Proctor : December 2018
12 PROCTOR | December 2018 How we work for good law Facing the onslaught of policy changes and proposed legislative amendments pumped out daily at federal and state levels can be a daunting task. Queensland Law Society, through its Legal Policy team and assisted by members of our 26 policy law committees, constantly reviews the multitude of Bills and subordinate legislation, policy papers and stakeholder consultations. The Society prioritises those which necessitate our involvement, having regard to the interests of our members, the pursuit of good law and the need to uphold fundamental legislative principles. Applying a collaborative approach of seeking feedback from the wider QLS membership and relying heavily on the expert practitioners who comprise our policy committees, QLS strives to conduct a comprehensive review of each item and provide a response which is grounded in the tenants of our well- established legal framework and evidence- based reasoning. As of 31 October 2018, this approach has seen QLS make 190 reactive submissions and 18 proactive submissions, attend 18 parliamentary committee public hearings, and participate in 132 consultations as a key stakeholder since 1 January 2018. This degree of effort and volunteer contribution from our policy committee members produces tangible results, and it has not gone unnoticed. QLS has steadily built a reputation for providing impartial and clear advice with respect to policy and legislative change, and our input is often sought by government and the judiciary at an early stage. Consultation is one thing; evolving this into influence is another. We are pleased to report that, over 2018 (up to 31 October), the Legal Policy team recorded 103 quotes in Hansard. These provide the evidence that our input is being sought early in the legislative process, that our submissions are used to direct parliamentary debate, and that amendments are being made to legislation on the basis of our advice. Two recent examples of this influence are detailed below. The Mineral, Water and Other Legislation Amendment Bill 2018 was passed on 18 October 2018. The Bill was originally introduced in 2017, prior to the dissolution of Parliament in November 2017. It was reintroduced by Dr Anthony Lynham MP on 15 February 2018. The Bill was then referred to the parliamentary State Development, Natural Resources and Agricultural Industry Development Committee for consideration. In our submission, we highlighted the potential implications for stakeholders as a result of proposed changes to professional costs incurred in negotiation for a conduct and compensation agreement (CCA). We noted the policy intention to divorce professional costs associated with the provision of professional advices which are reasonably and necessarily incurred in the negotiation of a CCA. The decoupling of costs from other compensatable effects was intended to ensure that a landholder would be recompensed for these costs in the event that an agreement between the parties was not reached. QLS raised concerns about these proposed changes and the introduction of a new section 91 into the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCP), as potentially having the effect of changing the way a claimant’s costs are treated by parties. On 9 March 2018, members of the QLS Mining and Resources Committee attended the public hearing on the Bill. The parliamentary committee sought further advice concerning the drafting of the changes to professional costs. We referred to the explanatory notes and the policy intention to include agronomist costs as a professional fee that a landholder may be able to recover from a resource authority holder. QLS provided the parliamentary committee with alternative drafting, amending an existing clause in MERCP to achieve the policy objective, rather than including a new section. The parliamentary committee report subsequently recommended that the Bill be amended to reflect the advice of QLS and adopt the alternative drafting. Shortly after the public hearing, the Department of Natural Resources, Mines and Energy contacted QLS requesting further consultation and advice on the proposed new section, after further clarifying the policy intent of the proposed provisions. Having considered the department’s amended and more detailed description of the policy intent, QLS responded to set out a number of concerns regarding the original draft of the Bill, including: • There was no clear trigger event or time from which the eligible claimant’s costs start to accrue, posing a risk that owners and occupiers of land could incur upon the grant of an exploration authority over their property. • There was also no clear end point after which costs should cease to accrue, imposing the risk that owners and occupiers of land could continue to incur costs without realising that the resource authority holder was no longer required to reimburse for those costs. We provided alternative drafting for the section to reflect the policy intention set out in the explanatory notes, to include an agronomist as a professional fee that a landholder may be able to recover from a resource authority holder, and to address the concerns about timing to provide clarity for both parties. During the parliamentary debate on the Bill, Natural Resources, Mines and Energy Minister Dr Lynham noted the recommendation by the parliamentary committee to follow the advice of QLS. There are 250,000 Commonwealth public servants. There are 30,000 Queensland public servants. They are all making new policy and drafting legislation...” – Matthew Dunn, Queensland Law Society General Manager, Policy, Public Affairs and Governance.