1. Lee Wilson, Wilson Partners Law
Law-Geneering
Lee Wilson, Wilson Partners Law

2. Welcome all ‘bush lawyers’

3. 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.

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

5. 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.

6. 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

7. 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

8. 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’

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. Questions
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