority or a local council. The agreements are only available where a cultural heritage management plan is not required.

When to execute a cultural heritage management plan

The Amending Act allows a person proposing an activity to prepare a preliminary Aboriginal heritage test to determine whether the activity requires a cultural heritage management plan. The test can be submitted to the Secretary, who must then certify the test or refuse to do so.

New rules for access to the Register

The Victorian Aboriginal Heritage Register is the repository of all known Aboriginal places and objects, as well as the repository of details of agreements made and other matters. Access to the Register is restricted to specified persons for specified purposes.
The Amending Act specifies that additional people may access the Register, including public servants responsible for planning permits and planning scheme amendments. At the same time, access to sensitive information will be more closely held, and it will be an offence to use information obtained from the Register for an unauthorised purpose. Finally, Traditional Owners, through RAPs and the Council, will be able to nominate particular information held on the Register to be classed as sensitive and subject to extra protection.

New regime for protecting cultural knowledge 

The Amending Act creates a new category of heritage called 'Aboriginal intangible heritage'. 'Aboriginal intangible heritage' includes any knowledge of Aboriginal tradition, other than cultural heritage or knowledge which is already widely known to the public. Aboriginal intangible heritage needs to be recorded on the Register to be protected.
In simplified terms, it will be an offence for Aboriginal intangible heritage to be used for commercial purposes without the agreement of the appropriate registered Aboriginal party. It will also be an offence to fail to adhere to any intangible heritage agreement once made (but intangible heritage will generally be excluded from the other offence provisions).

New Enforcement Powers

The Amending Act empowers authorised officers, previously known as inspectors, and Aboriginal heritage officers, who are employees of RAPs appointed by the Minister, to issue a 24-hour stop order to protect Aboriginal heritage from acts that harm it, or are likely to. It is an indictable offence to not comply with the stop order. Authorised officers will also be empowered to issue improvement orders, which require the person to remedy a contravention of the Act.

Altered offences

The Amending Act clarifies and alters the existing offences. It will be an offence to act, or omit to act, in a way that knowingly, recklessly or negligently harms Aboriginal heritage. The Bill also introduces a strict liability offence of harming Aboriginal heritage (which carries a lesser penalty than the offences with a mental element).
It also provides that officers of bodies corporate may be personally liable for acts by the body in prescribed circumstances.  With some exceptions, the new provisions may apply to officers of statutory bodies corporate, so it is important to be aware of these changes.

Aboriginal Ancestral Remains

The Amending Act establishes a new system for managing Aboriginal Ancestral Remains (Aboriginal skeletal material). First, it requires all institutions to report on any remains in their collections to the Victorian Aboriginal Heritage Council within two years of commencement of the Act. This requirement applies to all museums, hospitals and other state agencies and institutions.

Second, the Amending Act requires all remains to be returned to the Council for its management. If the Council, or relevant Traditional Owner, is not able to care for the remains, they are to be deposited at Museum Victoria for safe keeping.

For further information please contact:

Mark Egan
Principal Solicitor
8644 0489

Mary Scalzo
Managing Principal Solicitor
9947 1419

Renewed commitment to energy efficiency targets

What's new?

Victoria has renewed its commitment to energy efficiency targets with the introduction of updated targets for the next five years.  As a large energy consumer, government plays an important role in achieving these abatement targets - 5.4 million tonnes of carbon dioxide equivalent in 2016, steadily increasing each year to 6.5 million tonnes in 2020.  The Energy Saver Incentive, a scheme created by the Victorian Energy Efficiency Target Act (VEET Act) to facilitate the reduction of greenhouse gas emissions, also provides an opportunity for government to save money when undertaking certain energy efficiency activities.

How does the VEET scheme work, in a nutshell? 

1. The VEET Act:

1. Sets abatement targets; 
2. Imposes liabilities on energy retailers ('relevant entities'); and
3. Creates a scheme for the generation and sale of certificates as evidence of abatement.

2. An energy consumer (such as government) engages an accredited business ('accredited person') to do a 'prescribed activity'.  Prescribed activities are energy saving activities specified in the VEET Regulations,  including:

• incandescent lighting replacement;
• commercial lighting upgrades;
• installation of energy efficient heating or cooling; and
• purchase of energy efficient appliances.

3. For every 1 tonne of greenhouse gas abated as a result of a prescribed activity, the accredited business can generate 1 certificate representing this abatement.

  

4. The accredited business can then sell the certificates to energy retailers to enable the retailer to meet their VEET liability.

5. In anticipation of this sale, the accredited business may provide the energy consumer with a discount because the business can sell the certificates generated as a result of the energy saving activity undertaken on behalf of the consumer.  The discount is provided at the time the accredited business is engaged. 

How can the VEET scheme benefit government? 

The main benefit to government, as a large energy consumer, lies in the savings able to be made by engaging accredited businesses who offer discounts for energy saving activities, such as the installation of energy efficient lighting.    

Here are three practical tips that may help you take advantage of the scheme: 

• Check whether an activity is prescribed under the Regulations before developing a scope of work and engaging a contractor.
• Check whether a contractor is an accredited person before engaging them to undertake a prescribed activity. 
• Make accreditation under the VEET scheme a condition of any procurement process involving a prescribed activity. 

For more information visit: 

• Essential Services Commission's website: http://www.esc.vic.gov.au/Home; or
• Victorian Government's Energy Saver Incentive website: http://www.energyandresources.vic.gov.au/energy/about/legislation-and-regulation/energy-saver-incentive.

If you would like further advice in this area, please contact:

Eliza Bergin

Principal Solicitor

8684 0267

eliza.bergin@vgso.vic.gov.au 

Employee in a 'pickle' following employer's ‘commendable’ approach to dismissal

Effecting a fair dismissal is not impossible – a recent decision of the Fair Work Commission illustrates the importance of the ongoing management of unsatisfactory performance and a fair approach.

The facts Rooney v Pickles Auctions [2016] FWC 858 (9 February 2016)

Pickles Auctions dismissed an employee one afternoon after he arrived at work over one hour late that morning because he had slept through his alarm.   

The employee had a history of habitual lateness without prior notification to his Supervisor and had received at least 6 formal warnings regarding his performance and conduct (including lateness).

There was a valid reason for dismissal

The FWC held that it should have come as no surprise to the employee that this occasion of late attendance might represent 'the straw that broke the camel's back'.

The employer had taken a commendable procedural approach 

The employer’s ‘proper and just… and commendable’ approach included:

• providing the employee with an opportunity to respond to the particular circumstances of lateness on each occasion;
• convening a meeting with the employee to advise of the seriousness with which it was treating the matter and to inform the employee that his employment was in jeopardy;
• providing the employee ample opportunity to offer an explanation for his conduct or make out a defence; 
• adjourning the meeting to take advice, consult with relevant personnel management staff and carefully consider the circumstances before arriving at the decision to terminate the employee's employment; and 
• convening a further meeting with the employee to inform him that his employment was terminated and providing both verbal and written notice of the reason for dismissal.

Not every dismissal (perhaps particularly in the public sector) will be as straightforward as this one but, no matter how complex the situation, the focus should be on proactively managing each instance of unsatisfactory performance by notifying the employee and giving them an opportunity to respond on each occasion.

If you would like further advice in this area, please contact:

Jacqueline Parker

Assistant Victorian Government Solicitor

jacqueline.parker@vgso.vic.gov.au
9032 3011

Alice Felman
Principal Solicitor
alice.felman@vgso.vic.gov.au
9032 3015

Freedom of Information in Utopia

Many public servants would have tuned in to an episode of ABC's satirical comedy Utopia, in which the fictional Nation Building Authority muddles its way through an FOI request. FOI is an important part of government accountability and transparency.  The episode reminds us that responding to FOI requests can be complex.  This handy guide provides a quick reminder of the key steps to follow when processing an FOI request.  While FOI requests can be made to both agencies and Ministers, this post primarily deals with the former.

FOI in Victoria is regulated by the Freedom of Information Act 1982 (FOI Act), the Freedom of Information Regulations 2009 and the Freedom of Information (Access Charges) Regulations 2014. 

Practical assistance is also provided by the Attorney-General Guidelines on the Responsibilities and Obligations of Principal Officers and Agencies (December 2009).  Regard should also be had to the Attorney-General's Freedom of Information Professional Standards (2014).

Steps in processing an FOI request

1.      What are the criteria for a valid request?

The first step is to determine whether a request is valid under s 17 of the FOI Act.  A request will be valid if it is:

•         in writing;
•          provides information to enable identification of the documents; and
•          encloses the application fee, which may be waived or reduced if it would cause hardship to the applicant.

The application fee is 2 fee units, which currently totals $27.20. 

If a request is not valid, the agency has a duty to assist the applicant to make a valid request or direct a request to the appropriate agency (s 17(3)).

2.      How quickly must a request be processed?

Once an agency receives a valid FOI request, all reasonable steps must be taken to notify the applicant of the decision as soon as possible and no later than 45 calendar (not business) days after the request was received (s 21).  

If you work for an agency and receive an FOI request, but you are not an FOI officer, you should forward the request to the appropriate person in your agency.  You can find out who the FOI officer is by looking in your agency's 'Part II' statement.  This is a reference to Part II of the FOI Act, which requires that certain information is published and available to the public.  As an example, the Part II statement of the Department of Justice and Regulation is available online here. 

3.      What if a request is voluminous?

An agency may refuse access to documents if the request is so voluminous that processing it would divert the agency's resources substantially and unreasonably from its other operations (s 25A(1)(a)).  Before refusing a request for this reason, the agency must contact the applicant and offer to assist him or her to make the request in a form that would remove this ground for refusal (s 25A(6)).

4.      How is a request processed?

Once a request is assessed as valid, a thorough and diligent search must be conducted to locate all documents within the terms of the request.  This search can be conducted by the relevant business area of an agency under the supervision of the FOI officer.

'Document' includes a document in writing, as well as maps, plans, graphs, drawings, photographs, sound tracks, film, and any words, figures, letters or symbols which have meaning (s 5).

If the search does not return any relevant documents, the agency may determine that they do not possess any documents that fall within the terms of the request.

5.      What exemptions may apply to a document?

An applicant is not entitled to a document (or a part of a document) if an exemption applies to that document (or that part of a document).  Each document must be reviewed to determine if all or any part of a document may be exempt.  If an exemption applies, consideration must be given to whether the document can be released with exempt matter redacted (s 25).

Exemptions include:

·         Cabinet documents (s 28)

·         documents containing matter communicated by the Commonwealth or any State or Territory (s 29)

·         documents affecting national security, defence or international relations (s 29A)

·         documents of Court Services Victoria (s 29B)

·         internal working documents (s 30)

·         law enforcement documents (s 31)

·         documents affecting legal professional privilege (s 32)

·         documents affecting personal privacy (s 33)

·         commercial information of a third party or where the agency is engaged in trade and commerce (s 34)

·         documents containing material obtained in confidence (s 35)

·         disclosure contrary to the public interest (s 36)

·         certain documents arising out of companies and securities legislation (s 37)

·         documents to which secrecy provisions apply (s 38)

·         Council documents (s 38A)

Many of the above exemptions contain a public interest test, which is designed to balance competing factors in favour of either providing or preventing access to documents.

6.      What decisions may an agency make in respect of a document?

After any applicable exemptions have been identified, a decision must made as to whether to:

·         exempt a document in full;

·         release a document in part (with exempt material deleted); or

·         release a document in full.

Even if a document is to be released in part or in full, an agency may defer access if the document has been prepared for presentation to Parliament or a Council or for release to the press (s 24).

Notice of the decision must be provided in writing to an applicant (s 27) and must include:

·         the findings on any material questions of fact (eg, if an exemption applies), the material on which those findings was based, and the reason for the decision;

·         the name and designation of the person making the decision;

·         whether exempt information has been deleted from a document; and

·         information about the right to seek a review of the decision, including where to seek review and the time limit for seeking review.

7.      How can an FOI decision be reviewed?

After an agency has provided notice of a decision under the FOI Act to an applicant, he or she has 28 days to apply to the Freedom of Information Commissioner for review of the that decision (ss 49A, 49B).  However, the following decisions are not reviewable by the FOI Commissioner:

·         a decision made by the Minister or the principal officer of any agency (s 49A(3));

·         a decision refusing access to a document on the basis of the exemption under s 28, namely Cabinet documents (s 49A(4)); and

·         a decision refusing access to a document on the basis of the exemption under s 29A, namely documents affecting national security, defence or international relations (s 49A(4)).

A decision of the Commissioner is in turn reviewable by the Victorian Civil and Administrative Tribunal (ss 50(1)(b) and (c)).  An application to the VCAT must be made within 60 days of notice of the decision (s 52).

Applicants may also apply to VCAT for review of the following decisions:

·         a decision of the principal officer of an agency or a Minister refusing to grant access to a document in accordance with a request (s 50(1)(a));

·         a decision of an agency refusing to grant access to a document in accordance with a request, if the FOI Commissioner has made a determination under s 49G(1) not to accept an application for review or has dismissed a review (s 50(1)(d)).

·         a decision of an agency refusing to grant access to a document that is claimed to be exempt under s 28 (Cabinet documents) or s 29A (documents affecting national security, defence or international relations) (s 50(1)(e)).

·         a decision under s 24 by the principal officer of an agency or a Minister deferring the provision of access to a document (s 50(1)(f)).

·         a decision as to the amount of a charge that is required to be paid before access to a document is granted, if the FOI Commissioner has certified that the matter is one of the sufficient importance for VCAT to consider (s 50(1)(g)).

A decision of VCAT is also reviewable by the Supreme Court on an error of law.

Proposed Office of the Public Access Counsellor

The Government has also indicated its intention to create a new Office of the Public Access Counsellor, which will replace the Office of the FOI Commissioner.  The Special Minister of State has informed the Legislative Council that the Office will be established in 2016 and work has commenced to prepare the required legislation.  

The Office of the Public Access Counsellor will:

•  have the ability to review ministerial and departmental decisions to not release documents under the Cabinet-in-Confidence exemption;
• set FOI standards; and
• have a broader mandate to help Victorians understand how to access government information.

VGSO's FOI experts can help Victorian government bodies to respond to FOI requests.  We can also assist with reviews of an FOI decision before the FOI Commissioner, VCAT or the Supreme Court.

Janine Hebiton

Managing Principal Solicitor

8684 0450

janine.hebiton@vgso.vic.gov.au

Michele Rowland

Principal Solicitor

8684 0413

michele.rowland@vgso.vic.gov.au

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'.