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17 Jul 15
Judicial immunity in Land Court proceedings

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WHO SHOULD READ THIS

  • Resource companies developing projects or planning project expansions in Queensland.

THINGS YOU NEED TO KNOW

  • The State Development and Public Works Organisation and Other Legislation Amendment Bill 2015 (Qld), if passed, will reinstate community objection rights for mining projects and clarify that judicial immunity applies to Land Court members presiding over objections hearings, and other administrative matters.

WHAT YOU NEED TO DO

  • Resource companies and other stakeholders in Queensland should keep an eye out for the next opportunity to engage on the issues.

Anthony Lynham, Queensland’s Minister for State Development and Minister for Natural Resources and Mines, introduced the State Development and Public Works Organisation and Other Legislation Amendment Bill 2015 (Qld) into Parliament late on Wednesday. 

The Bill, if passed, will reinstate community objection rights for mining projects and clarify that judicial immunity applies to Land Court members presiding over these objections hearings, and other administrative matters.  This addresses concerns arising from the recent Queensland Supreme Court decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107 which cast some doubt over the scope of this immunity.

Background
The Queensland Supreme Court recently handed down its decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107.  That decision had the (likely unintended) consequence of causing delays in the progression of a number of mining approval matters currently before the Land Court of Queensland. 

The BHP decision considered whether disclosure under Chapter 7 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) was required in objections hearings referred to the Land Court under the Mineral Resources Act 1989 (Qld) (MRA) and Environmental Protection Act 1994 (Qld) (EPA).  His Honour Justice McMurdo held that Chapter 7 UCPR does not apply to the hearing of objections referred to the Land Court, because the relevant court rules allow the Land Court to apply the UCPR in relation to a ‘proceeding’, but that a hearing of objections was not a ‘proceeding’ in the Land Court Rules

Judicial immunity
The decision had wider implications for the Queensland resources industry as it raised concerns about whether the judicial immunity provided to Land Court members under the Land Court Act 2010 (Qld) (Land Court Act) extends to objections hearings, which are administrative in nature and not considered a ‘proceeding’ under the Rules.  The immunity granted to advocates and witnesses might have been questioned on the same basis.  This uncertainty effectively stalled a number of objections matters which would otherwise have progressed over the past few months.

Land Court Act Amendments
The Bill introduced on Wednesday (15 July) contains proposed amendments to section 35 of the Land Court Act to confirm that judicial immunity applies whether the Land Court Member is exercising a judicial power or performing an administrative function, such as objections hearings.  The proposed amendments also ensure that this immunity applies retrospectively. 

Importantly, the proposed amendments will not only encompass hearings in the Land Court relating to objections to mining leases and environmental authorities, but also ensure the immunity applies to Land Court matters relating to the determination of compensation to landholders for the grant of mining leases under the MRA.

Additional amendments to section 21 (Rules of the Land Court) will also enable the Land Court to make rules in relation to all functions and powers conferred to it.  This includes rules related to disclosure during both proceedings or when exercising an administrative function. 

Stakeholder engagement
The transitional provisions provide that the amendments may be modified by regulation, with any transitional regulation to expire after 12 months.  These provisions herald the desire for stakeholder engagement, including with the Land Court Members, over the ensuing months to assess the effectiveness of the amendments and any need for future amendments to the Land Court Act or Rules.  Stakeholders should keep an eye out for the next opportunity to engage on the issues.

Today (17 July) is the last Parliamentary sitting date for the month.  It is likely that Parliament will be seeking to ensure the Bill is passed before the end of today’s sitting to ensure objections matters can con continue expeditiously. 


Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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