Lee Wilson, Wilson Partners Law Law-Geneering Lee Wilson, Wilson Partners Law

Welcome all ‘bush lawyers’

Project management and the law Complying with the law costs money and takes time The law is both for and against us Grattan Institute Report recommends (#4) says: When the estimated construction cost to a jurisdiction is $1 billion or more, Commonwealth, state or territory governments should be required to introduce standalone legislation for that transport infrastructure.

Law-geneering defined The art [science] of managing legal issues within projects or programs

What is the law? There are over 5,200 statutory obligations applying to projects in Queensland Plus common law. Plus equity. Plus policy. Plus, plus plus.

How do we manage it? Risk management standard AS/NZS ISO 31000:2009 Financial Accountability Act 2009 and the Financial and Performance Management Standard 2009 Project Assessment Framework requires assessment of: Legislative approval issues Regulatory issues Whole-of-government policy WBS implements it another way

Project risk points – time relevant Different degree of risk assessment at each project phase Evaluation: Lower risk, but well managed, will ensure better advice moving forward Business case: For the consideration of legislative approval issues, the Project Assessment Framework (Business Case) says at 2.4.4: Each project option should be assessed to identify any relevant legislative requirements. Going into procurement is your ‘make or break’ time for the law PAF guidance documents talk generally about general environmental compliance, development permits, cultural heritage and native title as the scope. WBS guides say Environmental Management, Native Title and Cultural Heritage

Making sense of the mess Modelling shows statutory obligations can be grouped by: Subject matter regulated (36 types) and Type of obligation (13 types). Limiting our self to 4 areas of focus (as per PAF) vs 36 areas of regulation, means there is a large ‘unknown unknown’

Major areas of regulation Biodiversity loss Land use and planning General environmental management Coastal and marine Cultural heritage & heritage generally Indigenous land tenures, native title etc Building & construction works generally Health, safety Natural disasters Natural resources Pest management Royalties, fees and taxes Waste Tenures Climate change and energy Records, confidentiality and reporting Professions regulation, including surveying and valuation Transport

Types of legal obligations Authorised officer Compliance (no permit) Confidential information Court triggered requirement Executive officer Exemption Permit procedure Permit trigger Record keeping Regulator triggered process Reporting (external) Reporting (internal) Royalty, fee or tax

Government policy does not say Management of regulatory fees Management of administrative steps, such as environmental assessments etc Management of how the law affects design Management of how the law affects layout Management of how the law affects construction methodology Management of how the law affects contract documents

Example 1 – Biodiversity (Culvert) Loss of biodiversity | Compliance obligation (no permit) “Contractor to consider in Design, CMP and EMP(c)”. Allocate / transfer / retain? WBS Project Plan / Construction Plan Design brief Tender

Example 2 - Coastal (stormwater outlet) Impacts on coastal environs| Compliance obligation (no permit) “Contractor to consider in Design, CMP and EMP(c). Allocate / transfer / retain? WBS Project Plan / Construction Plan Design brief Tender

Now that the process is defined – what’s the Law-geneering method? Step 1 (evaluation) Preliminary assessment and business case Define law and whether it applies (evaluation) and how it applies Step 2 (advice) Business case Allocate risk within project team at relevant time in project timeline (use WBS, Design Brief, Project Plan, Construction Program, Tender) Step 3 (assess and decide) Project plan Assess risk and make decisions about risk management (allocate, reduce, transfer or accept) Step 4 (implement) Procurement and implementation For retained risks, review implementation as part of tender and construction method

Questions ???