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Victorian Government Bulletin

Victorian Government Insights April 2015

The latest State Government (VIC) news, cases, legislation and insights from our Government team.

In this edition:

Recent Publications:

Exposure Draft of the Wrongs Amendment Bill 2014

by Sharon Van Dyk

Compulsory acquisition of easements

by Suzanne Manson

Lessons learnt from the Quaker’s Hill Nursing Home fire

by Victor Harcourt and Amy Winner

Legal Professional Privilege and the Coronial setting

by Victor Harcourt and Amy Winner

Upcoming Events:

Russell Kennedy Seminar: Local Government Property

presented by Russell Kennedy's expert local government lawyers

AIAL presents: Standing and the High Court - Money Talks, Public Interest Takes a Walk

presented by Dr Matthew Groves, Professor, Faculty of Law, Monash University

In the media

Experts Advise On Preventing Child Sexual Exploitation

Minister for Families and Children, Jenny Mikakos, is working to improve the protection of children and teenagers from exploitation by sexual predators (27 March 2015)

Read the full article here.

Seven-year sentence for insider trading unlikely to deter others

The seven-year sentence for insider trading handed down by Justice Hollingworth of the Victorian Supreme Court is one of the harshest imposed on a white-collar criminal in living memory.  Justice Hollingworth said she wanted to deter other young people in the corporate world from engaging in criminal conduct (23 March 2015)

Read the full article here.

Treasury media release here. (17 March 2015)

ASIC media release here. (17 March 2015)

New Smoking Bans To Start At Hospitals And Schools

New smoking bans will commence in three weeks’ time, brought forward by the Andrews Labor Government to protect more Victorians from secondhand smoke. The bans, established under the Tobacco Amendment Act 2014, were due to come into effect on 30 June 2015 but will instead commence on Monday 13 April (23 March 2015)

Read the full article here.

Moratorium on Restricted Dog Breed Euthanasia

Legislation introduced into the Parliament this week will impose a moratorium on the destruction of restricted breed dogs, while a Parliamentary Inquiry into the effectiveness of current legislative arrangements is underway (18 March 2015)

Read the full article here.

LIV: Communication Between Clients and Lawyers must be Protected Under Data Retention Bill

Communications between clients and lawyers must be protected under the imminent data retention regime, according to the Law Institute of Victoria. Any mass retention of communications data between lawyers and their clients could threaten the necessary trust between lawyers and their clients (17 March 2015)

Read the full article here.

IBAC examinations to be held into alleged serious corruption in education sector

Public examinations into alleged serious corruption at the Department of Education and Training (DET) will be held by the state’s anti-corruption commission from next month (17 March 2015)

Read the full article here.

Cattle Banned From the Alpine National Park

The Andrews Labor Government will introduce legislation into the Victorian Parliament banning grazing in the Alpine National Park, as well as in the River Red Gum national park (17 March 2015)

Read the full article here.

Mother progresses UN complaint in push for increased oversight for police related deaths

The mother of fifteen year old Melbourne boy who was shot dead by police in 2008, has progressed her individual communication to the United Nation's Human Rights Committee aimed at highlighting Australia's failure to ensure police related deaths are properly investigated by an independent body (12 March 2015)

Read the full article here.

Review To Strengthen Victoria's Charter of Human Rights

The Andrews Labor Government will review Victoria’s Charter of Human Rights and Responsibilities to ensure it is robust and effective. The Attorney-General has appointed Michael Brett Young - CEO of the Law Institute of Victoria (LIV) until 2014 and previously managing partner at Maurice Blackburn - to lead the review (02 March 2015)

Read the full article here.

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Victoria County Court: New eLodgement System to Commence April 2015

The County Court has issued a reminder that from 13 April 2015 legal practitioners will be required to electronically lodge a number of forms and documents for criminal matters online upon the commencement of the new eLodgement system. Chief Judge Michael Rozenes stated that "the much anticipated system will help drive efficiencies both in and outside the Court"

Read the media release here.

Easter Subpoena Dates

The County Court has released a schedule (undated) of dates "to assist solicitors with issuing subpoenas during the Easter period"

Read the media release here.

See the schedule here.

Victoria VCAT: New Practice Note - Information from Decision Makers

The Victorian Civil and Administrative Tribunal (VCAT) has released Practice Note - PNPE2 Information from Decision Makers (16 March 2015), which outlines information to be provided by a responsible authority, specified body or other decision making body on receipt of notice that an application under a 'planning enactment' or other specified enactment has been commenced in the Planning and Environment List.

Read more here.

VIC Government Gazette S61 - Domestic Animals Act 1994 – 26/03/2015

Notice of Proposal to Amend Code Of Practice for the Operation of Breeding and Rearing Businesses 2014

VIC Government Gazette G12 - Magistrates’ Court Act 1989 – 26/03/2015

Notice Specifying Magistrate Assigned To The Family Violence Court Division

Review of the Adoption Act 1984 No. 10150 (Victoria)

The review will consider the legislative amendments required to permit adoption of children by same-sex couples under Victorian law. The terms of reference for the review include: the Victorian Law Reform Commission Final Report on Assisted Reproductive Technology and Adoption (2007) Submissions to the review should be sent to the DPC here by 23 March 2015 

Learn more here.

New Court Appointments

Peter White to the Coroners Court, following his diligent work as a Coroner in Victoria over the last eight years (17 March 2015)

Read the media release here.

Peter Riordan QC to the Trial Division of the Supreme Court. Mr Riordan brings 39 years of legal experience to the bench, specialising in commercial litigation including corporations, property law, insurance and professional liability (10 March 2015)

Read the media release here.

Melinda Richards SC as Crown Counsel. Crown Counsel provides high-level advice to the Attorney-General and conducts reviews and investigations on a range of legal and policy-related matters (03 March 2015)

Read the media release here.

Victorian Solicitor-General Stephen McLeish SC to the Court of Appeal (03 March 2015)

Read the media release here.

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Published - articles, papers, reports

VAGO: Managing Regulator Performance in the Health Portfolio (2014–15:22)

The focus of this audit was on regulation in the health portfolio, examining how effectively and efficiently a sample of small but important health regulators, DHHS and DTF are working to improve regulatory performance (18 March 2015)

View the portfolio here.

VAGO: Education Transitions (2014–15:23)

This audit examined how transitions into and between early childhood education and careand school, and between schools are managed. It examined DET and a sample of early childhood education and care providers and schools (18 March 2015)

Read the report here.

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Metricon Homes Pty Ltd v Hooper [2015] VSC 110

JUDICIAL REVIEW – Section 148(1) Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) – Questions of law – Factual findings and inferences not open to Tribunal – Factual findings unreasonable – Wednesbury unreasonableness – Tribunal’s obligations to act fairly (s 97 VCAT Act), to afford natural justice (s 98(1) VCAT Act), to provide a reasonable opportunity to call or give evidence (s 102(1)(a) and (b) VCAT Act) – Incorrect application of the Building Code of Australia 2006 (BCA) – Scheme of the BCA – Options to satisfy BCA Performance Requirements – Provisions of AS 2870 – Tribunal’s errors in determining damages – Notice of contention – Tribunal’s errors in construing the building contract.

Read about the case here.

Mulholland v Funnell (No. 2) [2015] VSC 108

PRACTICE AND PROCEDURE – Summary Judgment and adjournment applications – r 23.03 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – s 62 of the Civil Procedure Act 2010 (Vic) - Principles – Inadequate pleadings and evidence – Weight to be given to previous findings by a tribunal of fact adverse to the claim – Lack of proper contradictor and no practical purpose for declarations sought - No real prospect of success – Adjournment application refused and summary judgment application granted.

Read about the case here.

Department of Health & Human Services v Herald and Weekly Times Pty Ltd (Review and Regulation) [2015] VCAT 291

Freedom of Information Act 1982 – ss 30(1), 33, 35(1)(b) – whether document concerning the number of people removed from the Victorian hospital waiting lists because they had died exempt from release

Read about the case here.

Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269

Equal Opportunity Act 2010 (Vic) whether employer discriminated (either directly or indirectly) with respect to employee due to pregnancy involving morning sickness - whether morning sickness is a “disability” as defined under the EO Act - whether employer failed to reasonably accommodate employee suffering morning sickness – whether reasonable adjustments were required.

Read about the case here.

T C v U D [2015] VSC 92

ADMINISTRATIVE LAW  – Mental Health – Revocation of Community Treatment Order made under Mental Health Act 2014 (Vic) – Whether revocation order valid – Validity of subsequent Inpatient Assessment Order and Inpatient Temporary Treatment Order – Existence of changed circumstances – Improper purpose – Irrelevant consideration – Unreasonableness – Incompatibility with human rights – Mental Health Act 2014 (Vic) ss 11(1)(a), 11(2), 30, 46, 61; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21.

Read about the case here.

Supple & Anor v Building Appeals Board & Ors [2015] VSC 83

ADMINISTRATIVE LAW — Determination of panel of Building Appeals Board — Panel member becoming unavailable before all matters before it decided — Whether matters so far decided must be reconsidered by new panel — Whether second defendant an adjoining owner — Whether Board had jurisdiction — Whether reasons adequate — Whether failed to take into account a relevant consideration.

Read about the case here.

Knight v Minister for Corrections [2015] VSC 56

PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order – Whether leave to commence proceeding should be granted – Test to be applied – Supreme Court Act 1986, s 21 – Vexatious Proceedings Act 2014, ss 54–56, 63, 91

ADMINISTRATIVE LAW – Application for a declaration that the decision made by Corrections Victoria regarding the general prohibition on smoking in Victorian prisons is ultra vires – Whether the decision was made for an improper purpose – Scope of the power under ss 20(1), 21(1) and 112 of the Corrections Act 1986 – Corrections Amendment (Smoke-Free Prisons) Act 2014

Read about the case here.

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No. 3: Back to Work Act 2015

Assent: 25/03/2015 SG (No. 59) 25/3/2015 p. 1 Commencement: Ss 1-58 on 01/07/2015: s. 2

Not yet in operation: Ss 1-58: on 01/07/2015: s. 2

The object of this Bill is to establish a Back to Work Scheme for the purpose of providing relief to employers in respect of the costs associated with hiring certain unemployed or retrenched workers and to make consequential amendments to the Taxation Administration Act 1997

View the Bill here.

No. 5: Interpretation of Legislation Amendment Act 2015

Assent: 25/03/2015 SG (No. 59) 25/3/2015 p. 1 Commencement: Ss 1-11 on 01/07/2015: s. 2

Not yet in operation: Ss 1-11: on 01/07/2015: s. 2

The Bill tightens up interpretation of legislation around certain definitions and delegations and gives the chief parliamentary counsel certain new formatting powers

View the Bill here.

No. 6: Summary Offences Amendment (Move-on Laws) Act 2015

Assent: 25/03/2015 SG (No. 59) 25/3/2015 p. 1 Commencement: Ss 1-9 on 26/03/2015: s. 2

Specifically, the Bill would provide that police officers and protective services officers will not have a specific power to give a move-on direction to a person picketing a place of employment, demonstrating or protesting about a particular issue, or publicising his or her view about a particular issue

View the Bill here.

Wrongs Amendment (Asbestos Related Claims) Act 2015

Assented 10 March 2015; Commencement: 11/3/2015 (Whole)

This Act amends Part VBA of the Wrongs Act 1958 in relation to claims for the recovery of damages for non- economic loss in respect of asbestos-related conditions

View the Bill here.

Statutory Rules

No. 13: Infringements (General) Amendment Regulations 2015

Date of Making: 10/03/2015; Commencement: 11/03/2015: reg. 3; Not yet in operation:

N/A; Sunset Date: 10/03/2025

The objective of these Regulations is to amend the Infringements (General) Regulations 2006 to (a) prescribe certain infringement offences under certain Acts as lodgeable infringement offences for the purpose of enforcement under the Infringements Act 2006

No. 10: Supreme Court (Judicial Registrars Amendment) Rules 2015

Commencement: 01/03/2015: rule 3

Not yet in operation: N/A Sunset Date: 26/02/2025 

No. 11: Supreme Court (Chapter I Miscellaneous Amendments) Rules 2015

Commencement: 01/03/2015: rule 3

Not yet in operation: N/A Sunset Date: 26/02/2025

This substitute new r. 58.35(b)(iii) and (iv) to provide that matters that must be set out or stated in a notice of appeal under Part 7 (Appeals under Part 7 of the Coroner's Act 2008 No. 77 (Vic)) include, where applicable, the question of law upon which the appeal is brought and concisely the grounds of appeal, as well as the grounds relied on to satisfy the Court that it is necessary or desirable in the interests of
justice that the appeal be allowed, where s. 87A of the Coroner's Act 2008 applies;

VIC Government Gazette G9 - Subordinate Legislation Act 1994 - 05 March 2015

Crime Statistics (Fees and Charges) Regulations 2015

Bills Progress

Jury Directions Bill 2015

Introduction and first reading 17 March 2015, the Bill continues the effect of the Jury Directions Act 2013 No. 12 (Vic) (the 2013 Act) with some refinements, and addresses a number of additional problematic jury directions.  The Bill also amends the Evidence Act 2008 No. 47 (Vic) (the principal Act) and the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 No. 74 (Vic), as well as deleting Part 5 (Amendment of Jury Directions Act 2013) and making amendments that affect the Crimes Act 1958 No. 6231 (Vic).  

View the Bill here.

Limitation of Actions Amendment (Child Abuse) Bill

The purpose of the amending Bill would be to remove limitation periods that apply to actions in respect of causes of action that relate to death or personal injury resulting from child abuse, to implement recommendation 26.3 of the Family and Community Development Committee's November 2013 report Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations Volume 1 and Volume 2 (both dated November 2013)-  19/03/2015 – First reading passed

View the Bill here.

Victorian legislation can be viewed online at:

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"The material contained in this publication is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances”