Simon Bailey
Clayton Utz
Consultant
Melbourne
Overview
Simon Bailey has worked within government, and for the last 17 years has provided external advice to departments and agencies, as well as to businesses that deal with government.
This has given him a deep understanding of the legal, institutional and policy framework the public sector operates in, and a strong interest in the legal principles underpinning public sector structures and processes. That's what's made him one of the country's most respected government lawyers. While he acts for a wide range of government and business organisations, he has a particular focus on the transport and health. His clients come to him for advice on a wide range of public law and regulatory matters, including administrative law and decision-making, development and drafting of legislation, statutory interpretation, licensing, regulation and compliance, public sector governance, procurement and contracting, and freedom of information privacy, health records and data protection.
Notable Work
- Functions and powers of statutory authorities: Simon advises departments and agencies on the interpretation of legislation, scope of statutory functions and powers, statutory duties and their breach, delegations, financial accountability and public sector governance (including under the Public Administration Act 2004). He also develops delegation frameworks, obligations registers, by-laws, compliance manuals and other governance documentation.
- Legislation and regulation: Simon has experience in all aspects of legislative development, including conducting legislative reviews, undertaking consultation, preparing issues papers and reform proposals, preparing drafting instructions and explanatory materials, drafting regulations and other subordinate instruments, advising on RIS and subordinate legislation requirements and assessing compliance with the Charter of Human Rights and Responsibilities Act 2006, National Competition Policy and other requirements that affect legislative development and interpretation.
- Simon provides extensive statutory interpretation advice to his clients, as well as training for decision-makers and others who administer or enforce legislation.
- Constitutional law: Simon advises on constitutional law issues, in particular as they affect State governments and intergovernmental bodies. He has advised on the extent of various Commonwealth legislative powers, inconsistency between Commonwealth and State legislation, section 92 and exclusive powers relating to customs and excise. In the State context, he has advised on constitutional powers and immunities of the Crown, Ministers and Crown agents, the constitutional validity of privative clauses and Parliamentary procedures. He has also advised on the development and implementation of intergovernmental agreements, including agreements about national reform processes in the transport, health and energy sectors.
- Public and Crown land: Simon advises agencies on public and Crown land issues, including under general Crown land legislation and under specific Acts relating to coastal land, waterways, roads, zoological parks and conservation reserves.
- Procurement and contracting: Simon advises purchasers and providers of services in relation to procurement and funding arrangements. He drafts, reviews and negotiates services and grant agreements, advises on compliance with government procurement guidelines and provides advice on the contracting out of public sector responsibilities and compliance obligations.
- Local government: Simon advises councils and their staff Local Government Act matters, including conduct rules and conflicts of interest. He has conducted investigations of alleged misconduct by councillors and council staff, and advised in relation to Ombudsman inquiries. He has also advised councils on FoI, privacy and Protected Disclosure Act requirements. He has also provided advice to councils on road management and emergency management.
- Document retention and management: Simon advises agencies on document retention and management, including compliance with Public Records Act and Archives Act obligations, data security requirements and dealing with subpoenas and notices to produce.
- Simon acts in judicial and administrative review proceedings and advises on review rights and procedures, decision-making, and procedural fairness. This includes reviewing or developing decision-making guidelines and training programs for decision-makers. He also advises agencies whose administrative action becomes the subject of Ombudsman investigations and the like, and advises on whistleblower disclosures under the Victorian and Commonwealth Protected Disclosure Acts.
- Administrative law: Simon acts in judicial and administrative review proceedings and advises on review rights and procedures, decision-making, and procedural fairness. This includes reviewing or developing decision-making guidelines and training programs for decision-makers. He also advises agencies whose administrative action becomes the subject of Ombudsman investigations and the like, and advises on whistleblower disclosures under the Victorian and Commonwealth Protected Disclosure Acts.
- Freedom of information: Simon works with departments, agencies and councils on their management of FoI. This includes advising decision-makers on specific requests, preparing draft decisions and template correspondence, devising and delivering training, and representing them in VCAT. It also has involved providing strategic information management advice (including in the context of a contentious infrastructure project). He has also advised third parties on ""reverse FoI"" applications.
- Simon provides a wide range of privacy advice to government and private sector organisations, including in relation to general privacy, health records, surveillance and telecommunications requirements. This includes devising practical compliance strategies, conducting privacy reviews and impact assessments, drafting privacy policies, drafting and reviewing privacy clauses in transaction documents and providing privacy training. He also advises on overseas data protection and the management of privacy risks in offshoring, cloud computing and other global activities.
- Functions and powers of statutory authorities: Simon advises departments and agencies on the interpretation of legislation, scope of statutory functions and powers, statutory duties and their breach, delegations, financial accountability and public sector governance (including under the Public Administration Act 2004). He also develops delegation frameworks, obligations registers, by-laws, compliance manuals and other governance documentation.
- Procurement and contracting: Simon advises purchasers and providers of services in relation to procurement and funding arrangements. He drafts, reviews and negotiates services and grant agreements, advises on compliance with government procurement guidelines and provides advice on the contracting out of public sector responsibilities and compliance obligations.
- Transport legislation: Simon has a deep knowledge of the legislation affecting the delivery of transport services and projects in Victoria. He has advised extensively on the Transport Integration Act, including in relation to functions and powers of transport bodies and the effect of the transport system objectives and decision-making principles. He has also advised extensively on road, rail and port management legislation and legislation that provides for the planning and delivery of major transport projects.
- As a member of the Committee for Melbourne’s Shaping Melbourne Taskforce and contributor to its report ""Melbourne Beyond 5 Million – Governance"", Simon has been part of the development of an institutional and legislative framework for a body to provide long-term planning for Victoria’s infrastructure needs
- Simon was also involved in the early development of ""chain of responsibility"" compliance principles, which underpin most recent Australian transport regulation, and this gives him gives him special insights into heavy vehicle, marine safety and rail safety compliance and enforcement. He also advises on infringements, licence and registration sanctions and other road safety enforcement measures.
- Road management and operations: Simon is recognised for his expertise in all aspects of road management law. He advises government on legal and regulatory issues relating to road access, charging and pricing. He advises extensively on highway and road management law under the Road Management Act, including in relation to highway authority liability, functions and powers of road authorities, regulation of works and advertising and use of road reserves for utility and other non-road purposes.
- Simon also regularly advises on the Road Safety Act and Regulations, including in relation to driver licensing, vehicle registration, drink and drug driving, demerit points, licensing and recognition of vehicle testers, traffic management and compliance and enforcement. He also advises on the Heavy Vehicle National Law.
- Simon advises regulators, and has also advised manufacturers and importers, on vehicle standards under Commonwealth and State law, on the management of vehicle inspections schemes, on the regulation of the motor trades, vehicle parts recycling and tow trucks.
- Rail and public transport: Simon has advised on rail safety under the Rail Safety National Law and on a range of road-rail interface issues, including the management of track access for grade separation works. He has also acted for rail infrastructure operators in relation to rail access applications. He has advised government on the development and implementation of bus safety legislation and advised on various transport related issues under the Disability Discrimination Act.
- Ports and marine: Simon advises port operators (including commercial and local port operators) on marine-side regulatory issues, including marine safety, navigation, pilotage, towage and non-commercial boating. This has included advising on government reviews, dealing with regulators, preparation of legislative obligations registers, preparation of Safety and Environmental Management Plans.
- Airports: Simon has advised airport operators on regulatory issues relating to land-side operations, including traffic and road management and security and surveillance monitoring.
- Document retention and management: Simon advises agencies on document retention and management, including compliance with Public Records Act and Archives Act obligations, data security requirements and dealing with subpoenas and notices to produce.
- Health sector governance: Simon has undertaken many projects that involve advising on legal issues relating to clinical and/or health provider governance.
- He undertook a review for the of legislation conferring qualified privilege on clinical quality assurance activities.
- He has drafted a clinical registry agreement for a university / registry operator and advised on managing information and data risks arising out of the operation of clinical registries.
- He has drafted by-laws for accreditation and scope of clinical practice of specialist medical practitioners in private hospital settings. He advises a specialist medical college on a range of governance, procurement and information management issues.
- He has also conducted (as a member of a Research Misconduct Panel) an investigation into allegations of research misconduct in the context of a clinical trial, and advised on research governance.
- He has advised various health providers on mandatory reporting, including under the Health Practitioner Regulation National Law, including developing notifiable conduct guidelines for a medical profession peak body.
- When the national policy framework for public cord blood banking was being reviewed, Simon was a member of a team that advised the National Blood Authority on legal and regulatory arrangements for the directed donation and special release of cord blood units.
- Health records: Simon has advised many health service providers (including a government department, public and private hospitals, primary health care providers, a community health service and several Medicare Locals), as well as businesses providing health technology products and services, on privacy and data management issues. These issues include management and transfer of records, procurement of electronic health records systems, management of data breaches and compliance obligations.
- Aged care and supported residential services: Simon has advised government departments on the Commonwealth legislative and regulatory requirements for aged care and on Victorian legislation for the regulation of the supported residential service sector.
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