Norman Waterhouse
   
Norman Waterhouse

Normans Briefly

In this issue

Welcome to the August edition of our Local Government Briefly.

Record attendance at leading local government event

Norman Waterhouse recently held South Australia’s largest legal conference for local government, which attracted a record attendance of 260 delegates with representatives from all of the state’s 68 councils. 

The Norman Waterhouse Local Government Conference was held on 9 August 2013 at the Adelaide Entertainment Centre and provided delegates with three streams, which included:

  • A planning stream run by Partner, Gavin Leydon, covering a review of all the important cases in the past 12 months.
  • A property stream led by Partner, Property and Commercial Sean Keenihan which covered a case study on how councils can get the best value from procurement.
  • A discussion facilitated by Partner, Sathish Dasan on the policy and organisational frameworks under the new ICAC regime.

The day concluded with a plenary session featuring the new ICAC Commissioner, His Honour Justice Bruce Lander, who spoke about his office and the implications of ICAC for local government.

Local Government specialist and Norman Waterhouse Chairman of Partners Sean Keenihan said this year’s conference was the most successful event in its 24-year history.

“The program we delivered was thought provoking and informative for our local government delegates and the feedback we’ve had has been overwhelmingly positive,” he said.

Feedback on this event

If you attended the conference, we encourage you to provide feedback so we may continue to improve this event. Please click here for the link to evaluate the conference.

Walking the Talk – Industrial Relations in the Real World
Full Day Seminar
4th April 2014

Following our highly successful industrial relations conference in 2013, the Norman Waterhouse Employment and Industrial Relations Team invites you to join them again for a full day of in-depth and interactive analysis of workplace issues.

Please click here to download a printable flyer.

This is your chance to submit your topics of interest to marketing@normans.com.au.

>   Employment – When non-adherence with an enterprise bargaining agreement becomes constructive dismissal
>   Local Government – Two important legislative events for Local Government – SACAT and FERO
>   Town Planning – When can interested parties join a planning appeal?
>   Construction – An alternative form of Security of Payment challenge
>   Work Health and Safety – Two recent developments in South Australia
>   Environment and Planning – Amendments to the Natural Resources Management Act 2004

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Employment – When non-adherence with an enterprise bargaining agreement becomes constructive dismissal

The recent Fair Work Commission (FWC) case of Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144 has demonstrated that an employer’s failure to adhere to an enterprise agreement may, if an employee then leaves their employment as a result, form the basis of the ‘constructive dismissal’ of that employee. An employee who has been constructively dismissed has the same rights and remedies available to them as employees dismissed in more conventional ways. This case is relevant to all employers, as the doctrine of constructive dismissal applies in all Australian industrial relations jurisdictions — this includes both the Federal and the South Australian State jurisdictions.

The case also demonstrates the increasing significance bestowed upon parental leave rights in the Australian industrial law landscape.

The facts

The employee had been employed as a full-time data administrator before commencing parental leave, which was made up of paid leave for several weeks, followed by unpaid leave. Towards the end of her parental leave period, she entered into discussions with the employer regarding her return to work. Some provisional negotiations took place, during which the idea of a phased part-time to full-time return to work strategy was advanced by the employee.

The employer offered the employee a strategy that would have her back at full-time after approximately three months. The employee declined, stating that she would prefer an indefinite period of part-time work, which she would seek to elevate to full-time once she considered herself ready. The relevant enterprise agreement entitled the employee to request a return to work on a part-time basis, and to remain part-time ‘until the child reaches school age’. The enterprise agreement permitted the employer to refuse such a request only ‘on reasonable grounds’.

The employer refused the employee’s request for part-time work, stating that the employee’s role of data administrator was a full-time role, and that this was necessary considering the role of the data administrator in the workplace. The employer contended that the need for a full-time, on-site data administrator was supported by the employer’s engagement, during the employee’s absence, of a part-time external contractor, an arrangement which the employer contended was not satisfactory.

The proceedings – consideration of ‘constructive dismissal’

After some further failed negotiations, the employee severed her ties with the employer and lodged an application for the FWC to deal with a dispute involving a dismissal (a general protections application, not an unfair dismissal application). The employer accordingly contended that the employee had in fact not been dismissed at all, and thus the application should not be heard.

The question that the FWC was required to answer was whether the employee had been dismissed. The FWC examined the doctrine of ‘constructive dismissal’, whereby an employee may be held in law to have been dismissed if, as a result of employer conduct which is sufficiently ‘inimical’ (or, in other words, ‘adverse, unfriendly or hostile’) to the continuance of the employment relationship and contract (despite the absence of any express termination event), the employee treats their employment as at an end. Constructive dismissal is a common law concept, and thus is applicable to all employers in all jurisdictions in Australia.

Upon examining the facts of the case, the FWC considered that the employer’s arguments about the necessity of a full-time data administrator were undermined by the fact that the employer evidenced no intention to hire a new full-time data administrator. The FWC noted that the part-time external contractor arrangement was still in place and there was no suggestion that this arrangement would cease. Accordingly, the FWC considered that the employee could have returned on a part-time basis. She could have replaced the external contractor and provided a higher quality of service, even in a part-time role.

This refusal of the employee’s request to return to work part-time was held to be a breach of the enterprise agreement. The employer was entitled under the enterprise agreement to refuse a request for part-time employment following parental leave only ‘on reasonable grounds’. The FWC considered that the employer’s refusal was unreasonable, and thus breached the terms of the enterprise agreement.

The FWC then determined that the employer’s failure to carry out its obligations under the enterprise agreement was relevant conduct for the purposes of determining whether the employee had been constructively dismissed. The FWC, taking into account the importance placed on parental leave in modern times, considered that the seriousness of the conduct was sufficiently ‘inimical’ to the continuance of the employment relationship and contract to form the basis of constructive dismissal. Therefore, the employee was entitled to treat her employment as at an end and be considered constructively dismissed.

Take home message

While an enterprise agreement and a common law contract of employment are distinct legal instruments, this case demonstrates a profound way in which an employer’s deficiencies in adhering to the former may impact upon the status of the latter. In this case, an employer’s failure to properly discharge its obligations under an enterprise agreement was held to be conduct sufficiently inimical to the continuance of the employment relationship and contract. This entitled the employee to ‘walk away’ from the employment and be considered ‘constructively dismissed’.

Employers should understand and adhere to procedures and requirements imposed by their enterprise bargaining agreements. Particular attention must be paid where there is a parental leave clause in an enterprise bargaining agreement and an employee is looking to return to work after a period of parental leave. The FWC has now endowed such provisions with significant weight when considering whether non-adherence with an enterprise agreement may form the basis of constructive dismissal.

On a more general note, this case demonstrates the growing recognition and importance that parental leave rights are gaining in Australian industrial law. The FWC noted in this case that:

‘while the opportunity for part-time work on return from parental leave might not long ago have been considered a fortunate privilege ... contemporary circumstances require a different view.’

Even where enterprise agreements do not contain a clause in the form demonstrated in this case, employers must still treat a request for a part-time return from parental leave fairly and refuse it only with good reason (particularly in light of the rights of federal system employees to ‘flexible working arrangements’ regarding parental responsibilities under Section 65(1) of the Fair Work Act 2009 (Cth)).

For more specific information on any of the material contained in this article please contact Sathish Dasan on 08 8210 1253 or sdasan@normans.com.au.


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Local Government – Two important legislative events for Local Government – SACAT and FERO

Since our last edition of the Local Government Briefly, two occurrences of landmark significance for the governance and regulatory aspects of Local Government have taken place in the South Australian Parliament.

Firstly, a Bill was introduced into Parliament to establish the South Australian Civil and Administrative Tribunal (SACAT), a tribunal which will hold great significance for Local Government. Secondly, the Bill establishing the Fines Enforcement and Recovery Officer (FERO) was passed by both houses of Parliament, received assent and has become an Act.

The SACAT

The Attorney-General recently tabled in Parliament the South Australian Civil and Administrative Tribunal Bill 2013 (SA) (the SACAT Bill). The SACAT Bill provides for the establishment of a specialised tribunal designed to deal with administrative grievances, public sector disciplinary proceedings and other similar proceedings. While the legislative process for the passage of the SACAT Bill through Parliament has only just commenced, the rationale and substance behind the SACAT Bill has been developed through many years of consideration, consultation and recommendations.

The SACAT Bill provides only for the operational structure of the SACAT, and does not contain any provisions endowing jurisdiction. In other words, the SACAT will at first be a tribunal with no matters it can hear. However, it is not anticipated that the SACAT is going to hear and determine some new type of dispute or application. Rather, the functions of various other tribunals will over time be transferred to the SACAT, so as to centralise the processing of administrative and disciplinary complaints, applications and reviews, and other proceedings.

Importantly for Local Government, the jurisdiction of the District Court Administrative and Disciplinary Division appears to be a likely candidate to be transferred to the SACAT. If this were to occur, matters presently heard in that division – including reviews of council decisions and complaints against Elected Members – would be heard in the SACAT instead. The effect of this would be faster, more accessible and less formal hearing of such matters than is presently the case in the District Court.

Once the SACAT Bill becomes law, a President of the SACAT will be appointed. That person will be significantly involved in consultation to determine the scope of the SACAT’s jurisdiction. The introduction of jurisdictional elements will be phased in through one or more separate pieces of future legislation.

The FERO

While the SACAT Bill has only just entered Parliament, another important Bill for Local Government recently finished its passage through Parliament and has been assented to law. Regular readers of the Local Government Briefly will recall our previous articles regarding the draft Bill to establish the FERO, and regarding the tabling of the formal Bill in Parliament.

As a quick refresher — the FERO will be a new public officer with the express purpose of recovering unpaid fines. The FERO will possess significant powers for achieving this purpose, including powers to garnish income and to sell private residences. The FERO will take over from the Court's present role in the recovery of fines, including the recovery of fines owed to councils. Debts recovered by the FERO will still be paid to the relevant council. The most relevant aspect for Local Government of the new scheme is its impact on the Expiation of Offences Act 1996 (SA) (EO Act).

The Bill underwent some amendment in Parliament. However, the way in which the FERO will operate and the ways in which the Bill will amend the EO Act are largely unchanged since the introduction of the Bill. The Bill has now become law as the Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (FERO Act).

The FERO Act has not yet commenced. However, once the FERO system is operational, all debts owed pursuant to the EO Act will be potential targets for recovery by the FERO, including debts incurred prior to the commencement of the FERO Act. Once these amendments commence, there will be a need for councils to update their expiation notices and ensure their internal processes comply with the required procedures under the new regime. We are eager to help councils in their dealings with the FERO.

For more specific information on any of the material contained in this article please contact Paul Kelly on 08 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on 08 8210 1221 or dmazzachi@normans.com.au.


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Town Planning – When can interested parties join a planning appeal?

The ERD Court has recently had an opportunity to consider the legal principles relevant to when interested parties can join in a planning appeal.

Applications to be joined often arise in planning and environmental litigation. This is because planning decisions result in direct, physical impacts to the environment which often extend beyond the land to be developed. For example, a new two-storey dwelling could overshadow and overlook neighbouring land, a commercial development proposed in a rural setting could impact flora and fauna, or the waste produced by an industrial complex could affect the quality of air in the vicinity.

Section 17 of the Environment, Resources and Development Court Act 1993 empowers the Court to join an interested party to any proceedings (other than criminal proceedings). This power was considered in Carruthers v City of Mitcham [2013] SAERDC 36.

The facts

Mr Carruthers sought approval for the partial demolition of an existing veterinary clinic and the construction of an office building with associated car parking, signage and landscaping. The application was a Category 2 application, and Kabaa Pty Ltd (Kabaa) lodged a representation objecting to the proposal. Kabaa owned the adjoining land and operated an “On The Run” service station.

The application was refused by the City of Mitcham (Council). Mr Carruthers lodged an appeal and about one month later Kabaa lodged an application to be joined. Kabaa wanted to be joined so it could raise its concerns with the Court regarding the proposed development, namely:

  • the location of an access driveway and associated risks of conflicting right turn manoeuvres from the site;
  • lack of car parking provision on-site (with the overspill likely to park in Kabaa’s carpark); and
  • inadequate setback from the primary street frontage (affecting Kabaa’s visibility to passing traffic).

When will the Court allow a person to be joined?

While Section 17 of the ERD Court Act is permissive, Section 88(2)(c) of the Development Act 1993 specifically invites the court not to exercise that power if:

  • an applicant to be joined cannot demonstrate a special interest; or
  • it is in the interests of justice not to join the party (even if they have a special interest).

The onus is on the interested party to persuade the Court that it has a special interest in the application, or that the interests of justice require the applicant be joined.

In considering whether an interested party has a special interest, the Court will typically consider such factors as:

  • the nature and strength of their interest in the decision under appeal;
  • whether their contribution is likely to assist in a proper resolution of the issues;
  • whether their interest and the material to be advanced will be adequately dealt with by the parties already before the Court; and
  • whether participation of the interested party will unduly delay or side-track the proceedings.

I note that in O’Neill v Kimhi [2008] SASC 109, the Supreme Court previously observed that:

  • as a general rule, an adjoining neighbour will always have a sufficient interest in an application to justify joinder; and
  • if an interested party has a special interest in the subject matter of the appeal and is also able to call evidence and make submissions, that is likely to constitute sufficient grounds for joinder.

The outcome

The Court found that Kabaa had a special interest in the matter.  Kabaa was an adjoining owner who operated a business in a commercial zone. It therefore had a legitimate interest maintaining its visibility, ensuring safe vehicle manoeuvring, and preventing a shortfall in car parking which might affect its use of its land.

Further, Kabaa indicated a clear intention to call expert evidence to support its case on these matters.  The Court noted that the other parties were unlikely to take up those matters, and observed that “an applicant for joinder is normally required to raise additional issues of planning relevance if their application is to succeed”.

The Court joined Kabaa as a respondent to the proceedings.

For more specific information on any of the material contained in this article please contact David Billington on 8210 1263 or dbillington@normans.com.au.


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Construction – An alternative form of Security of Payment challenge

You will be aware that our Construction team has been closely following the application and impact of the Building and Construction Industry Security of Payment Act 2009 (SA) (Act).

A recent decision of the Supreme Court of South Australia has rejected a novel approach by a principal to challenge a payment claim and provided guidance on when, and for what reason, a party may appeal an adjudication determination made pursuant to the Act.

The facts

The case in question is Adelaide Interior Linings Pty Ltd v Romaldi Constructions Pty Ltd [2013] SASC 110.

The appellant, Adelaide Interior Linings Pty Ltd (AIL) was engaged by the Respondent, Romaldi Constructions Pty Ltd (Romaldi), to supply and install internal and external lining at a construction site managed by Romaldi. The parties entered into a subcontract agreement for the provision of the works. AIL issued an invoice for progress payments to Romaldi for the work it had carried out.  This amount was not paid.

AIL then sought to recover the payment pursuant to the Act. It provided a payment claim to Romaldi who subsequently responded with a payment schedule, with which AIL disagreed. AIL referred the matter to adjudication under the Act and on adjudication it was determined that Romaldi was required to pay $51,219.83 to AIL.

Before AIL could obtain  an adjudication certificate for the adjudicated amount and file the certificate in the Court to establish a judgement debt against Romaldi, Romaldi brought an action in the District Court to prevent the enforcement of the adjudication determination. In these cases, the usual course of action to prevent the enforcement of an adjudication determination, which has been extensively used in New South Wales, is to seek judicial review of the adjudication determination and an injunction to prevent enforcement of the determination while the Court is considering the matter.  However, in this case, Romaldi sought an order for the preservation of property on the basis that there was a serious risk that AIL was trading insolvent. Romaldi also instigated proceedings against AIL seeking damages of $61,840.06 on the basis that AIL had abandoned the project site and failed to complete the construction works pursuant to the subcontract agreement.

The key issue for consideration by the Court in this matter was whether it was acceptable for Romaldi to effectively instigate ‘appeal’ proceedings outside the scope of the Act or whether the District Court action circumvented the intended objects and purpose of the Act.

The Act

The purpose of the Act is to ensure that subcontractors are entitled to claim progress payments and be paid accordingly for work performed under a construction contract. Where a subcontractor is not paid a progress payment they can follow the procedure set out in the Act which may ultimately see an adjudicator make a determination as to the amount to be paid in respect of the progress payment.  

A party who is required to pay an amount pursuant to an adjudication determination has limited ability under the Act to appeal the decision. Section 22(5) of the Act gives either the adjudicator or the parties the opportunity to correct an adjudication determination to the degree that there has been a clerical mistake, error from accidental slip or omission, a material miscalculation of the figures or a defect of form. The circumstances in which an adjudication determination can be changed pursuant to this section largely go to the form as opposed to the substance of the determination. Outside of section 22(5), there is no mechanism in the Act to appeal the adjudication determination.  

The decision

The District Court initially accepted that Romaldi was entitled to bring its action in the Court and it granted an injunction to prevent AIL from pursuing the adjudication amount against Romaldi. This decision was rejected on appeal by the Supreme Court. Justice Anderson held that outside the scope of section 22(5) of the Act, Romaldi had no mechanism available to it by which it could appeal the adjudication determination. The Court held that once Romaldi had accepted the validity of the adjudication, which it acknowledged that it had, it would be circumventing the purpose of the Act to permit Romaldi to bring proceedings to prevent the adjudicated amount being paid.

Further to Justice Anderson’s reasons, his Honour highlighted that section 25(4) of the Act specifically prevents a person from taking action to set a judgement aside. Romaldi was attempting to do this in this instance. Justice Anderson, however, did acknowledge that judicial review against the adjudication determination would be available to Romaldi if there was a basis for judicial review proceedings to be pursued.

What does this decision mean?

This case highlights that where an adjudicator has made a determination in accordance with the Act, that adjudication may only be challenged under the Act where there has been a clear mistake in its drafting or form. The Act does not consider or permit a party who has a determination made against them to appeal against the decision of the adjudicator. However, Justice Anderson confirmed that judicial review of an adjudication determination remains available to the parties to the adjudication.  Judicial review is, however, a review of the legality of the exercise of the adjudicator’s powers and is not a review of the merits of the adjudicator’s decision.  Justice Anderson also confirmed that New South Wales case law could be used to provide guidance in the interpretation of the Act.

If a principal or a contractor are aggrieved by an adjudication determination, the available and appropriate course of action for the aggrieved party will depend on the facts involved. Please contact us if you are involved in the processes under the Act and require assistance.

For more specific information on any of the material contained in this article please contact Mark Henderson on 8210 1220 or mhenderson@normans.com.au or Lisa Hubbard on 8217 1369 or lhubbard@normans.com.au.


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Work Health and Safety – Two recent developments in South Australia

The relatively new Work Health Safety Act 2012 (SA) (the WHS Act), which has regulated workplace safety in South Australia since 1 January 2013, has recently been the subject of two interesting developments. Firstly, a legislative amendment has removed an unintended privilege which allowed companies to refuse to answer questions. Secondly, the Magistrates Court of South Australia has highlighted the issue of insurance policies which indemnify persons against criminal penalties in the work health and safety setting.

The removal of companies’ privilege against self-incrimination

South Australia’s WHS Act diverges slightly from its interstate equivalents (‘harmonised’ does not equal identical). One unique South Australian feature at the time the WHS Act commenced was a privilege which allowed persons to refuse to answer inspectors’ questions and/or to provide information or documents, on the ground that the information ‘may tend to incriminate that individual’. This is a point of difference with most interstate work health and safety Acts, under which persons must answer questions and provide information despite a tendency for incrimination (but that information then cannot be used as evidence against the person).

A ‘person’ includes both natural individuals and companies. Thus, the South Australian provision, as originally drafted, allowed companies to rely on the privilege against self-incrimination and refuse to answer questions or provide information. This posed a clear problem for the proper inspection and investigation of an incident: if a company were being investigated in respect of an incident, the company could refuse to answer questions or provide information on the grounds that the information may indicate or establish a criminal offence. This would be unreasonable and unworkable, as whether or not such an offence has occurred is one of the most important things that an inspector would be seeking to determine.

In response to this issue, the South Australian Parliament amended the relevant provision of the WHS Act (Section 172) to refer only to ‘individuals’, rather than persons. Companies are thus excluded from the privilege.

What this means in practice is that an individual may still, on the grounds of self-incrimination, refuse to answer questions directed at them as an individual. However, if such an individual also has sufficient authority to be considered as a representative of a relevant company, an inspector may address a question to that individual in their capacity as a representative of the company. The individual would be required to answer such a question.

Companies should make clear who within their organisational structure is authorised to provide information to safety inspectors on behalf of the company. A clear understanding of such authorisation will diminish instances of inappropriate persons being compelled by inspectors to divulge information on behalf of the company.

Hillman v Ferro Con: Consideration of the status of indemnity against WHS penalties

The Magistrates Court of South Australia has drawn attention to an issue inherent in safety legislation throughout the nation in the case of Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22.

That case related to a death that occurred during construction of the Lonsdale desalination plant after a steel beam fell from a sling onto a worker. The company and an individual director of the company were each prosecuted. The prosecutions were conducted under the old legislation due to the date of the incident, however a major aspect of the case is just as relevant under the WHS Act, a fact which the Court specifically highlighted.

That major aspect is that the company and the director had both taken out insurance policies which shielded each of them from having to pay all but a $10,000 excess of the $200,000 fines imposed upon them. The Court was aware of these policies, and so when imposing a penalty refused to grant any discount based upon the guilty pleas and the regret and remorse of the defendants. The Court was strongly critical of the defendants’ having ‘taken positive steps to avoid having to accept most of the legal consequences of their criminal conduct’.

It is established that insurance for intentional criminal acts is invalid. However, the way in which this doctrine fits in with Australian safety law has not been considered in great detail. The Court in this instance gave only passing consideration to whether it could find the insurance policy invalid on the grounds of public policy, as it could not in this case examine the actual provisions of the insurance policy.

The Court did however consider Section 272 of the WHS Act which, at present, does render void any term of a contract which seeks to exclude, limit or modify the operation of the WHS Act or any duty owed under it, or to transfer any duty to another person. However, the Court considered that policies like the one exhibited in this case are not captured by that section, as they do not affect the operation of the Act and do not transfer any duty. The Court noted that it is up to Parliament whether to amend the WHS Act to expressly render such policies invalid.

Persons with such policies who breach WHS legislation can expect more strict sentences than would otherwise be the case, potentially including penalties of imprisonment wherever available to the Court. Under the WHS Act, the maximum penalty which can be imposed upon an officer of a person conducting a business or undertaking is a $600,000 fine plus five years’ imprisonment for a Category 1 offence.

Parliament may heed the concerns of the Court and change the law. It is also possible that at some stage in the future a court will approach this issue differently, as it may be arguable that such policies are indeed already illegal. All persons, particularly persons conducting a business or undertaking and officers for the purposes of the WHS Act, should thus be aware that the legality of policies excluding criminal penalties for safety breaches is now a live issue.

For more specific information on any of the material contained in this article please contact Michael Foley on 08 8217 1355 or mfoley@normans.com.au.


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Environment and Planning – Amendments to the Natural Resources Management Act 2004

Material changes will be made to the Natural Resources Management Act 2004 (NRM Act) in the near future.  The Natural Resources Management (Review) Amendment Bill 2010 (Bill) has now been passed by both Houses of Parliament and will amend or repeal some 40 sections of the NRM Act.

Background to the NRM Act

In 2004 the South Australian Government introduced the NRM Act. The Act was intended to provide a more integrated and sustainable structure for managing the State's soils, water, plants, animals and diversity of landscapes and ecosystems. Previously, these were managed across three separate pieces of legislation – the Water Resources Act 1997, Soil Conservation and Land Care Act 1989 and the Animal and Plant Control (Agricultural and Other Purposes) Act 1986.

The NRM Act replaced these arrangements with a single institutional framework. It established a Natural Resources Management Council, eight regional NRM boards, as well as a Chief Officer and authorised officers. The overall responsibility for natural resources management rested with the Minister administering the Act.

At the end of the 2006-2007 financial year, a review of the NRM Act was undertaken in accordance with Section 234. This review led to the tabling of a report before both Houses of Parliament which made over 60 recommendations - including a number of legislative amendments. The Bill reflects many of the recommendations, and has been the subject of rigorous parliamentary debate.

Amendments to the NRM Act

The Bill amends the following aspects of the NRM Act:

  • Defined terms;
  • Membership and reporting duties of administrative NRM bodies;
  • Powers and offences pertaining to authorised officers;
  • Preparation, consultation, and review of water allocation plans and the NRM Board’s business plans;
  • Procedures involving the licensing and taking of water; and
  • Movement and control of certain animals and plants. 

Of these, the following amendments are particularly noteworthy:

  • The repeal of Section 72, which presently permits a person not to answer questions, nor produce documents or records, if doing so might incriminate them or make them liable to penalty (including NRM Act enforcement proceedings).

    This amendment was controversial. The Government initially proposed substitution of the section with a regime similar to that found in Section 19 of the Development Act 1993.  That is, a person must answer question and produce documents even if that would incriminate them, but such answers or documents would be inadmissible against the person in proceedings for an offence or the imposition of a penalty (other than for making a false or misleading statement).

    Ultimately, Section 72 was simply repealed. As a consequence, those persons required to answer questions or produce documents will be entitled to rely on the privilege against self-incrimination afforded by the common law.
     
  • Under Section 69 (powers of authorised officers), if an authorised officer causes damage by digging up land in the exercise of their powers, then the entity who appointed the officer is liable to pay compensation to any person suffering loss on account of the officer’s digging.
     
  • The power of an authorised officer to use reasonable force to break into any place or vehicle under section 69(1)(d) has been circumscribed. This power previously required an officer to have either the authority of a warrant issued by a magistrate, or a reasonable belief that immediate action was required.
     
  • Under the current scheme, reasonable force can still be used with the authority of a magistrate’s warrant. However, the reasonable belief that immediate action is required is limited to the presence of a Category 1 or 2 animal on the land or vehicle. In addition, reasonable force can be used with the permission of the owners of the land or vehicle.
     
  • Section 73 (offences by authorised officers) has been expanded to include circumstances where an authorised officer represents that he or she is authorised to exercise a particular power (under any Act) when they in fact are not so authorised.  Authorised officers will consequently have to bear in mind at all times the limits of their powers.
     
  • Under section 164N, the right to access water from a defined water resource will be automatically transferred to successors-in-title upon the transfer of the land to which these rights relate.

For more specific information on any of the material contained in this article please contact John Watson on 8210 1245 or jwatson@normans.com.au.


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