Dealing with unique interests in Crown Land : a Queensland perspective

Security of tenure is the cornerstone of the land management system in Australia. Freehold title is protected throug indefeasibility of title entrenched in legislation and protection of registrable interests in land is offered through the Statutory Assurance Fund. For those with interests pertaining to Crown Land no such protection is offered, although this position is not uniform across Australia. Notably those with Crown leasehold interests or a profit a prendre on Crown Land in Queensland are not protected through registration on the freehold land register and do not have the benefit of indefeasibility of title. The issue of management of interests pertaining to Crown Land has become increasingly relevant due to the complexities associated with balancing public interests including native title with more commercial interests in land generated through carbon sequestration, forestry and mining. This paper considers the framework for the management of Crown Land in Queensland and the adequacy of this framework for commercial interests that pertain to Crown Land.

Non-pharmacological interventions in secondary schizophrenia

Schizophrenia may not be a single disease, but the result of a diverse set of related conditions. Modern neuroscience is beginning to reveal some of the genetic and environmental underpinnings of schizophrenia; however, an approach less well travelled is to examine the medical disorders that produce symptoms resembling schizophrenia. This book is the first major attempt to bring together the diseases that produce what has been termed 'secondary schizophrenia'. International experts from diverse backgrounds ask the questions: does this medical disorder, or drug, or condition cause psychosis? If yes, does it resemble schizophrenia? What mechanisms form the basis of this relationship? What implications does this understanding have for aetiology and treatment? The answers are a feast for clinicians and researchers of psychosis and schizophrenia. They mark the next step in trying to meet the most important challenge to modern neuroscience – understanding and conquering this most mysterious of human diseases.

Children of substance-using mothers : child health engagement and child protection outcomes

Aim: Maternal substance use has been associated with a range of child risk factors. The study investigated the relationship between engagement with child health services and child protection outcomes for children of substance using mothers. ----- ----- Methods: A sample of 119 children of mothers who disclosed opiate, amphetamine or methadone use during a maternity admission between 2000 and 2003, as included in a previous matched co-hort study1, were included in the current study. Statutory child protection agency and child health engagement information for the first two years of life, was obtained. The relationship between type of maternal substance use, child health engagement and child protection outcomes was examined. ----- ----- Results: Seventy two percent of study group infants were engaged with child health services during the first two years of life. Chi square analysis showed no significant relationship between child health engagement and child protection reports. Child health engagement was associated with decreased substantiated child protection notifications for children of methadone using mothers, but not for children of illicit substance users. ----- ----- Conclusions: Almost a quarter of identified children of substance using mothers are not accessing standard child health services in their first two years of life. This study provides support for increased attention to the provision of child health services for children of methadone using mothers. Further research into effective intervention strategies for children of illicit substance using mothers is indicated.

Valuation methods for resident funded retirement villages in Australia : a practitioner's perspective

Designed for independent living, retirement villages provide either detached or semi-detached residential dwellings with car parking and small private yards. Retirement village developments usually include a mix of independent living units (ILUs) and serviced apartments (SAs) with community facilities providing a shared congregational area for village activities and socialising. Retirement Village assets differ from traditional residential assets due to their operation in accordance with statutory legislation. In Australia, each State and Territory has its own Retirement Village Act and Regulations. In essence, the village operator provides the land and buildings to the residents who pay an amount on entry for the right of occupation. On departure from the units an agreed proportion of either the original purchase price or the sale price is paid to the outgoing resident. The market value of the operator’s interest in the Retirement Village is therefore based upon the estimated future income from Deferred Management Fees and Capital Gain upon roll-over receivable by the operator in accordance with the respective residency agreements. Given the lumpiness of these payments, there is general acceptance that the most appropriate approach to valuation is through Discounted Cash Flow (DCF) analysis. There is however inconsistency between valuers across Australia in how they undertake their DCF analysis, leading to differences in reported values and subsequent confusion among users of valuation services. To give guidance to valuers and enhance confidence from users of valuation services this paper investigates the five major elements of discounted cash flow methodology, namely cash flows, escalation factors, holding period, terminal value and discount rate. Whilst there is dissatisfaction with the financial structuring of the DMF in residency agreements, as long as there are future financial returns receivable by the Village owner/operator, then DCF will continue to be the most appropriate valuation methodology for resident funded retirement villages.

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).

Resident-funded retirement village valuations : complications with the application of the DCF

Retirement village assets are different from traditional residential assets due to their operation in accordance with statutory legislation. Designed for independent living, retirement villages provide either detached or semi-detached residential dwellings with car parking and small private yards with community facilities providing a shared congregational area for village activities and socialising. In essence, the village operator provides the land and buildings to the residents who pay an amount on entry for the right of occupation. On departure from the units an agreed proportion of either the original purchase price or the sale price is paid to the outgoing resident. As ongoing levies are typically offset by ongoing operational expenses the market value of the operator's interest in the retirement village is therefore predominantly based upon the estimated future income from deferred management fees and capital gain upon roll-over receivable by the operator in accordance with the respective residency agreements. Given the lumpiness of these payments, there is general acceptance that the most appropriate approach to valuation is through discounted cash flow (DCF) analysis. There is however inconsistency between valuers across Australia in how they undertake their DCF analysis, leading to differences in reported values and subsequent confusion among users of valuation services. To give guidance to valuers and enhance confidence from users of valuation services this paper investigates the five major elements of DCF methodology, namely cash flows, escalation factors, holding period, terminal value and discount rate.

Integrated Acquisition Engineering Model for acquiring heavy engineering assets

In asset intensive industries such as mining, oil & gas, utilities etc. most of the capital expenditure happens on acquiring engineering assets. Process of acquiring assets is called as “Procurement” or “Acquisition”. An asset procurement decision should be taken in consideration with the installation, commissioning, operational, maintenance and disposal needs of an asset or spare. However, such cross-functional collaboration and communication does not appear to happen between engineering, maintenance, warehousing and procurement functions in many asset intensive industries. Acquisition planning and execution are two distinct parts of asset acquisition process. Acquisition planning or procurement planning is responsible for determining exactly what is required to be purchased. It is important that an asset acquisition decision is the result of cross-functional decision making process. An acquisition decision leads to a formal purchase order. Most costly asset decisions occur even before they are acquired. Therefore, acquisition decision should be an outcome of an integrated planning & decision making process. Asset intensive organizations both, Government and non Government in Australia spent AUD 102.5 Billion on asset acquisition in year 2008-09. There is widespread evidence of many assets and spare not being used or utilized and in the end are written off. This clearly shows that many organizations end up buying assets or spares which were not required or non-conforming to the needs of user functions. It is due the fact that strategic and software driven procurement process do not consider all the requirements from various functions within the organization which contribute to the operation and maintenance of the asset over its life cycle. There is a lot of research done on how to implement an effective procurement process. There are numerous software solutions available for executing a procurement process. However, not much research is done on how to arrive at a cross functional procurement planning process. It is also important to link procurement planning process to procurement execution process. This research will discuss ““Acquisition Engineering Model” (AEM) framework, which aims at assisting acquisition decision making based on various criteria to satisfy cross-functional organizational requirements. Acquisition Engineering Model (AEM) will consider inputs from corporate asset management strategy, production management, maintenance management, warehousing, finance and HSE. Therefore, it is essential that the multi-criteria driven acquisition planning process is carried out and its output is fed to the asset acquisition (procurement execution) process. An effective procurement decision making framework to perform acquisition planning which considers various functional criteria will be discussed in this paper.

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.

Queensland requirements (old and new) for the appointment of a real estate agent

In Moneywood Pty Ltd v Salamon Nominees Pty Ltd 1 the High Court of Australia considered an appeal from the Queensland Court of Appeal in relation to the correct interpretation of s76 (1)(c) Auctioneers and Agents Act 1971 (Qld). In paraphrase, s76(1)(c) provides that a real estate agent shall not be entitled to sue for or recover any commission unless “the engagement or appointment to act as …..real estate agent ….. in respect of such transaction is in writing signed by the person to be charged with such…..commission…..or the person’s agent or representative” (“the statutory requirement”).

'Attaching' warning statements by facsimile transmission

Section 366(1) of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD’) provides that a relevant contract must have attached, as its first or top sheet, a statement in the approved form being a warning statement. Failure to comply with this statutory requirement entitles a purchaser to terminate the contract. The meaning to be attributed to the statutory reference to ‘attached’ will clearly be problematic where documentation is sent by way of facsimile transmission. This was the issue that arose for consideration by Newton DCJ in MNM Developments Pty Ltd v Gerrard [2005] QDC 10.

Amendments to the Land Title Act 1994 (Qld)

Wholesale amendments to the Land Title Act 1994 (Qld) were recently introduced with the passing of the Natural Resources and Other Legislation Amendment Act 2005 (Qld). The amendments were preceded by an extensive review of issues associated with the operation of the freehold land register and consultation with a number of stakeholders. The three articles that follow address different issues associated with these statutory amendments. The first article provides a brief overview of the amendments. The second article deals with particular amendments designed to combat mortgage fraud. In the third article, the question posed is whether further statutory amendment could better protect unregistered interests.

Mortgagee sale obligations tightened

The enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld), means that the obligations of a mortgagee exercising power of sale or a receiver selling have been substantially tightened in Queensland. Background As explained in the explanatory notes accompanying the legislation, with current global economic and financial circumstances, there were concerns about the position of mortgagors when mortgagees exercised their powers of sale. The objective of the amending legislation was to protect the interests of mortgagors by strengthening the statutory provisions relating to the duty of the mortgagee exercising power of sale to take reasonable care to ensure the property is sold at market value. The amending legislation was urgently passed without any consultation process.

Attach the correct warning statement

Practitioners will be aware that s 366 (1) of the Property Agents and Motor Dealers Act 2000 provides that a relevant contract must have attached, as its first or top sheet, a warning statement in the approved form. A failure to attach a warning statement in the prescribed manner triggers a right of termination in the buyer. The factual circumstances in Devine Ltd v Timbs [2004] QSC 24 are indicative of the problems that may arise in the construction of this statutory provision. The application concerned put and call option agreements entered into concerning 4 lots. The agreements, in identical terms, were signed before the applicant seller had completed a proposed residential apartment building. In each case the option agreement provided that the agreement was not binding on the seller until and unless the purchaser returned to the seller, amongst other things, two copies of the warning statement under the Property Agents and Motor Dealers Ac 2000 signed by the purchaser and two copies of the contract document signed by the purchaser. The seller was required to hold the contract documentation in escrow and was forbidden to sign it until and unless either option was exercised.

Bringing protection home : healing the schism between international obligations and national safeguards created by extraterritorial processing

Extraterritorial processing schemes are designed to prevent and deter access to statutory and judicial safeguards in the country responsible for the interception and transfer of asylum seekers to a third country. In line with this objective, they incorporate interdiction, transfer and processing practices and standards that are deliberately isolated from the national legal and institutional protections within either the intercepting state or the third country where processing occurs. Australia's recent disbandment of its extraterritorial processing centres in third countries highlights the fact that extraterritorial processing schemes have proven unworkable as a matter of international law, as they negate the national safeguards fundamental to the satisfaction of a state's protection obligations.

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.