Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

Crown copyright

Copyright protects much of the creative, cultural, educational, scientific and informational material generated by federal, State/Territory and local governments and their constituent departments and agencies. Governments at all levels develop, manage and distribute a vast array of materials in the form of documents, reports, websites, datasets and databases on CD or DVD and files that can be downloaded from a website. Under the Copyright Act 1968 (Cth), with few exceptions government copyright is treated the same as copyright owned by non-government parties insofar as the range of protected materials and the exclusive proprietary rights attaching to them are concerned. However, the rationale for recognizing copyright in public sector materials and vesting ownership of copyright in governments is fundamentally different to the main rationales underpinning copyright generally. The central justification for recognizing Crown copyright is to ensure that government documents and materials created for public administrative purposes are disseminated in an accurate and reliable form. Consequently, the exclusive rights held by governments as copyright owners must be exercised in a manner consistent with the rationale for conferring copyright ownership on them. Since Crown copyright exists primarily to ensure that documents and materials produced for use in the conduct of government are circulated in an accurate and reliable form, governments should exercise their exclusive rights to ensure that their copyright materials are made available for access and reuse, in accordance with any laws and policies relating to access to public sector materials. While copyright law vests copyright owners with extensive bundles of exclusive rights which can be exercised to prevent others making use of the copyright material, in the case of Crown copyright materials these rights should rarely be asserted by government to deviate from the general rule that Crown copyright materials will be available for “full and free reproduction” by the community at large.

A proposed model for successful implementation of e-Government in Malaysia

This paper proposes a theoretical model for e-Government in Malaysia and addresses issues involved in its implementation. It presents three possible models including the Framework for Electronic Government (Grant & Chau, 2005), the Three Pillars Framework (Georgescu, 2007) and The Grid-Group Theory from cultural studies (Douglas, 1996) and integrates and adapts them to the specific needs of the Malaysian environment.

E-Government and the digital divide

Many governments world wide are attempting to increase accountability, transparency, and the quality of services by adopting information and communications technologies (ICTs) to modernize and change the way their administrations work. Meanwhile e-government is becoming a significant decision-making and service tool at local, regional and national government levels. The vast majority of users of these government online services see significant benefits from being able to access services online. The rapid pace of technological development has created increasingly more powerful ICTs that are capable of radically transforming public institutions and private organizations alike. These technologies have proven to be extraordinarily useful instruments in enabling governments to enhance the quality, speed of delivery and reliability of services to citizens and to business (VanderMeer & VanWinden, 2003). However, just because the technology is available does not mean it is accessible to all. The term digital divide has been used since the 1990s to describe patterns of unequal access to ICTs—primarily computers and the Internet—based on income, ethnicity, geography, age, and other factors. Over time it has evolved to more broadly define disparities in technology usage, resulting from a lack of access, skills, or interest in using technology. This article provides an overview of recent literature on e-government and the digital divide, and includes a discussion on the potential of e-government in addressing the digital divide.

Policy into practice : adoption of hazard mitigation measures by local government in Queensland : a collaborative research project between Queensland University of Technology and Emergency Management Queensland in association with Local Government of Queensland Disaster Management Alliance

The focus of the present research was to investigate how Local Governments in Queensland were progressing with the adoption of delineated DM policies and supporting guidelines. The study consulted Local Government representatives and hence, the results reflect their views on these issues. Is adoption occurring? To what degree? Are policies and guidelines being effectively implemented so that the objective of a safer, more resilient community is being achieved? If not, what are the current barriers to achieving this, and can recommendations be made to overcome these barriers? These questions defined the basis on which the present study was designed and the survey tools developed. While it was recognised that LGAQ and Emergency Management Queensland (EMQ) may have differing views on some reported issues, it was beyond the scope of the present study to canvass those views. The study resolved to document and analyse these questions under the broad themes of: • Building community capacity (notably via community awareness). • Council operationalisation of DM. • Regional partnerships (in mitigation/adaptation). Data was collected via a survey tool comprising two components: • An online questionnaire survey distributed via the LGAQ Disaster Management Alliance (hereafter referred to as the “Alliance”) to DM sections of all Queensland Local Government Councils; and • a series of focus groups with selected Queensland Councils

Women and representation in local government : international case studies

Women and Representation in Local Government opens up an opportunity to critique and move beyond suppositions and labels in relation to women in local government. Presenting a wealth of new empirical material, this book brings together international experts to examine and compare the presence of women at this level and features case studies on the US, UK, France, Germany, Spain, Finland, Uganda, China, Australia and New Zealand. Divided into four main sections, each explores a key theme related to the subject of women and representation in local government and engages with contemporary gender theory and the broader literature on women and politics. The contributors explore local government as a gendered environment; critiquing strategies to address the limited number of elected female members in local government and examine the impact of significant recent changes on local government through a gender lens. Addressing key questions of how gender equality can be achieved in this sector, it will be of strong interest to students and academics working in the fields of gender studies, local government and international politics.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.

Gender patterns for aspirations for transitional employment and training and development in local government

Purpose – The purpose of this paper is to determine the patterns of transitional employment (TE) aspirations and training and development (T&D) needs of women within local government. Design/methodology/approach – A quantitative survey methodology was used to identify aspirations in a sample of 1,068 employees from the Australian Local Government Association. Findings – Mature-aged women were very interested in continuous learning at work despite their limited formal education. Their training preferences consisted of informal delivery face-to-face or online in the areas of management or administration. Younger women were interested in undertaking university courses, while a minority were interested in blue collar occupations. Practical implications – Through the identification of patterns of TE and T&D aspirations, long term strategies to develop and retain women in local government may be developed. Findings suggest that mature-aged women would benefit from additional T&D to facilitate entry into management and senior administration positions, as well as strategies to facilitate a shift in organizational climate. Social implications – Mature-aged women were found to be a potentially untapped resource for management and senior administrative roles owing to their interest in developing skills in these fields and pursuing TE. Younger women may also benefit from T&D to maintain their capacity during breaks from employment. Encouragement of women in non-traditional areas may also address skill shortages in the local government. Originality/value – Mature-aged women were found to be a potentially untapped resource for management and senior administrative roles owing to their interest in developing skills in these fields and pursuing TE. Younger women may also benefit from T&D to maintain their capacity during breaks from employment. Encouragement of women in non-traditional areas may also address skill shortages in the local government.

Property Agents and Motor Dealers Act : strike three

The Tourism, Racing and Fair Trading (Miscellaneous Provisions) Act 2002 (“the Act”) which was passed on 18 April 2002 contains a number of significant amendments relevant to the operation of the Property Agents and Motor Dealers Act 2000. The main changes relevant to property transactions are: (i) Changes to the process for appointment of a real estate agent and consolidation of the appointment forms; (ii) Additions to the disclosure obligation of agents and property developers; (iii) Simplification of the process for commencing the cooling off period; (iv) Alteration of the common law position concerning when the parties are bound by a contract; (v) Removal of the requirement for a seller’s signature on the warning statement to be witnessed; (vi) Retrospective amendment of s 170 of the Body Corporate and Community Management Act 1997; (vii) Inclusion of a new power to allow inspectors to enter the place of business of a licensee or a marketeer without consent and without a warrant; and (viii) Inclusion of a new power for inspectors to require documents to be produced by marketeers. The majority of the amendments are effective from the date of assent, 24 April 2002, however, some of the amendments do not commence until a date fixed by proclamation. No proclamation has been made at the time of writing (2 May 2002). Where the amendments have not commenced this will be noted in the article. Before providing clients with advice, practitioners should carefully check proclamation details.

Property Agents and Motor Dealers Act : take two

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions commenced on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent, 21 September 2001.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Legislative change will impact on conveyancing

One of the more significant conveyancing decisions of 2005 was MNM Developments Pty Ltd v Gerrard [2005] QCA 230 (‘Gerrard’). Real estate agents, in particular, became concerned when the Court of Appeal raised grave doubts concerning the validity of a contract for the sale of residential property formed by the use of fax. As a result, the government acted quickly to introduce amendments to the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) and the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’). The relevant Act is the Liquor and Other Acts Amendment Act 2005 (Qld). These amendments commenced on 1 December 2005. In the second reading speech, the Minister stated that these amendments would provide certainty for sellers of residential properties or their agents when transmitting pre-contractual documents by facsimile and other electronic means. The accuracy of this prediction must be assessed in light of the errors that may occur.