2017-10-13 Special Meeting

SPECIAL MEETING AGENDA                                                            13 OCTOBER 2017


8.    Finance & Risk
8.1. Risk
Like any major project, there are risks associated with this proposal. The current project risk
register updated on 6 October 2017 is provided at Attachment 4 for Council’s consideration.
A summary of the key risks to be considered are outlined below.
8.1.1. State Government Electoral Cycle
Currently, one of the risks to delivering this project is the State Government election cycle. Special
arrangements apply in the period immediately before an election whereby the government
assumes a “caretaker role” from the time that the legislative assembly is dissolved, which ensures
that decisions are not taken that would bind an incoming government.
The basic caretaker conventions require a government to avoid implementing major policy
initiatives, making appointments of significance or entering into major contracts or undertakings
during the caretaker period. This project has been nearly 9 months in the making.
It is anticipated that the Premier could call a State election at any time over the next few months.
To maintain the momentum in progressing this project forward it is desirable to have the formal
MOU agreed between parties prior to the Premier announcing the election. Whilst this is not
imperative for the project to continue, it is a good way to expedite the process following the
upcoming election regardless of which party forms government. At this stage, it is probably not
possible to have formal transactional documents negotiated and signed by all parties prior to the
announcement of an election.
The Mayor and CEO have liaised with the current State Member of Noosa who has confirmed in
principle support for the project. The local Federal Member has also been briefed.
8.1.2. Tenure certainty
One of the initial concerns regarding this project was that due to the complexity of the current and
intended land tenure arrangements within the project area there was some uncertainty about the
mechanisms that Council could utilise to ensure that its funds invested in the project could assure
the desired outcomes. Essentially, there were initial concerns that Council (and NPA) might pay
significant funds for acquisition and rehabilitation without assurance that PLA would transition to
Conservation Park with Council as Trustee or that the Non PLA land would transition to National
Park.
One of the main reasons for this is that the transition of the project land (both PLA and Non PLA)
to protected status requires the State Government of the day to make an application to the
Governor in Council to dedicate the project area as a protected area under the Nature
Conservation Act 1992 (i.e. Conservation Park and National Park).
Pursuant to s30 of the Nature Conservation Act 1992, if an area that is to be dedicated as a
protected area is, or includes part of, a State forest or timber reserve set apart and declared under
the Forestry Act 1959, the regulation dedicating the area may revoke, in whole or part, the setting
apart and declaration of the State forest or timber reserve. It is important to note that the regulation
may be made only if the Legislative Assembly has, on a motion of which at least 28 days notice
has been given, passed a resolution requesting the Governor in Council to dedicate the area.
Given that the required mechanism for transitioning the project land to protected status would
require the State Government to exercise what is a discretionary power conferred on it by statue
(Nature Conservation Act 1992), pursuant to the principle of ‘unlawful fetter of discretionary power’,
the performance of that discretionary power could not be bound or legally enforced by any
contractual promise or commitment as to how a government will act at some time in the future.
This principle raised significant concerns for Council and legal advice has been obtained about
how we can mitigate this risk.
In order to address the issue of “unlawful fettering of discretion”, the State Government has
proposed that it will contribute all up front acquisition costs to be paid to HQP whilst Council and

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