Expertise Archives:

Procedural fairness in enforcement matters: Defendant’s understanding

Defendant’s right to procedural fairness Unless stated otherwise in legislation, Defendants have a right to procedural fairness in administrative decision-making and Court proceedings. Procedural fairness is founded on the notion of a fair trial and it necessarily requires concepts such as access to information, public accountability and independent and impartial decision-makers. Procedural fairness is fundamental …

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Key takeaways on public land safety

In a recent ruling, the District Court of South Australia (the Court) dismissed a claim against the District Council of Lower Eyre Peninsula (Council), finding no liability for a teenager’s severe injuries after falling from a cliff on Council land. The case highlights important considerations for Councils regarding the duty of care owed to the …

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Securing lawful uses: navigating existing use rights in changing planning schemes

When planning schemes are amended or a new scheme is introduced, ‘existing use rights’ protect the existing lawful use of premises from the regulatory impacts of such changes.  This article provides a refresher on existing lawful use rights and discusses the recent Planning and Environment Court decision in Jephcott v Noosa Shire Council.[1] A Lawful, …

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Caretaker countdown: Navigating the ‘caretaker period’

Given the forthcoming Queensland state general election, it is important, not only for individuals within government, but also for businesses and stakeholders working with government or in government sectors, to understand the implications of the caretaker period. The caretaker period takes effect come election time to ensure the neutrality of public institutions and the smooth …

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Trunk vs Non-Trunk: Guidance from the Court on infrastructure conditions

The Planning and Environment Court recently decided the case of Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2024] QPEC 30 (Homeland). The judgment represents the latest instalment in a body of caselaw unpacking the infrastructure provisions of Planning Act 2016 (Qld) (Planning Act). This judgment of his Honour Judge Williamson KC provides some …

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The Aged Care Bill 2024 – navigating Australia’s proposed aged care reforms

Australia’s aged care sector has been the focus of reform for over a decade, spurred by increased scrutiny and the findings of the Royal Commission into Aged Care Quality and Safety. The need for change has been driven by the sector’s operational challenges and the identified systemic reform required to improve service quality and long-term …

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Limitation periods under the WHS Act: when does the clock start ticking?

Prosecutions for most offences against the Work Health and Safety Act 2011 (NSW) (WHS Act) are subject to a two year limitation period. While many have believed that prosecutions must be commenced within two years of an incident or the offence occurring, a recent decision has confirmed that view is not correct. In SafeWork NSW …

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QIRC decides local government ‘Senior Officer’ award definition – are you paying correctly? 

Why does this matter? ‘Senior Officers’ within the meaning of the Stream A Award (Award) can be excluded from Award and certified agreement coverage. That exclusion is relied upon by councils to facilitate flexible employment arrangements for senior staff. However, if an employee is incorrectly treated as a Senior Officer, there is a significant risk of an …

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Streamlined assessment pathway for social and affordable housing programs 

Who should read this? Developers and their advisors involved in community and social housing in Queensland. Things you need to know What you need to do Consider whether your social or affordable housing may be eligible for assessment under the infrastructure designation pathway, and whether that is more time and cost efficient than a traditional …

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Local councils are not immune from regulatory attention, and should maintain robust safety management systems to manage the work of third party contractors

Background Wingecarribee Shire Council (Council) has recently entered into an enforceable undertaking with SafeWork NSW following alleged breaches of health and safety duties, which left two workers injured. In 2018, Council engaged a contractor to drain vessels at a sewerage treatment plant. In October 2018, during the course of that work, a 15 tonne crane …

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New employment zones set to commence in December 2022

The NSW Government has commenced implementing the Employment Zone Framework following the range of reforms introduced in December 2021. These changes will replace existing industrial and business zones to bring new ‘employment zones’ and ‘supporting zones’ aiming to benefit businesses and productivity while minimising land-use conflict. The reform In December 2021, the five new employment …

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QBCC Governance Review Report released – key recommendations examined

Overview The QBCC Governance Review 2022 report (Report) authored by Jim Varghese AM was released on 29 June 2022, along with the Queensland Government’s response (Response). The Review contains 17 recommendations (and 77 actions) which are stated to address the gap between where the Queensland Building and Construction Commission (QBCC) is now and where it …

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The DBP Act’s statutory duty of care under the microscope

Overview The statutory duty of care introduced under the Design and Building Practitioners Act 2020 (NSW) (DBP Act) has been the subject of three recent Supreme Court of NSW decisions, which are among the first to consider its application. McCullough Robertson’s Insight articles dated 16 July 2020, 20 August 2020 and 28 June 2021 previously …

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QBCC head contractor licensing exemption confirmed as remaining in force

Overview The head contractor licensing exemption under section 8, Schedule 1A of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) has officially been confirmed as remaining in force, with the Building and Other Legislation Amendment Act 2022 (Qld) (the Amendment Act) receiving assent on 10 June 2022.  McCullough Robertson’s Insight article dated …

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Categorising land for rating purposes used for both permanent residential and temporary tourist accommodation

On 12 February 2021, the Queensland Court of Appeal in Island Resorts (Apartments) Pty Ltd v Gold Coast City Council [2021] QCA 19 dismissed an appeal involving a challenge to the primary judge’s findings concerning Gold Coast City Council’s (Council) decisions to: adopt the relevant differential rating categories of Category 2T and Category 3T and …

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Court of Appeal decision brings welcome relief to local councils

Who should read thisNew South Wales local government entities Things you need to knowThe New South Wales (NSW) Court of Appeal recently held that planning certificates (also known as section 10.7 certificates, and formerly known as section 149 certificates) are not required to disclose site-specific information, overturning a decision made by the New South Wales …

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