The insertion of a special condition into a contract of sale for residential property can provide important safeguards for potential buyers from both a property law and criminal law view point. Creevey Russell Lawyers encourages individuals looking to purchase residential property to be aware of their rights and the ability to add special conditions to a standard contract of sale to protect their interests.
Our firm is increasingly seeing a special condition being inserted into residential contracts of sale, worded to the effect:
“That the contract is subject to and conditional upon the buyer obtaining a satisfactory drug test report on the property within X days from the date of the contract. In the event the report is not satisfactory to the buyer, then the buyer may terminate the contract.”
Solicitor, Rachel Greenslade, of Creevey Russell Lawyers says that inserting a special condition into a contract, such as the one outlined above, provides protections for individuals investing in the property market, in a similar way to how a building and pest condition operates.
A building and pest condition is a common clause in many residential contracts and allows a purchaser to terminate a contract of sale in the event they are not satisfied with the results of a building and pest report. At the time of signing a contract, a buyer who has limited experience with the construction industry is unlikely going to be aware of any issues potentially impacting on the property, such as the existence of termite damage or structural damage. A building and pest condition provides a safeguard for buyers by allowing experts to come and inspect the property and inform the potential buyer of any building and/or pest issues effecting the property. If the buyer has concerns following receipt of the report, the buyer usually has the right to terminate the contract.
An insertion of a special condition similar to the one outlined above provides a comparable safeguard to potential buyers, but relevant to drugs. The presence of drugs in a property can have an impact from both a property law and criminal law perspective.
From a property law perspective, the Residential Tenancies and Rooming Accommodation Act 2003 (Qld) requires landlords to ensure that leased property meets minimum prescribed housing conditions including the obligation to ensure that the property is clean, fit for the tenant to live in, is in good repair and does not impair the health and safety of persons using or entering the property. The presence of drugs can have a long term impact on health and wellbeing, and should a tenant suffer loss as a result of poor health due to the presence of meth contamination, the landlord may find themselves at the wrong end of a claim. The insertion of a special condition allowing a buyer to carry out a drug search can help an investor avoid the undesirable outcome of purchasing a property which is deemed unfit for habitation without considerable expense after settlement is complete.
From a criminal law perspective, the condition offers an important safeguard for occupiers of a property. Section 129 of the Drugs Misuse Act 1986 (QLD) effectively says that an individual who is an occupier of a property is expected to have knowledge and control of items located in those premises and proof that a dangerous drug was located in a place the person occupied is conclusive evidence of possession – this provision is referred to as “occupier’s liability”. Occupier’s liability extends the usual definition of “possession” and imposes a reverse onus on occupiers of a property. This reverse onus, in practical terms, means that once drugs are located on a property (usually following police executing a search warrant), the occupier is required to demonstrate that they did not know, or ought not to have known, about the presence of the illicit substance or thing located. This is different to the usual onus of proof in criminal law matters, where prosecution bears the relevant onus of proving an individual’s guilt. Occupier’s liability reverses the usual presumption of innocence in criminal law proceedings.
It is unusual that property law and criminal law proceedings overlap in this way, but Creevey Russell Lawyers encourages individuals looking to invest in residential property to be aware of their rights and to carry out thorough investigations in respect to a proposed purchase for investment purposes as failure to do so can have serious civil and criminal ramifications.
Should you require advice in respect of any property law matters, please contact Ms Rachel Greenslade on (07) 4617 8777. Should you require advice in respect of any criminal law matters, please contact Mr Trent Jones on (07) 3009 6555.
 

Trent Jones
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

Rachel Greenslade
Lawyer
Ph:   07 4617 8777
Email: [email protected]

Climate change protesters facing charges over activities such as gluing themselves to pedestrian crossings could come unstuck if they try to fight the charges using a defence of ‘extraordinary emergency’, says leading legal firm Creevey Russell Lawyers.
Creevey Russell Principal Dan Creevey said Section 25 of the Criminal Code Act 1899 (Qld) contains a defence of extraordinary emergency, which relates to acts done upon compulsion or provocation or in self-defence, where a person is not criminally responsible for an act or omission done or made under circumstances of sudden or extraordinary emergency.
Mr Creevey said with protest groups such as Extinction Rebellion seeking governments to declare a “climate emergency”, they have reportedly been considering the use of Section 25 when defending charges.
“While each individual matter is dependent on its own unique circumstances and is ultimately a matter for the court, we would be surprised if a section 25 defence was successfully relied upon by those charged as a result of their involvement in climate change protest activity,” he said.
“It would ultimately be a matter for a court to determine in the event the defence were to be raised, but we would anticipate that the actions of protesters would not be found to be consistent with how an ‘ordinary person’ exercising ‘ordinary powers of self-control’ may behave. The rationale for this is that there is no sudden situation that exists, and there are alternative avenues available.”
Creevey Russell Senior Associate Trent Jones said the defence of extraordinary emergency is usually raised in circumstances where an individual is confronted by a sudden situation, and they do not have the time or ability to process rationale thinking.
Mr Jones said in one case the Court of Appeal set aside a plea of guilty entered by an applicant who had been involved in a road rage incident and directed that a plea of not guilty be entered.
“The applicant was harassed and followed by occupants of the second vehicle for a period of approximately 11 kilometres, who were at times threatening and aggressive towards the applicant,” he said. “In the applicant’s attempt to drive away from the second vehicle, he ran a red light at an intersection at high speed, colliding with a third motorist who sustained significant injury. The applicant was subsequently charged with, and entered a plea of guilty to, one count of dangerous operation of a motor vehicle causing grievous bodily harm.
“But the Court of Appeal determined that the case raised the existence of a defence of extraordinary emergency and the sentencing judge ought to have refused the plea of guilty entered by the applicant and directed that a plea of not guilty be entered. This case is just one example of where the defence of extraordinary emergency was raised on the factual basis and evidence.”

Trent Jones
Senior Associate
Ph:   07 3009 6555
Email: [email protected]

First time an individual has been charged with inciting the obstruction of a Commonwealth official in relation to an ACCC investigation.
The Commonwealth Office of the Director of Public Prosecutions has, for the first time, charged an individual with inciting the obstruction of a Commonwealth official in relation to an ACCC investigation, in what is the first of its kind. The charges laid against Mr Ellis (former Manager of BlueScope) by the Commonwealth DPP are offences under the Criminal Code Act 1995 (Cth) that carry a maximum penalty of two years imprisonment per offence. Should the matter proceed to sentence, the sentencing regime attached to Commonwealth offences differs significantly to the regime attached to Queensland based offences. It will be interesting to see how this matter develops over the coming months.
Our criminal lawyers in Brisbane and Toowoomba are experts in defending criminal charges, whether they be Commonwealth offences or state based offences. In the instance you or those close to you require legal assistance in relation to crime and misconduct matters, do not hesitate to contact our crime and misconduct team leader, Trent Jones, on (07) 3009 6555.

Considering each partners’ contributions to the assets of a marriage or de facto relationship after separating is an important step of the family law property settlement process.
Contributions can be financial (such as income, or owning a property), non-financial (such as DIY renovations, or looking after the children), direct (made by a partner themselves) or indirect (for example, receiving a gift for the deposit to buy a house).
Assessing each partners’ contributions will have an effect on the division of the property pool of the relationship and, in general terms, greater contributions can mean a greater entitlement.
However, the Family Law Courts have repeatedly emphasised that each matter must be decided based on its particular facts and circumstances.
This means that there is no mathematical formula for making an assessment of contributions to a relationship. It is a common misconception that you will ‘take away what you put in’ during the relationship (in terms of money or assets) – which is not necessarily the case.
That being said, there are general principles which can be seen in the cases decided by the Family Law Courts which provide guidance as to how contributions will be assessed, and how the property of a relationship will be divided.
Firstly, the timing of when the contributions are made and the length of the relationship is very relevant.
Contributions will usually be treated differently when the relationship was short (under about 5 years) or long (over about 10 years). Contributions that are made at the beginning will also usually be treated differently than ones made near the end or after the relationship has ended.
The nature of the contribution can also be important. Some examples of when contributions will be most important are:

when one partner had more assets than the other at the start (for example owning a house or land);
when an asset goes significantly up in value (and whether that is because of the effort of the parties or purely because of market forces can be considered);
when there have been large gifts or inheritances;
when there has been a large lottery or gambling win; or
when there is a compensation payout of some kind to one partner (for example personal injuries or total and permanent disability (TPD) payments).

The Family Law Courts have also emphasised that financial contributions are not necessarily considered to be more important that non-financial contributions, in particular contributions as a homemaker or parent.
It is also important to remember that the assessment of contributions is only one step in the property settlement process, so even if one partner’s contributions are greater or lesser (or even if they are equal), an adjustment can still be made under the ‘future needs’ or ‘just and equitable’ steps in the process.
If you are going through a separation it is important to understand your rights and entitlements when you are trying to divide up your assets. In particular, getting specific legal advice about what weight might be attached to your contributions is crucial to make sure you receive your fair share.
To discuss further, contact Dannielle Glaister in our Family Law Team today on 07 3009 6555.

We adore our pets and often they are considered to be a part of the family.
So when a relationship ends, who ‘gets the pet’ can be a very important consideration.
If you agree about who gets the pet after separating
In a lot of cases, this issue can be resolved amicably and the parties can agree who will keep the pet, or sometimes parties will agree to ‘share custody’ or arrange regular visits with the pet.
Due to the time, money and stress that can be involved in going to court, it is best to try to reach an agreement about your pets either through direct negotiation, or through family dispute resolution services (such as a mediation).
If you can’t agree about who gets the pet
In some cases for a variety of reasons the parties just can’t reach an agreement about who gets to keep the pet, so they will need to make an application for the Family Law Courts to determine the matter.
All family law disputes are dealt with under the Family Law Act 1975 (Cth) (the ‘Act’).
As much as people may consider their pets to be a part of the family, the Act does not make any reference to pets or animals. The current legal position is that pets are categorised as ‘chattels’ – which simply means property.
So, if you need to ask the Family Law Courts to make orders in relation to pets, these orders will be made as part of a property settlement.
Whilst the Family Law Courts have the power to determine who can keep the pet, the Court does not make orders about ‘sharing custody’ or allowing ‘visitation’ of a pet. Despite being classed as property, pets are also generally not regarded as having a monetary value (unless there is a particular reason, for example for a pedigree dog).
In deciding who will keep the pet, in previous cases the Family Law Courts have considered things such as:

who has possession of the pet
who has cared for the pet (such as feeding, walking, washing etc.)
who purchased the pet and whether one person had the pet before the relationship started
whether the children (when applicable) have a particular attachment to the pet
who pays the vet and food bills, and whether the party has capacity to care for the pet and a suitable place for the pet to live.

The Family Law Courts have a wide discretion under the Act and can take into account any factors they deem fit.
Can we record our agreement about who would get the pet if we separate?
Because of the classification of pets as property, one measure which can be taken to prevent any future dispute about ‘who gets the pet’ is to enter in to a binding financial agreement (‘BFA’). The BFA can cover a range of financial matters, or can just deal with the pets – this is completely up to the parties.
A BFA can be made by parties to a de facto relationship or a marriage either before living together or getting married, at any time during the relationship, or after separation or divorce.
Should the laws about pets be changed?
There has also been debate about whether the law surrounding pets should be changed. Some animal rights activists argue that the treatment of animals as property is inappropriate given that pets have awareness and experience complex emotions.
In some jurisdictions overseas, the courts have adopted a ‘best interest’ test when deciding who gets the pet – meaning that they consider what is in the pet’s best interest. The ‘best interest’ test is the test used in Australia when deciding children’s matters. Despite some push for them to do so, Australian courts have been opposed to changing the treatment of pets under family law.
If this issue effects you or someone you know please contact Dannielle Glaister in our Family Law Team to discuss on 07 3009 6555.
 

The answer to this question is that even if an agreement about a property settlement is written down and signed (what is sometimes called an ‘informal agreement’), unless certain steps are followed, the informal agreement will not be binding.
An agreement can be made binding in two ways:

filing for consent orders in the Family Court; or
signing a binding financial agreement (‘BFA’) which complies with the Family Law Act 1975.

A consent order is an enforceable Court order that is made after a joint application by the parties, and a BFA is a type of contract, which is made privately without applying to the Court. Each has its own benefits and disadvantages, but both are equally binding.
Even in simple situations where there aren’t big sums of money involved (or even if there is only debt), it is important that a property settlement agreement is made binding.
So why is it so important?
Arguably the biggest benefit of a binding agreement is that it will bring finality to property settlement matters.
One of the biggest risks with having only an informal agreement is that if either party doesn’t follow it, the other person will have almost no rights to enforce it.
If the agreement isn’t binding, one party could change their mind or decide they ‘deserved more’. If this happens, the informal agreement cannot be used to stop it and a Court might impose something entirely different, not to mention the time and money you will spend going through the process (which will usually be more than what it would have cost to draw up a binding agreement).
The matter will also be decided based on the assets and liabilities at that time, as the property pool does not get backdated to the date of separation or the informal agreement. So, for example, if after separation you have saved up or received some money, whilst your ex has built up some credit card debt, then you might be left arguing about what should and shouldn’t be included in the property pool.
Preparing a binding agreement also gives parties the opportunity to get disclosure from each other so that each party knows what the financial position actually is and exactly what each person is getting out of the settlement.
Even if you and your ex separated on good terms and you feel confident that neither of you would go back on your agreement, sometimes there can be unintended issues.
The most common issues are forgetting to or not properly factoring something in (for example, forgetting to factor in capital gains tax or not removing one party’s name from something), or not releasing one party from a liability or personal guarantee (such as a mortgage, finance or credit card).
For example, say you agree that your ex keeps the car and takes over paying it off, but you aren’t properly released from the finance agreement or personal guarantee. Down the track the bank or finance company might come to you, and even though you don’t have the car anymore you might still be on the hook to pay. A binding agreement prepared by a lawyer would protect you in this kind of situation.
Formal agreements also have additional benefits including allowing for a superannuation split, certain transfer duty exemptions, and protecting your estate if one of you passes away. Consent orders can also deal with parenting arrangements if the parties also want to include them.
Seeing a lawyer to formalise your agreement will also give you the benefit of advice on exactly what your agreement means for you and your rights and obligations, and whether the agreement is within the range of what would be considered to be fair.
To discuss further, contact Dannielle Glaister in our Family Law Team today on 07 3009 6555.

From today, 1 October 2019, paper Certificates of Title will no longer have any legal effect and will not be required to be deposited with the Titles Registry when dealing with property. A paper Certificate of Title will simply now become an item of historic or sentimental value.  Any existing paper Certificate will not need to be destroyed or deposited with the Titles Registry, nor will they need to be dispensed with for a transaction to proceed.
If you hold a paper certificate of title as security for a debt you might consider registering a mortgage against a debtors property as a new form of security. You should seek further legal advice in relation to protecting your interests.
If you have any questions or concerns about these changes feel free to contact our Property team on (07) 4617 8777 or (07) 3009 6555.

Leading Queensland legal firm Creevey Russell Lawyers is proud to be a corporate supporter of the 2019 Longreach Cup, the biggest racing event in outback Queensland.
Creevey Russell Principal Dan Creevey said the big race day on Saturday, September 29, was an exciting event for the region and a great chance for a community that has endured tough times to enjoy country racing at its finest.
“Creevey Russell Lawyers is delighted to be involved as a sponsor of the Longreach Cup and we are looking forward to being present on the day and mixing with members of a wonderful community,” Winton-raised Mr Creevey said.
“We take great pride in the fact that Creevey Russell Lawyers is a rural and regional firm and we are always looking to give back to those communities.
“It is no secret that many of the state’s regional communities have been doing it tough for many years due to a wide range of economic and environmental factors.”
Mr Creevey said he maintained close regional ties having grown up in Winton where his father Noel was a local policeman and grandfather Jim Gaffney managed the power station.
“I go back home regularly and our firm has many clients in the region so it’s great to be able show our support on the big race day,” he said.
“It’s important to stay closely connected to the people in these communities and listen to their concerns, including about any legal issues they are experiencing which can include problems with vegetation and stock routes, dog baiting, rural transactions and criminal matters.
“Creevey Russell Lawyers has always had its finger on the pulse of rural Queensland and our agribusiness team members have broad experience in issues of concern to landholders.”

Criticism of a controversial ‘mistake of fact’ law in Queensland is misinformed and there needs to be greater community awareness about how the law operates, says leading legal firm Creevey Russell Lawyers.
Section 24 of the Criminal Code Act 1899 (Qld) contains the defence that a person is not criminally responsible for an act such as a sex offence if the person held an honest and reasonable, but mistaken, belief there was consent involved.
The Queensland government has called for the law to be reviewed by the Queensland Law Reform Commission, with a recommendation expected in early 2020.
Creevey Russell Principal Dan Creevey said the suggestion that the mistake of fact defence allows an offender to walk free in sexual offence type matters is “simply wrong”.
“Creevey Russell Lawyers believes the criticisms of the section 24 defence are misinformed and there needs to be greater community awareness as to how the law operates,” Mr Creevey said.
“The mere fact that the defence may be raised does not dictate that a jury will accept the defence is applicable in any given matter. That is because section 24 contains both a subjective and objective component. A  defendant cannot just raise section 24 and expect to be let off – juries apply their common sense, and the subjective component of the test provides that safeguard.”
Creevey Russell Senior Associate Trent Jones said subjectively, an accused person may hold an honest and mistaken belief regarding the existence of anything, such as the fact a person is consenting to sexual intercourse.
“Objectively, however, it is a matter – most commonly reserved for juries – to determine whether or not that mistaken belief held by a defendant was reasonable having regard to all the circumstances of a case,” he said.
“Trials involving sexual offences are most often run before a jury.  The role of a jury in a criminal trial is to determine whether or not an accused person is guilty or not guilty of the alleged offence. A jury reaches their verdict by adopting the role of the sole judge of the fact, receiving guidance and direction regarding the application of the law by the presiding judge.
“A mere mistake of a defendant is simply not enough to enliven a section 24 defence. For a section 24 defence to be successful, a jury must form the view that the honest, but mistaken, belief held by the defendant, in their particular circumstances, was held on reasonable grounds.
“The section 24 defence is not a matter whereby an accused person can simply state that they honestly believed a complainant was consenting and automatically expect to be acquitted. If that were the case, there would certainly be significant issues with the justice system, but that is not the way the section 24 defence is designed to operate.
“Juries have accepted the existence of a mistake of fact defence and acquitted accused people previously, but, similarly, there have been instances where juries have rejected a mistake of fact defence and convicted a defendant.”
 

Dan Creevey
Partner
Ph:   07 4617 8777
Email: *protected email*

Trent Jones
Senior Associate
Ph:   07 3009 6555
Email: *protected email*

Drug related offending has become increasingly prevalent in recent times. In 2017-18 illicit drug offences were the most common offence type totalling 78,167 offenders nationally[1].
Drug offences have been flooding the Magistrate and District Courts, leading to increased prison populations and a revolving door of recidivism.
Given this current national drug crisis, the court system has been required to adapt to the new challenges it faces by the overwhelmingly large amount of drug offences being heard each day.
To address these needs within the community, the government re-implemented the Drug and Alcohol Court in Brisbane in January 2018 to alleviate the high caseload pressure of the Brisbane Magistrates Court.
The Drug and Alcohol Court is now legislated under the Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Act 2017[2] (the Act) that was passed on October 2017. The Act[3] now enables a Drug and Alcohol Treatment Order to be included under Queensland’s sentencing regime.
Drug and Alcohol Court was trialled in Queensland in 2013, however was abolished by the Liberal National party to save costs. It was estimated that they saved $35.7 million dollars over a four-year period by scrapping the Queensland Drug and Alcohol Court and Murri Court. Since then both courts have re-established[4].
Magistrates refer eligible members of the community to the Drug and Alcohol Court where they are subject to Treatment Order requirements. This was implemented after a Drug and Specialist Court Review identified it to be “an evidence-based and cost-effective approach reflecting modern best-practice[5]”,
As Brisbane’s Drug and Alcohol Court is relatively new, it will take several years to clearly ascertain if there is a long term reduction in reoffending rates and drug offending trends processing through the court system.
The flow on effects of its implementation however can largely and quickly assist the wider community with crowding issues that our Queensland prisons are facing. Quantitative studies show a consistent trend with the number of people being held in custody on the rise[6]. This leads to less effective outcomes and lower chances of rehabilitation for the prisoners.
By sentencing eligible individuals to a Drug and Alcohol Court Treatment Order, it means they are not entering the prison system but are given an opportunity to rehabilitate in an evidence-based, intervention program that has been designed to reduce recidivism.
To be eligible for Drug and Alcohol Court an offender must be an adult, plead guilty to charges at a Magistrates court, live within the Brisbane district and have a substantial substance abuse issue. The drug and alcohol court staff complete a suitability assessment while the matter is adjourned if they are deemed eligible[7]. The treatment order can then begin which assists the individuals with rehabilitation, employment, mental health etc. to ultimately break the cycle of drug-related offending. The drug and alcohol court takes a holistic approach to rehabilitation focusing on several aspects of the person’s life.
The drug and alcohol epidemic is prevalent nationally, leading to other states enforcing more specific sentencing options to address this issue. Victoria and New South Wales have also included drug and alcohol courts into their sentencing systems.
The Brisbane Drug and Alcohol Court is run by a team of employees who manage the offenders while on their treatment orders. A number of staff are employed by Queensland Corrective Services who supervise them during this period. The team also includes legal representatives, Prosecutors and Department of Justice and Attorney General court officers. This multi-disciplinary team supports offenders once again taking a holistic approach to more than one aspect of their lives.
Queensland’s Drug and Alcohol Court is a space to watch with the ever-growing numbers of drug related offending. Long term, this court has the ability to have serious effects on the community and Queensland as a whole given its powers under the Act[8].
Creevey Russell Lawyers are experts in the area of crime and misconduct. With our dedicated team of experienced lawyers, we provide around the clock legal services for any criminal related matters. We represent clients in all jurisdictions from individuals, to companies and businesses.
Having an office in Brisbane Central allows our lawyers to access and utilise Brisbane’s Drug and Alcohol Court. Our lawyers have expert knowledge and extensive experience with regards to drug and alcohol related offending. For further information on the services provided by Creevey Russell Lawyers, please visit our website at www.creeveyrussell.com.au.
For more information regarding Brisbane’s Drug and Alcohol Court, visit https://www.courts.qld.gov.au/courts/drug-court.
[1] “4519.0 – Recorded Crime – Offenders, 2017-18”, Abs.Gov.Au (Webpage, 2019) .
[2] Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Act 2017.
[3] Ibid.
[4] Felicity Caldwell, “Four Years After It Was Scrapped, Drug Court Will Return To Queensland”, Brisbane Times (Webpage, 2019) <https://www.brisbanetimes.com.au/politics/queensland/four-years-after-it-was-scrapped-drug-court-will-return-to-queensland-20171024-p4ywmk.html>.
[5] Queensland Drug And Alcohol Court”, Courts.Qld.Gov.Au (Webpage, 2019) <https://www.courts.qld.gov.au/courts/drug-court>.
[6] Queensland Government, Annual Report 2017-2018 (Queensland Corrective Services, 2018) https://www.publications.qld.gov.au/dataset/e18fd278-6c07-4c63-bb0d-258948ccca71/resource/0397087a-5ea9-4c2e-82a1-625c137d3284/download/qcs-annual-report-2017-181.pdf 13.
[7] Queensland Drug And Alcohol Court”, Courts.Qld.Gov.Au (Webpage, 2019) <https://www.courts.qld.gov.au/courts/drug-court>.
[8] Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Act 2017.
Isabella King
Paralegal
Ph:   07 4617 8777
Email: *protected email*

From 1 October 2019, the Queensland Government will abolish Paper Certificates of Title.  The change in legislation was passed in parliament in March 2019 to amend the Land Titles Act 1994. The amendments mean that from 1 October 2019, paper Certificates of Title will no longer have any legal effect.
The electronic title held in the Titles Registry will be the sole record for the ownership and the recording of interest in land in Queensland.  The paper Certificate of Title will no longer be required to be presented at the Titles Registry when recording a transaction involving land.
However, in the past, the physical Certificate of Title was held as a form of security over a particular interest in land.  From 1 October 2019, unless there is a mortgage recorded on the title than the holding of a paper certificate of title as security will have no effect.
If you hold a paper certificate of title as security, then you should review this by 1 October 2019.  You might need to register a mortgage or arrange a security interest and/or personal guarantees.
Please contact our commercial team here at Creevey Russell Lawyers to discuss your options to protect your interests.

If you are a landholder of land with underground resources such as coal, minerals, petroleum, or coal seam gas present on it you may be lucky (or unlucky enough) to be approached by a resource company (such as Origin Energy or QGC) (tenement holder) who wants to gain access to your land to extract these resources in return for compensation to enter into a conduct and compensation agreement.
WHAT IS A CONDUCT AND COMPENSATION AGREEMENT?
A conduct and compensation agreement is an agreement which sets out the activities that will be undertaken on your land, the compensation you will receive for the losses you suffer as a result of those activities (as required under the relevant legislation), and the terms and conditions that will govern the tenement holder’s access to your property and the manner in which they carry out their activities.
Under the relevant legislation tenement holders are required to enter into a conduct and compensation agreements with the landholder before accessing their property. The access terms and conditions and compensation terms that are covered in the conduct and compensation agreement are governed by the legislation, any environmental authorities issued in relation to the activities and the land access code.
As part of the land access negotiation process tenement holders will provide you with their standard form conduct and compensation agreement.
WHAT DO LANDHOLDERS NEED TO BE AWARE OF?
Although the tenement holder will tell you that this is their ‘standard document’ there are some important things to note:

Firstly, the document provided by the tenement holders will almost certainly be weighted in their favour. These conduct and compensation agreements can last anywhere between 30 days and 30 years and, as they attach to your land title they will bind future owners of the land so it is crucial that they are thoroughly reviewed before you sign them by a solicitor with experience in negotiating agreements of this nature. It is important that you are provided with advice making you fully aware of your obligations under the agreement during its term.
Secondly, the document as originally proposed is not property, business or lifestyle specific and should be reviewed and amended to reflect your specific needs and requirements. Many landholders are not aware that conditions can be drafted into the agreement addressing issues such as water, specific access conditions or specific land management practices that reflect your personal and business needs.

WHAT TERMS AND CONDITIONS TO WATCH OUT FOR?
It is important that you fully understand you rights and obligations under the conduct and compensation agreement as it will govern the conduct of the parties for the years to come. There are a number of conditions in a conduct and compensation agreement that you should be aware of and fully understand before executing your conduct and compensation agreement.

Waiver of entry notice – The Mineral and Energy Resources (Common Provisions) Act 2014 (the Act) requires tenement holders to provide landholders with at least ten (10) business days’ notice prior to entering their property for a continuous period of time (i.e. to undertake a particular activity that is part of their programme which may take 3-5 consecutive business days). Tenement Holders often include a ‘waiver of entry notice’ within their draft conduct and compensation agreements meaning they are then no longer required to comply with the statutory notice requirement within the Act. It is possible to agree to include a similar provision but to nominate an alternative entry notice timeframe that is more convenient to both parties (say five (5) business days).
Alternative arrangement for noise – Tenement holders must comply with their environmental authority (this an authority granted by the government for environmentally relevant activities, which resource activities are). When undertaking the activities under a conduct and compensation agreement. You may have rights to take action against the tenement holder if the noise impacts caused by their activities exceed what is authorised under their environmental authority.

Tenement Holders include ‘alternative arrangements for noise’ within their conduct and compensation agreements whereby landholders are required to acknowledge that they are already being compensated for the noise impacts and they relinquish their rights to make any further claim in respect of these impacts. Although this is now considered a standard provision of a conduct and compensation agreement it is important that you fully understand what rights you have and what rights the tenement holder has with respect to noise impacts – your solicitor will explain this to you when providing their advice.

Access generally – The draft conduct and compensation agreement presented by tenement holders may allow them to access your property on any day, at any time, using any access track they deem necessary. This can make it extremely difficult and stressful for you to continue to operate your business or enjoy your property as you could be unaware of who is on your property at any time. It is important therefore to set reasonable parameters to this right of access as set out below.

Broadly drafted, unclear or heavily biased conditions can result in disputes and poor working relationships between landholders and tenement holders. It is therefore important that clauses are carefully and accurately drafted to reflect each parties’ concerns in order to ensure a smooth and painless co-existence on your land in the future.
WHAT ELSE SHOULD YOU CONSIDER?
There are a number of matters/clauses which landholders often do not consider, or they are simply not aware that they are able to negotiate into conduct and compensation agreements. Some key terms and conditions that can be negotiated by your solicitor on your behalf may include:

Better access terms – your conduct and compensation agreement can include restrictions on when, where and how a tenement holder can access your property. For example you may permit them only to access your property on business days only, between the hours of 9:00am and 5:00pm via pre-agreed access tracks. Inclusion of a provision such as this will give you certainty as to who is on your property and when.
Exclusion Zones – you may wish to include exclusion zones around various locations on your property. For example, landholders with families and young children may wish to prohibit access within a certain radius from their homestead.
Business activities – clauses can be included in your conduct and compensation agreement to mitigate the impacts a tenement holder’s activities may have on your business operations and to ensure you are being compensated for any additional costs incurred by you due to their activities. For example, terms can be negotiated around the de-stocking of livestock during certain phases of the tenement holder’s activities to avoid injury to livestock while heavy vehicles and machinery are accessing the property. Alternatively, you may require temporary stock proof fencing to be installed during these phases (at the cost of the tenement holder).
Weeds and pathogens – we find that one of our client’s biggest concerns is the risk of declared weeds and/or pathogens being introduced to properties by tenement holders traversing between neighbouring properties and/or not complying with wash-down procedures. Clauses need to be included in conduct and compensation agreements allowing landholders to inspect vehicles proposing to enter a property and giving landholders the right to refuse access if they reasonably believe a vehicle contains traces of declared weeds.

These are just some examples of the types of clauses that can be included in your conduct and compensation agreement to provide further protections for your land, business and family.
Successful negotiations of a conduct and compensation agreement require an in depth understanding of your property, your business and your requirements. These unique features can be negotiated on your behalf to ensure that your needs, wants and concerns are represented in the final agreement. The good news is that tenement holders are required under the Act to pay your reasonably and necessarily incurred legal costs so that you are not out of pocket for the costs of your solicitor reviewing, advising on and negotiating a conduct and compensation agreement on your behalf.
If you require any assistance with negotiating your conduct and compensation agreement or with any other commercial legal issue, please do not hesitate to contact our dedicated commercial team.

Helen Kay
Partner
Ph:   07 3009 6555
Email: *protected email*

Tessa Knight
Lawyer
Ph:   07 4617 8777
Email: *protected email*

It is an unfortunate truth, but when it comes to Australian farmers, extreme weather conditions are a harbinger of tough economic times.  As a firm proud to represent regional Queensland, it is always a sobering experience to have to advise a fifth-generation farmer on insolvency problems and the end of the family business.
Like many other States, Queensland has recognised the great wealth tied up in the regions, and the peaks and troughs that the climate can present to industries heavily reliant on near perfect weather conditions – enter the Farm Business Debt Mediation Act 2017 (Qld).
This Act sets up a program to force, wherever possible, disputes between the banks and farmers into alternative dispute resolution.  This opportunity to mediate is important and revolutionary, as it forces the banks to face up (literally, face to face across a mediation table) to the human cost of their decision making on enforcement of farm debt loans.
In this article, we will look at some of the basic features of the scheme and how it all works in practice.

What is Farm Debt?
Farm debt (or, as it is called in the Act, farm business debt) is a loan that is taken out by a farmer for the purpose of running a farm, and where that loan is secured over the farm (typically by way of a mortgage).
As to what is included in the definition of running a farm, the net is cast wide: any agricultural, apicultural, dairy farming, horticultural, land-based aquacultural, pastoral, poultry keeping, viticultural or any other business that includes cultivating the soil, gathering crops or rearing livestock (this includes timber cutting).
In addition, the farm property that the debt can be secured against is reasonably wide-ranging: land on which the farm is run, any water allocation under the Water Act 2000 (Qld) that is used to run the farm or any vehicle, machine, tool or other equipment that is used to run the farm.

Does the Bank have to Mediate?
The Act applies unless the farmer is bankrupt, has had a creditors petition (the first step of making someone bankrupt) presented against them by someone other than the Bank, or is an “externally-administered body corporate” under the Corporations Act 2001 (Cth).  Also, if you have resolved the dispute at mediation previously, then you can’t go back to mediation if you default on the resolution (in other words, if you go to mediation, settle with the Bank and then don’t carry out your side of the deal, then you don’t get a second go).
Otherwise, if the Act applies, then the Bank cannot enforce the mortgage without mediating, or seeking the permission of the Queensland Rural and Industry Development Authority (QRIDA).
The first step a Bank has to take under the Act is to give the farmer an enforcement action notice.  This notice tells the farmer what the Bank is proposing to do, and gives the farmer an opportunity to ask for mediation – the time in which the farmer might ask for mediation must not be less than 20 business days after the farmer receives the enforcement action notice.
Once the farmer asks for mediation (called a request for mediation notice), the Bank has the opportunity to agree to, or refuse, mediation.
If the Bank agrees to mediation, the farmer has the right to request documents from the Bank related to the debt – these documents must be provided within 30 days of being requested.
At the same time, the farmer must give to the bank: the most recent Tax Return lodged with / prepared for the Australian Taxation Office; a listing of the farmer’s assets and liabilities; and the farmer’s cash flow projections for the coming year.
If either the Bank or the farmer refuses to, or fails to, provide the documents that are requested/required to be disclosed, that party has failed to undertake mediation in good faith.
QRIDA maintains a list of approved mediators for the parties to choose from – that list can be accessed at http://www.qrida.qld.gov.au/fbdm/finding-a-mediator.
Once the documents are exchanged and the mediator is appointed, then the mediation can proceed.
If agreement is reached at mediation, then the mediator will assist the parties to prepare a heads of agreement, which details what the outcome is, and what party is responsible for bringing it about.  The heads of agreement is subject to a cooling off period of ten business days (or a longer/shorter period if the parties agree), where the farmer can pull out of the deal – if the farmer withdraws, then the bank is entitled to compensation for any steps that they had already undertaken under the agreement.
After mediation ends, the mediator has to give the parties a summary of the mediation, which, as it suggests, summarises what happened at mediation.  This must be given within ten (10) business days of mediation finishing.
It is important that the parties remember that whatever happens at, or is said at, mediation is confidential – meaning it cannot be used in Court.

What happens if the Bank refuses?
If the Bank refuses to mediate, then one (1) of two (2) things can happen:  either the Bank can apply to QRIDA for exemption from mediation before enforcing their security, or the farmer can apply to QRIDA to stop enforcement for a period of six (6) months.
QRIDA’s decision is reviewable, and the application must be made to the Chief Executive of QRIDA within 20 business days of notice of the decision being given.
Curiously, notwithstanding that the Act provides that the decision must comply with the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Act does not provide for review of decisions by farmers or Banks to the Tribunal.  The Supreme Court has recently held that decisions of QRIDA are susceptible to judicial review (see Scriven v Queensland Rural and Industry Development Authority [2019] QSC 176), however it must be kept firmly in mind the difference between judicial review in the Supreme Court, and review before the Tribunal – the Supreme Court does not look to the merits of the decision, merely the process by which the decision was reached.  If the decision is wrong not because the decision maker made a misstep, then the Court cannot set the decision aside, not matter how wrong on the facts it is.

How much does it cost?
Each party is responsible for their own costs of mediating, and half of the costs of the mediator.  Of the (at the time of writing) 26 registered mediators, the average hourly rate is $370 plus GST, with the average daily rate being $3,000 plus GST.  That would mean that each party would be responsible for $185 plus GST per hour, or $1,500 plus GST per day.
As to what each party’s individual costs would be, that would depend on what assistance they required from their professional advisors as to the mediation.

What can I do to protect myself?
Experience tells us that there are two things that typically bring people unstuck in these situations:  putting their head in the sand, or not keeping their financial/taxation affairs in order.
Bad news does not improve with time – that is a fact.  The sooner you recognise that you are perhaps heading towards trouble with the bank, it is important that you take early advice from a solicitor and an accountant.  Perhaps that way, the problem can be avoided before it arises.
As we said above, there are certain obligations on farmers applying for protection under the Act, including the disclosure of current financial documents.  If you do not have these ready to go, it can easily prejudice your ability to protect yourself.
If you would like to discuss how the Act might assist you, or issues you are having with your financier more generally, you should contact our Dispute Resolution Team on 07 3009 6555 or 07 4617 8777.
 

Josh Mountford
Associate
Ph:       +61 7 3009 6555
Email:    *protected email*

Domestic violence is one of the most topical legal issues in society.
Magistrates in Queensland deal with tens of thousands of applications in any given year. The nature of one application differs to the next – some applications seek basic protection for an aggrieved person, whilst others seek a range of different conditions to protect not only the aggrieved, but named persons as well.
What, however, happens, once an application is made? What options are available to a respondent to deal with the application?
There are a number of different options available to an individual responding to proceedings – what follows is not an exhaustive list.
Firstly, a respondent has the right to progress the matter towards a hearing and have a Magistrate determine whether or not it is necessary and desirable for an order to be made on a final basis. This option often incurs significant time and cost, and it may not be a viable option for a respondent even though they dispute the nature of the allegations leveled against them.
A further option available to the respondent is to consent to an order on a without admissions basis. There may be some negotiation between the parties as to what conditions are contained on an order, but proceeding in this manner can often result in a matter being resolved in a more timely and cost effective way. Although there is no finding of fact, as such, the consequence of consenting to an order can impact on a respondent. For example, if a respondent is the holder of a weapon’s licence, they are unable to continue being the holder of a weapon’s licence as a result of the order made. Further, there would be an order of a court, and this could be used adversely against an individual in other proceedings, such as family law matters. Whilst resolving the matter by consenting to an order on a without admissions basis is a tool often used, it is not appropriate in every instance.
So what happens to those who want to resolve the matter in another way, but do not necessary want to incur the time and expense associated with progressing the matter towards a hearing? Well, other than making a successful application to have the matter struck out, a respondent may be able to resolve the matter by entering into an undertaking.
Resolving the matter by way of an undertaking, however, is not always simple. In order for an undertaking to be entered into, both the applicant and respondent need to agree to the matter being resolved on that basis. There are practical difficulties associated with this in circumstances where an applicant/aggrieved and respondent do not get along.
An undertaking is, in simple terms, an agreement (in all almost all instances evidenced in writing) between the parties for the respondent to do, or not do, certain things. It is an informal agreement signed by the respondent. They can often be hand-written, which reflects the informal nature of the undertaking.
A copy of the undertaking may be placed on the court file, however, it does not constitute an order of the court. Instead, proceedings are withdrawn, matters are discontinued, and there is no order from a Magistrate outlining conditions the respondent must adhere to.
Given that there is no formal order of a court, what happens when an undertaking is breached?
As stated above, an undertaking is not a formal order of the court. A respondent who breaches a condition of a protection order made by a court can be dealt with in the criminal courts for breaching such order, but the same does not apply to those who breach the terms of the undertaking.
Should a respondent breach an undertaking, they do not get charged with breaching an undertaking. No such charge exists. There may be other consequences of their behavior (such as if they assault the aggrieved, they may be charged by the Queensland Police Service with an assault type charge), however, they will not be charged with contravention of an order.
Instead, the only recourse available to an aggrieved person is to make a further application for a domestic violence protection order. Whilst an individual is not charged with breaching an undertaking, evidence of a breach is likely going to give strong grounds to support a finding that it is necessary and desirable for an order to be made upon a further application to the court.
It is important that both applicants and respondents receive detailed legal advice regarding the impact an undertaking may have on domestic violence proceedings prior to agreeing to finalise matters on this basis. Undertakings are just one avenue available to resolve domestic violence applications, however, they are not appropriate to be used in every case. Each case needs to be assessed on its own merit, and there may be additional factors present as to why an undertaking is, or is not, a good way of resolving domestic violence proceedings.
Creevey Russell Lawyers have a dedicated team representing both applicants and respondents in domestic violence proceedings. We are happy to take enquiries regarding our domestic violence services at any time.

Trent Jones
Senior Associate
Ph:       +61 7 3009 6555
Email:    *protected email*

Primary producers and small business owners impacted by the monsoon trough disaster in North West Queensland earlier this year have been urged to take up grants and assistance packages now being provided by the Queensland and federal governments.
Creevey Russell Lawyers Partner Helen Kay said the firm can offer help and advice about eligibility to those wishing to apply for the government support packages.
“Small businesses who suffered damage from the heavy rainfall and major flooding between 25 January, 2019, and 14 February, 2019, are now being provided assistance,” Ms Kay said.
“The Queensland government has recently implemented a grant allowing for small businesses to gain funding of up to $10,000 to allow them to get back on their feet. The funding may be used to engage business consultants, mentors, coaches or an advisory service to assist those impacted by the natural disaster. These industry experts can advise on how to  rebuild and expand.
“The grant is offered as a one-time payment that can be used to make business plans, train staff, obtain mentoring, get financial counselling and explore options for sustainability.”
Creevey Russell Lawyers regularly represents primary producers and small businesses dealing with various issues.
 

Helen Kay
PartnerPh:       +61 7 3009 6555
Email:    *protected email*

Leading Queensland legal firm Creevey Russell Lawyers has boosted its personal law team with the appointment of lawyer Dannielle Glaister.
Creevey Russell Principal Clare Creevey said Ms Glaister has moved to Queensland from South Australia where she had been working for a successful boutique law firm in the Adelaide CBD.
“Dannielle was admitted as a solicitor in 2017 and she primarily practices in family law, including property settlement litigation, as well as complex child custody and parenting matters, divorce applications and child support matters,” Ms Creevey said.
“Dannielle also has had experience assisting with a number of criminal, commercial, estate planning and conveyancing matters and applies her experience with an empathetic, practical and no nonsense approach. We are very much looking forward to Dannielle’s contribution to Creevey Russell Lawyers.”
Born in Adelaide but raised in Perth, Ms Glaister completed her Bachelor of Laws  at Curtin University and her Graduate Diploma of Legal Practice at the College of Law South Australia. She is a member of the Queensland Law Society and the Family Law Practitioners’ Association of Queensland.
“I am very excited about the opportunity to join Creevey Russell Lawyers in their Brisbane office and I am looking forward to working with the personal law team to achieve successful outcomes for our highly-valued clients,” Ms Glaister said.

Motorists in Queensland now face tougher conditions if they obtain a special hardship order to continue driving while suspended, says legal firm Creevey Russell Lawyers.
A special hardship court order allows (in certain instances) a driver with a suspended provisional or open licence to continue driving under strict conditions for work or personal issues if being denied the ability to do so would cause hardship to them or their family.
Creevey Russell Principal Dan Creevey said as of July 1, 2019, the law in respect to special hardship licences has been amended with potentially harsher consequences for affected motorists.
“While the previous law allowed motorists subject to a special hardship licence to have a minor infringement, the new law means that any accumulation of demerit points while subject to the restricted licence will result in an automatic disqualification period, which is twice the length of the initial period of disqualification,” he said.
Creevey Russell Senior Associate Trent Jones said special hardship applications can be made following the accumulation of too many demerit points and a driver accumulating further points during a good behaviour period, or following a high-range speeding offence
“Applicants need to be able to demonstrate that a disqualification of their licence would cause them, or their family, hardship,” he said.
“Those reasons may include medical reasons, such as an individual being a carer for a spouse or family member who is heavily dependent on them, or it may include financial reasons, such as impacting on their employment.
“There are time limitations associated with making applications for a restricted licence and generally, the courts will consider imposing certain restrictions in the event a restricted licence is granted. The consequences of these restrictions can occasionally result in an individual being impacted in a greater way than what they would have otherwise been impacted had they accepted the initial disqualification period.”

We have identified an apparent gap in Post-Hayne Report Reforms.
As part of the Hayne Report Reforms, changes are to be made to the jurisdiction of the Australian Financial Complaints Authority (AFCA) from 1 July 2019 to extend the normal 6-year limitation period to commence litigation by permitting AFCA to deal with matters arising after 1 January 2008.
This extension in the jurisdiction of AFCA is however limited to Credit Facilities not exceeding $5m.
We have raised this matter with the Department of Treasury which is dealing with this area of Post-Hayne Reforms and they have advised that they are considering whether and how they will deal with this gap.
Our view is that, as a matter of common sense, it would be inconsistent to not implement an extension of the normal 6-year limitation period similar to the extensions of time in relation to Credit Facilities under $5m under the AFCA.
Aggrieved businesses and farmers with facilities over $5m are likely to have suffered greater losses. They may well now be in a worse financial position than parties with Credit Facilities under $5m who are able to seek compensation through AFCA.  It would appear to be inconsistent and inequitable to not provide a similar extension to these businesses and farmers.  Additionally, these parties would need to fund their own actions so that there would be no cost to Government.
We think this matter needs to be raised with politicians by aggrieved farmers and on their behalf by bodies such as the National Farmers Federation (NFF) to ensure this unfair and unjust gap is closed.  We have notified the NFF of this issue of concern.

The Palaszczuk Government is being heavy handed with Queensland farmers over the application of its Vegetation Management Laws and often seeking land as compensation for alleged tree clearing breaches, says a leading legal firm.
Creevey Russell Lawyers Principal Dan Creevey said the firm had found cases where the Department of Natural Resources had taken an uncompromising approach to individuals found in breach of the legislation, with prosecutions and restoration notices imposed when there were opportunities to negotiate alternative outcomes.
The Vegetation Management Act 1999 (Qld) has been the subject of much debate, following amendments made by the State Government in 2018,” Mr Creevey said.
“When restoration notices are issued for alleged tree clearing offences, they can have serious and long-lasting impact on a farmer’s rights. There needs to be greater assistance given to farmers to help them comply with their obligations.
“In recent times, our office has observed the department taking a strict approach against those who have breached the Act by clearing land they were not authorised to do so. In circumstances where it may be possible to negotiate an alternative outcome, the department is taking a strict approach in terms of what it will and will not discuss, often seeking a significantly larger amount of land by way of compensation in instances of a land exchange.”
Mr Creevey said farmers were strongly advised to obtain legal advice on land clearing matters.
“The consequences of not understanding your obligations can have significant financial impacts, as well as significant impacts on your ability to use your property,” he said.
Mr Creevey said the constant changes to government legislation and policy makes it increasingly difficult for farmers to apply their trade and also be aware of the changes.
“Whilst ignorance of the law is not an excuse, the constant changes to the relevant legislation, regulations, and policy makes it increasingly difficult for farmers to know what they are and are not entitled to do with their properties,” he said.
“Queensland families need farmers. Whether or not their product is cattle, crops, or something else, farmers want to get the maximum benefit from the land they own. Government should be aware that farmers work very long hours. They often do not have the time to sit at a computer and research the constant changes to the legislation to identify what they can and cannot do on their property.”

Special Council Helen Kay has accepted a position as a Partner with Creevey Russell Lawyers, with the leading Queensland legal firm’s partnership ranks now 50 per cent female.
A highly experienced senior commercial and property lawyer, Ms Kay joined the firm as a Special Counsel in January this year and has moved into partnership alongside Co-Principals Dan Creevey and Clare Creevey and accredited specialist personal injuries lawyer Tom Rynders.
Dan Creevey said Ms Kay accepting the partnership with the firm was an exciting development for Creevey Russell Lawyers, which this year is celebrating its 10th anniversary.
“Helen has been a tremendous asset for the firm since she came to Creevey Russell after working within top tier firms in the United Kingdom and Australia as well as running her own legal practice and heading up various other successful commercial practices,” he said.
“Creevey Russell has benefited from Helen’s experience in corporate and commercial matters including business sales and acquisitions, leasing, franchising, corporate structuring and commercial property transactions. Helen is passionate about working closely with her clients to understand their business and help them to achieve their strategic goals.”
Clare Creevey said the firm was proud and delighted that 50 per cent of its partners were women.
“It’s very exciting to have Helen become a Partner with Creevey Russell Lawyers as she has already brought so much to the firm,” Ms Creevey said.
“It’s also a proud milestone for the firm to have women as 50 per cent of our equity partners. We have been committed to building a gender equal firm, and addressing economic inequality for women is an important issue for the legal community.”
Ms Kay said she was excited about the opportunity to be a Partner with Creevey Russell Lawyers.
“Creevey Russell is a forward thinking law firm which offers its clients exceptional service across all areas of the law,” she said.