The Importance of Sticking to the Letter of the Agreement

Contracting by Government can be a minefield, with the usual commercial considerations overlaid by expectations on Government to contract in good faith, be model litigants in the event of a dispute and achieve an outcome that meets it obligations to the public. In traversing that minefield, it can be tempting to only superficially deal with […]

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The duty of care of a public authority

A recent Queensland decision[1] raises the important issue as to when a pubic authority, in the exercise of its statutory powers, will owe a common law duty of care to the public. In 2012, a three-year old child was hit and fatally injured in the carpark area of a Hungry Jack’s restaurant complex.  The driver […]

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Human Rights Act passes Queensland Parliament

The Human Rights Act 2018, which will have far-reaching implications for public decision making in Queensland, passed Queensland Parliament on 27 February 2019.  What will it mean for public entities on commencement? As noted in our Public Law Tracker in December 2018, the HRA will directly impact the design and interpretation of legislation and, at […]

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Encryption access for government agencies

New Commonwealth laws, which can also be used by State police forces in some cases, allow law enforcement agencies greater potential access to encrypted information, highlighting both security and privacy considerations. As we come to rely more and more on technology, businesses and individuals need to be able to trust the security and privacy of […]

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Amendments to Commonwealth Whistleblower Protections

Changes to federal laws will significantly clarify and enhance whistleblower protections as well as require large companies to have formal whistleblower policies. The Federal Parliament recently passed the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 and it will now become law. The new laws primarily amend the current whistleblower protections found in the Corporations […]

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Termination for convenience clauses in government contracts

Termination for convenience clauses are commonly included in government contracts, sometimes thoughtfully but often reflexively.  Their reflexive use can be a form of security blanket that is rarely necessary and potentially risky. A termination for convenience (TFC) clause is a contractual escape hatch, giving the party with the benefit of the clause the right to […]

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Human rights at the forefront

On 31 October 2018, the Queensland Government introduced new human rights legislation into Parliament. Although not constituting a statutory bill of rights, the Human Rights Bill 2018 (Qld) (“the Bill“), if passed, will increase the focus of government, courts and tribunals on internationally recognised civil and political rights,[1] while providing modest new remedies for some […]

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Procedural fairness not readily ousted

Administrative decision makers are subject to a common law duty to accord procedural fairness for decisions which affect rights, interests and legitimate expectations, unless the governing statute clearly provides otherwise.[1] This is a subset of the broader principle of legality, that courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms unless […]

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Not all errors are equal

The nature of jurisdictional error has long confounded and confused. Not all errors of law are equal.  Some errors deprive decision makers of authority, others do not. Some errors may be reviewed; the review of others may validly be excluded. There is a distinction of principle between errors characterised as jurisdictional errors and errors characterised […]

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When is a decision subject to judicial review?

The Judicial Review Act 1991 (Qld) (JRA) provides an avenue for a person aggrieved by an administrative decision to seek judicial review. However, the right of a person to make an application for review of a decision[1] and the power of the Court to make orders[2] depend on the existence of ‘a decision to which […]

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Two wrongs don’t make a legal right

Equal treatment is a fundamental principle of justice. This is well understood in the abstract, but what it might mean in practice and how it might be enforced is less clear, as is demonstrated by an important recent UK decision[1] that will be monitored closely by Australian lawyers. The case As a result of cartel […]

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Personal Property Securities Act – Register or Regret

State and local governments have large asset portfolios and enter hundreds – if not thousands – of property dealings every year. The Personal Property Securities Act 2009 Cth (the Act) has critical implications for common property transactions. Government property owners: need to be alert to the real risk of losing title to goods if appropriate […]

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