09 November 2021
23 min read
#Government, #Construction, Infrastructure & Projects
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We have seen a growing number of complaints being made against the State concerning infrastructure projects across Queensland. With planning underway for a significant number of major infrastructure projects as Brisbane prepares for the 2032 Olympics and Paralympics Games, we expect to continue to see an increase in complaints arising with respect to these projects.
It is well established that the State (and local governments) have the power to compulsorily acquire land for public purposes under the State Development and Public Works Organisation Act 1971 (Qld) and the Acquisition of Land Act 1967 (Qld). In turn, the owners and occupiers of affected land are given certain rights under the legislation, including a right to object and to compensation. This compensation will usually take into account any decrease in the market value of the property and other disturbance costs.
The right to compensation is an acknowledgement that the resumption has interfered with a person’s property rights. However, it is not uncommon for neighbouring properties to also be affected by public works through noise, dust, vibration, business disruptions and more. Despite this, there is no streamlined compensation process available to these landowners and no clear guidelines on how the State or local government should handle these complaints.
Property owners and occupiers who are adversely affected by public works may seek compensation for private nuisance. A private nuisance may arise where there is a substantial and unreasonable interference with a person’s use or enjoyment of their land. Interference can include, for example, the spread of dust, offensive smells, bright lights or a lack of light, noise, vibration and pollution.
A successful claim may entitle an owner or occupier to damages for diminution in value of the affected land, or damages for causing the landowner or occupier inconvenience, annoyance or discomfort. However, the disaffected party needs to go through a lengthy and costly litigation process to reach this point.
Despite the above, the State and local governments need to undertake infrastructure projects for the public good and growth of Queensland. To manage this risk, when planning infrastructure works, the State or local government may
1. carefully review the relevant legislation authorising the public works. It is a defence to private nuisance claims if an Act of Parliament expressly authorised the nuisance. However, it is important to keep in mind that this defence will only apply in circumstances where the only way, rather than the convenient way, to perform the act would give rise to nuisance
2. take steps to ensure that all reasonable precautions are taken to minimise interference. This is a factor that courts take into consideration when determining whether there has been an unreasonable interference. It may be helpful to consult with neighbouring property owners and occupiers and keep them informed and engaged with the project. For example:
3. enter into agreements with owners or occupiers under which the State or local government may agree to certain obligations in relation to how the infrastructure project is carried out in exchange for a release from an owner or occupier. This may be particularly beneficial where it is anticipated that the project will cause significant disturbance to a particular owner or occupier and wants certainty regarding any potential liabilities for nuisance.
Authors: Ron Eames, Grace Wimberley & Charlotte Chang
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Appointment to the Federal Court of Australia
29 October 2021 - Mr Scott Goodman SC has been appointed as a judge of the Federal Court of Australia and will commence on 11 November 2021.
Review of PBR Act and IPEA Act
The statutory review will consider how the current legislative framework provides appropriate levels of accountability and transparency to the use of taxpayers’ money. The Review will report by 31 December 2021. More information on the Review including the terms of reference can be found here.
Department of Infrastructure, Transport, Regional Development and Communications: Draft Online Safety (Basic Online Safety Expectations) Determination 2021 consultation
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Law Council Submissions
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Phase 3 of Australia’s Digital Identity legislation
Queensland
Supreme Court Practice Notes
Supreme Court Summer Arrangements 2021 - 2022 05 Nov 2021
Supreme Court practice direction 10 of 2020 - Amended 03 Nov 2021
- Informal Wills/COVID-19
New Criminal Case Lookup service for all Queensland courts 27 Oct 2021
Online Application for a court event (Magistrates Courts) 27 Oct 2021
Form DV04 – Application to vary a domestic violence order – (version 6) approved on 21/9/2021 26 Oct 2021
Consultations
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Seven Network v Cricket Australia (No 3) [2021] FCA 1303
PRACTICE AND PROCEDURE – whether non-party is entitled to inspect documents pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) – whether confidentiality orders required before granting access to restricted document – confidentiality orders made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth)
Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
DEFAMATION – where numerous defamatory imputations alleged – where publication complained of was a news story broadcast by Channel Seven on “Seven News” in Sydney – consideration of whether the alleged imputations were conveyed by the publications – whether the imputations carried a defamatory meaning – where defence of contextual truth pleaded pursuant to s 26 of the Defamation Act 2005 (NSW) – where defence of fair summary of a public document pleaded pursuant to s 28 of the Defamation Act – where defence of honest opinion pleaded pursuant to s 31 of the Defamation Act
Held: Application granted – imputations carried a defamatory meaning – defamatory imputations conveyed by the publications – no pleaded defence made out
DAMAGES – where first applicant claims for damage to reputation and hurt feelings – where first applicant claims aggravated damages – where second applicant claims for damages for vindication of and harm to business reputation – where second applicant a not-for-profit charity – where second applicant has not shown any economic loss or probability of economic loss Defamation Act 2005 (NSW) ss 4, 9, 26, 28, 31, 37; Corporations Act 2001 (Cth), ss 9, 53, Pt 5.9; Federal Court of Australia Act 1976 (Cth), s 37M
1. Judgment is entered for the first applicant, Mrs Nassif, in the amount of $100,000.
2. Judgment is entered for the second applicant, Wiping Tears Charitable Organisation, in the amount of $500.
YF' and Services Australia (Freedom of information) [2021] AICmr 59
Freedom of Information — whether material in the documents is irrelevant to the request — whether documents subject to legal professional privilege — whether documents contain deliberative matter prepared for a deliberative purpose — whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — whether disclosure is contrary to the public interest — (CTH) Freedom of Information Act 1982 ss 11A, 22, 42, 47C, 47E(d) and 55D
YE' and Department of Defence (Freedom of information) [2021] AICmr 58
Freedom of Information — whether material in documents irrelevant to request — whether reasonable steps taken to find documents — whether disclosure would cause damage to the security of the Commonwealth- Whether documents subject to legal professional privilege ‑— (CTH) Freedom of Information Act 1982 ss 22, 1982
Rex Patrick and Department of Agriculture, Water and the Environment (Freedom of information) [2021] AICmr 57
Freedom of Information — whether disclosure would damage Commonwealth-State relations — whether documents contain deliberative matter prepared for a deliberative purpose —whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 —ss 11A(5), 47B and 47C
'YC' and Department of Foreign Affairs and Trade (Freedom of information) [2021] AICmr 53
Freedom of Information — whether disclosure would have a substantial adverse effect on the management of personnel — whether disclosure would have a substantial adverse effect on the proper conduct of the operations of an agency — whether disclosure of personal information is unreasonable — whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E(c), 47E(d) and 47F
'YB' and Department of Veterans' Affairs [2021] AICmr 52
Freedom of Information — whether reasonable steps taken to find documents — whether disclosure would have a substantial adverse effect on the management of personnel — whether disclosure of personal information unreasonable — whether contrary to the public interest to disclose conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 24A, 47E(c) and 47F
Walt Missingham and Australian Sports Commission [2021] AICmr 51
Freedom of Information — whether disclosure would have a substantial adverse effect on the proper and efficient conduct of agency operations — whether disclosure of personal information unreasonable — whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47E (d) and 47F
Commissioner initiated investigation into 7-Eleven Stores Pty Ltd (Privacy) (Corrigendum dated 12 October 2021) [2021] AICmr 50
Privacy — Privacy Act 1988 (Cth) — Australian Privacy Principles — APP 3.3 – APP 5 – whether facial images are personal information — whether consent obtained for collection of sensitive information — whether collection of sensitive information was reasonably necessary for entity’s functions and activities — whether reasonable steps were taken to notify of APP 5 matters – breaches substantiated – requirement to destroy faceprints collected through the customer feedback mechanism
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
ADMINISTRATIVE LAW – where applicant sought review in the Administrative Appeals Tribunal of decision by an internal reviewer under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) – whether Tribunal erred in finding that it lacked jurisdiction to consider additional supports requested by the applicant but not put before the internal reviewer – appeal allowed Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 5 – Indictment) [2021] FCA 1345
PRACTICE AND PROCEDURE – federal crime – interlocutory application – complete shemozzle – application objecting to indictment on the basis of formal defects apparent on the face of indictment pursuant to s 23CP(1)(a) of the Federal Court of Australia Act 1976 (Cth) – where Commonwealth Director of Public Prosecutions has previously been ordered to file a new indictment to remedy identified defects and deficiencies in an earlier indictment – whether new indictment filed is valid – application by the accused seeking to quash each count in the indictment and to be discharged – whether there are defects in the charges contained in new indictment – whether charges in indictment failed to describe the essential ingredients of the alleged offences – whether charges in indictment contained deficient particulars of knowledge of the accused – whether charges in indictment contained deficient particulars of conduct – whether charges in indictment fail to adequately identify conduct engaged in by the accused – principles of a valid indictment – where new indictment found to be defective and deficient – where defects in new indictment not such as to justify an order quashing indictment and discharging accused – where Commonwealth Director of Public Prosecutions ordered to file a valid indictment in accordance with r 3.01 of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) and the common law
Competition and Consumer Act 2010 (Cth), ss 79(1)(a), 79(1)(c), 79(1A), 44ZZRD, 44ZZRF, 44ZZRF(1), 44ZZRF(1)(b), 44ZZRF(2), 44ZZRG, 44ZZRG(1), 44ZZRG(1)(a), 84(2)
Criminal Code (Schedule to the Criminal Code Act 1995 (Cth)), ss 5.2(3), 11.2(1), 11.2(2), 11.2(2)(a), 11.2(3)(a), 11.5; Federal Court of Australia Act 1976 (Cth), ss 23BF(6), 23CE, 23CE(a), 23CP(2)(a), 23CQ
Federal Court (Criminal Proceedings) Rules 2016 (Cth), rr 1.04(1), 1.04(2), 3.01, 3.01(4)(c), 3.01(6), 3.07(3)
Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275
ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE MATTERS – PARTICULAR CASES – where the respondents issued Directions requiring the applicants to receive COVID-19 vaccinations – where the applicants sought judicial review of the respondents’ decisions to issue Directions – where the applicants were “persons aggrieved” within s 7 of the Judicial Review Act
ADMINISTRATIVE LAW – JUDICIAL REVIEW – where the subject matter of the judicial review applications were industrial matters – where the Industrial Relations Commission has exclusive jurisdiction to hear and decide questions arising out of an industrial matter – where the exclusive jurisdiction provisions of the Industrial Relations Act could not exclude the supervisory jurisdiction of the Supreme Court to determine questions as to whether there has been an excess of executive power – characteristics of Courts under Chapter III of the Constitution – where the Supreme Court has jurisdiction to hear the applications pursuant to its supervisory jurisdiction, Part 5 Judicial Review Act – whether the Supreme Court has jurisdiction to hear the applications pursuant to the statutory jurisdiction given to it under Part 3 of the Judicial Review Act
Civil Proceedings Act 2011 Qld s 10 Crime and Corruption Act 2001 Qld s 219E; Human Rights Act 2019 Qld s 15(1), s 17(c), s 20, s 21, s 48, s 50, s 51, s 58; Judicial Review Act 1991 Qld s 7, s 10, s 12, s 13, s 18, s 19, s 20, s 21, s 22, s 41, s 43, s 44, s 47, sch 1, sch 2
Lowis v Board of Professional Engineers Queensland [2021] QCAT 360
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to review a refusal of registration – whether application for registration refused or lapsed – whether Tribunal has jurisdiction to review Professional Engineers Act 2002 Qld s 8, s 12, s 14, s 23, s 25, s 27, s 122; Queensland Civil and Administrative Tribunal Act 2009 Qld s 17(1), s 47
Ferguson v Rossiter [2021] QCAT 359
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – where land is rural land – whether tribunal has jurisdiction
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes - where land rural
Land Title Act 1994 Qld; Land Valuation Act 2010 Qld s 9, s 10, s 11; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Qld s 42(1), s 42(2), s 42(3), s 42(4), s 45, s48(1), s 52, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 Qld s 3(b), s 4(b), 4(c), s 13, s 32(2), s 62(1), s 95(1)
Parlour v Carlile [2021] QCAT 358
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – claim for debt or liquidated demand of money – where loan between friends – where no formal loan agreement entered into – whether debt is outside limitation period – whether limitation period can be extended
Limitation of Actions Act 1974 Qld s 10(1)(a), s 35(3); Property Law Act 1974 Qld s 11; Queensland Civil and Administrative Tribunal Act 2009 Qld Schedule 3
BPH Brancatella Plant Hire Pty Ltd t/as Brancatella Plant Hire v JAXL Holdings Pty Ltd [2021] QCAT 356
COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – OTHER MATTERS – where parties entered into a building contract – where the amount in dispute in the claim and the counter claim exceeds $50,000 – where the proceedings were commenced in the Magistrates Court – where the respondent applied to have the matter transferred to the Tribunal – where the applicant opposed the application to transfer the proceedings – where the Magistrates Court ordered the transfer of the proceedings to the Tribunal – where the applicant subsequently consented to the transfer – whether the Tribunal has jurisdiction to hear the matter – consideration of s 94 of the Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Building and Construction Commission Act 1991 Qld s 77, s 78, s 79, s 94
Cassady v Hardings N.Q. Pty Ltd and Anor [2021] QCAT 353
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where the respondents operate a backpacker accommodation complex – where the respondents have a policy of not accepting bookings from locally based residents – the respondents’ policy is published on its own webpage and other accommodation booking websites – the applicant’s usual place of residence was in the same locality as the respondents – where the applicant was refused accommodation – whether comments made which do not contain a reference to an attribute constitutes discrimination on an attribute of race – whether direct discrimination
Anti-Discrimination Act 1991 Qld s 4, s 7, s 7(g), s 8, s 10(1), s 10(2), s 10(3), s 11, s 81, s 83(d), s 136, s 141 and Schedule 1; Queensland Civil and Administrative Tribunal Act 2009 Qld s 28(2), s 28(3)(a), s 28(3)(b)
Commonwealth
Bills
Electoral Legislation Amendment (Voter Integrity) Bill 2021
HR 28/10/2021 – This Bill makes amendments to the Electoral Act and Referendum Act to require voters to present acceptable identification documentation prior to receiving a ballot paper at polling places, pre-poll locations, and mobile polling locations, as recommended by the JSCEM’s reports into the conduct of the 2013, 2016 and 2019 elections
Electoral Legislation Amendment (Contingency Measures) Bill 2021
HR 28/10/2021 – The Bill amends the Electoral Act to provide the Electoral Commissioner with the power to modify limited provisions in the Electoral Act, an emergency declaration has been issued under a Commonwealth law
Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021
HR 28/10/2021 – The Bill amends the Electoral Act to strengthen the integrity of Australia’s electoral system by increasing the transparency and assurance of Senate counting, including independent assurances of the computer systems and processes used to capture and count votes.
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
HR 28/10/2021 – The Bill 2021 will implement significant improvements for participants, their families and carers by reducing red tape, increasing flexibility and clarifying timeframes for decision-making by providing for the Participant Service Guarantee.
National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021
HR 27/10/2021 – The Bill proposes to modify various aspects of the National Redress Scheme for Institutional Child Sexual Abuse to increase access to the Scheme for survivors of institutional child sexual abuse and to support effective administration.
Unsolicited Political Communications Legislation Amendment Bill 2021
HR – 25 October 2021 - The purpose of the Bill is to provide consumers with more control over the receiving of unsolicited electronic and telephone communication from political parties by addressing exemptions to laws that otherwise prohibit or limit telemarketing and spam communication.
Australian Federal Integrity Commission Bill 2021
HR 25/10/2021 - This bill establishes the Australian Federal Integrity Commission or ‘AFIC’ – which will have appropriate powers of assessment, investigation, and referral to enable clear, proportionate, and practical responses to allegations of serious and/or systemic corruption issues at the federal level in the public interest, with comprehensive procedural fairness and whistleblower safeguards.
Coal Prohibition (Quit Coal) Bill 2021
HR – 25/10/2021 - This Bill will prohibit the mining, burning and the export and importation of thermal coal in Australia by: Phasing out the export of thermal coal by 2030; Prohibiting the mining or burning of coal after 1 January 2030
Commonwealth Electoral Amendment (Disclosure of Political Donations) Bill 2021
HR – 25/10/2021 – The Bill amends the Commonwealth Electoral Act 1918 to require registered political parties, State branch of political parties, an individual political candidate, a group of political candidates, or associated entities to: Disclose all (cumulative) donations received
Commonwealth Electoral Amendment (Stop the Lies) Bill 2021
Hr – 25/10/2021 - This Bill amends the Commonwealth Electoral Act to prohibit misleading and deceptive political advertising during Federal elections. The Bill prohibits advertising that contains a statement of fact which is misleading or deceptive to a material extent or is likely to mislead or deceive to a material extent
Privacy (COVID Check-in Data) Bill 2021
25/10/2021 - This Bill will introduce a ban on using COVID-19 check-in data for enforcement related activity purposes by preventing Commonwealth, State or Territory authorities from using or providing COVID-19 check in data for law enforcement purposes.
Social Media (Basic Expectations and Defamation) Bill 2021
25/10/2021 - The intent of the Bill is to enable the Minister to set basic expectations of a social media service provider regarding the hosting of defamatory material on social media platforms, and secondly to ensure that service providers are liable for defamatory material hosted on their platforms that is not removed in a reasonable timeframe
Protecting Pensioners from the Cashless Debit Card Bill 2021
25/10/2021 - The Bill will amend the Social Security (Administration) Act 1999 to repeal law that allows the Government to compel social security recipients to use the Cashless Debit Card.
This will end the Government’s Cashless Debit Card program from 31 January 2022.
Aged Care Amendment (Making Aged Care Fees Fairer) Bill 2021
25/10/2021 - The Bill newly provides an inclusive definition of costs for which approved providers may charge as ‘administration and management’ fees.
Acts
Judges' Pensions Act 1968
26/10/2021 - Act No. 151 of 1968 as amended
Royal Commissions Act 1902
26/10/2021 - Act No. 12 of 1902 as amended
Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017
25/10/2021 - Act No. 113 of 2017 as amended
Privacy Act 1988
25/10/2021 - Act No. 119 of 1988 as amended
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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