SCRUTINY OF LEGISLATION COMMITTEE · 2015-11-19 · Ms Tamara Vitale, Executive Assistant Scrutiny of Legislation Committee Level 6, Parliamentary Annexe Alice Street Brisbane Qld

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled 30 October 2007

Issue No 11 of 2007

SCRUTINY OF LEGISLATION COMMITTEE

MEMBERSHIP

52nd PARLIAMENT, 1ST SESSION

Chair: Mrs Carryn Sullivan MP, Member for Pumicestone

Deputy Chair: Mr Peter Wellington MP, Member for Nicklin

Ms Peta-Kaye Croft MP, Member for Broadwater

Ms Kate Jones MP, Member for Ashgrove

Mr Evan Moorhead MP, Member for Waterford

Mr Ray Stevens MP, Member for Robina

Mrs Jann Stuckey MP, Member for Currumbin

Legal Advisers to the Committee: Professor Gerard Carney

Mr Robert Sibley

Ms Margaret Stephenson

Committee Staff: Mrs Julie Copley, Acting Research Director

Mrs Ali Jarro, Principal Research Officer

Ms Tamara Vitale, Executive Assistant

Scrutiny of Legislation Committee

Level 6, Parliamentary Annexe Alice Street

Brisbane Qld 4000

Phone: 07 3406 7671 Fax: 07 3406 7500

Email: [email protected]

Alert Digest No 11 of 2007 Table of Contents

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TABLE OF CONTENTS

TERMS OF REFERENCE...................................................................................................................................v

FUNDAMENTAL LEGISLATIVE PRINCIPLES..................................................................................................v

PART I - BILLS ...........................................................................................................................1

SECTION A – BILLS REPORTED ON.....................................................................................................1

1. Appropriation Bill (No. 2) 2007.......................................................................................................1 Background .......................................................................................................................................1

2. Appropriation (Parliament) Bill (No. 2) 2007 .................................................................................2 Background .......................................................................................................................................2

3. Coroners and Births, Deaths and Marriages Registration Amendment Bill 2007......................3 Background .......................................................................................................................................3 Does the legislation have sufficient regard to the rights and liberties of individuals? ........................4

♦ clause 4 ..................................................................................................................................4

4. Criminal Code (Assaults Against Police and Others) Amendment Bill 2007 .............................5 Background .......................................................................................................................................5 Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .........................5

♦ clause 3(1) ..............................................................................................................................5

Does the legislation have sufficient regard to the rights and liberties of individuals? ........................5

♦ clause 3(1) ..............................................................................................................................6

♦ clause 3(2) ..............................................................................................................................6

Does the legislation have sufficient regard to the fundamental legislative principles? – independence of the judiciary............................................................................................................7

♦ Clause 3(2) .............................................................................................................................7

5. Criminal Code (Protecting School Students and Members of Staff From Assaults) Amendment Bill 2007......................................................................................................................9 Background .......................................................................................................................................9 Does the legislation have sufficient regard to the rights and liberties of individuals? ........................9 Is the legislation unambiguous and drafted in a sufficiently clear and precise way? .........................9

♦ clause 3 ..................................................................................................................................9

6. Financial Administration and Audit and Another Act Amendment Bill 2007 ...........................12 Background .....................................................................................................................................12 Does the legislation have sufficient regard to the institution of Parliament......................................12


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♦ clause 6 ................................................................................................................................12

7. Judicial Remuneration Bill 2007 ..................................................................................................14 Background .....................................................................................................................................14 Does the legislation have sufficient regard to the fundamental legislative principles? – independence of the judiciary..........................................................................................................14

♦ clause 3 ................................................................................................................................14

♦ parts 2 to 4, clause 33...........................................................................................................15

Schedule 1, Magistrates Act 1991. items 1 and 2 ...........................................................................16 Does the legislation have sufficient regard to the institution of Parliament?....................................16

♦ clause 5 ................................................................................................................................17

8. Mental Health and Other Legislation Amendment Bill 2007 ......................................................19 Background .....................................................................................................................................19 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................19

♦ part 2, generally ....................................................................................................................20

♦ clauses 4 and 23...................................................................................................................20

♦ clause 27 ..............................................................................................................................21

♦ clause 28 ..............................................................................................................................21

Does the legislation sufficiently subject the exercise of delegated legislative power to the scrutiny of the Legislative Assembly?...............................................................................................................22

♦ clause 25 ..............................................................................................................................22

9. Vocational Education, Training and Employment and Other Legislation Amendment Bill 2007 ................................................................................................................................................23 Background .....................................................................................................................................23 Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................23

♦ clause 3 ................................................................................................................................23

Does the legislation have sufficient regard to the rights and liberties of individuals? ......................24

♦ clause 3 ................................................................................................................................24

♦ Amendments to the Arts Acts................................................................................................24

Does the legislation confer immunity from proceeding or prosecution without adequate justification?25

♦ clause 3 ................................................................................................................................25

10. Water and Other Legislation Amendment Bill 2007 ...................................................................27 Background .....................................................................................................................................27 Does the legislation confer power to enter premises without a duly issued warrant?......................27


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♦ clauses 28 and 29.................................................................................................................27

♦ clause 82 ..............................................................................................................................28

♦ clause 83 ..............................................................................................................................28

Does the legislation have sufficient regard to the institution of Parliament?....................................29

♦ clauses 9 to 12 (part 4) .........................................................................................................29

♦ clauses 30 to 36 (part 8) .......................................................................................................30

Does the legislation have sufficient regard to Aboriginal tradition and Island custom? ...................30

♦ clauses 13 to 15 (part 5) .......................................................................................................30

♦ clause 17 ..............................................................................................................................31

Does the legislation have sufficient regard to the rights and liberties of individuals? ......................32 Does the legislation make individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review?..........................32

♦ clause 81 ..............................................................................................................................32

♦ clause 95 ..............................................................................................................................33

Does the legislation have sufficient regard to the rights and liberties of individuals? ......................35

♦ various clauses .....................................................................................................................35

11. Workers’ Compensation and Rehabilitation and Other Acts Amendment Bill 2007................37 Background .....................................................................................................................................37

PART I - BILLS .........................................................................................................................38

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE............................38

12. Gambling Legislation Amendment Bill 2007...............................................................................38 Background .....................................................................................................................................38 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................38

♦ clause 7 ................................................................................................................................38

♦ clause 18 ..............................................................................................................................39

13. Transport Legislation Amendment Bill 2007...............................................................................43 Background .....................................................................................................................................43 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?.....................................................................................................................43 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................43 Does the legislation confer power to enter premises and to search for or seize documents or other property without a duly issued warrant? ..........................................................................................43 Does the legislation have sufficient regard to the institution of Parliament?....................................44


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Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? .........................................................................................................................................44 Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..44 Does the legislation have sufficient regard to the rights and liberties of individuals? ......................44

PART I - BILLS .........................................................................................................................46

SECTION C – AMENDMENTS TO BILLS..............................................................................................46

PART I - BILLS ............................................................................................................................I

PART II – SUBORDINATE LEGISLATION ..............................................................................47

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS 47


SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES (including list of correspondence).............................................................................48


NOTE:

Details of all bills considered by the committee since its inception in 1995 can be found in the Committee’s Bills Register. Information about particular bills (including references to the Alert Digests in which they were reported on) can be obtained from the Committee Secretariat upon request.

Alternatively, the Bills Register may be accessed via the committee’s web site at:

http://www.parliament.qld.gov.au/Committees/SLC/SLCBillsRegister.htm

Alert Digest No 11 of 2007 Terms of Reference and Fundamental Legislative Principles

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TERMS OF REFERENCE The Scrutiny of Legislation Committee was established by statute on 15 September 1995. It now operates under the provisions of the Parliament of Queensland Act 2001.

Its terms of reference, which are set out in section 103 of the Parliament of Queensland Act, are as follows:

1) The Scrutiny of Legislation Committee’s area of responsibility is to consider—

a) the application of fundamental legislative principles1 to particular Bills and particular subordinate legislation; and

b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation.

2) The committee’s area of responsibility includes monitoring generally the operation of—

a) the following provisions of the Legislative Standards Act 1992—

• section 4 (Meaning of “fundamental legislative principles”)

• part 4 (Explanatory notes); and

b) the following provisions of the Statutory Instruments Act 1992—

• section 9 (Meaning of “subordinate legislation”)

• part 5 (Guidelines for regulatory impact statements)

• part 6 (Procedures after making of subordinate legislation)

• part 7 (Staged automatic expiry of subordinate legislation)

• part 8 (Forms)

• part 10 (Transitional).

FUNDAMENTAL LEGISLATIVE PRINCIPLES The “fundamental legislative principles” against which the committee assesses legislation are set out in section 4 of the Legislative Standards Act 1992.

Section 4 is reproduced below:

4 (1) For the purposes of this Act, "fundamental legislative principles" are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.2

1 “Fundamental legislative principles” are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law

(Legislative Standards Act 1992, section 4(1)). The principles include requiring that legislation has sufficient regard to rights and liberties of individuals and the institution of Parliament.

* The relevant section is extracted overleaf.

2 Under section 7, a function of the Office of the Queensland Parliamentary Counsel is to advise on the application of fundamental legislative principles to proposed legislation.

Alert Digest No 11 of 2007 Terms of Reference and Fundamental Legislative Principles

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(2) The principles include requiring that legislation has sufficient regard to –

1. rights and liberties of individuals; and

2. the institution of Parliament.

(3) Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation –

(a) makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; and

(b) is consistent with the principles of natural justice; and

(c) allows the delegation of administrative power only in appropriate cases and to appropriate persons; and

(d) does not reverse the onus of proof in criminal proceedings without adequate justification; and

(e) confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer; and

(f) provides appropriate protection against self-incrimination; and

(g) does not adversely affect rights and liberties, or impose obligations, retrospectively; and

(h) does not confer immunity from proceeding or prosecution without adequate justification; and

(i) provides for the compulsory acquisition of property only with fair compensation; and

(j) has sufficient regard to Aboriginal tradition and Island custom; and

(k) is unambiguous and drafted in a sufficiently clear and precise way.

(4) Whether a Bill has sufficient regard to the institution of Parliament depends on whether, for example, the Bill –

(a) allows the delegation of legislative power only in appropriate cases and to appropriate persons; and

(b) sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly; and

(c) authorises the amendment of an Act only by another Act.

(5) Whether subordinate legislation has sufficient regard to the institution of Parliament depends on whether, for example, the subordinate legislation –

(a) is within the power that, under an Act or subordinate legislation (the "authorising law"), allows the subordinate legislation to be made; and

(b) is consistent with the policy objectives of the authorising law; and

(c) contains only matter appropriate to subordinate legislation; and

(d) amends statutory instruments only; and

(e) allows the subdelegation of a power delegated by an Act only –

(i) in appropriate cases and to appropriate persons; and (ii) if authorised by an Act.

PART I

BILLS

Alert Digest No 11 of 2007 Appropriation Bill (No. 2) 2007

Chapter 1 Page 1

PART I - BILLS

SECTION A – BILLS REPORTED ON

1. APPROPRIATION BILL (NO. 2) 2007

Background

1. The Honourable Andrew Fraser MP, Treasurer, introduced the bill into the Legislative Assembly on 16 October 2007.

2. The Explanatory Notes provide the following information regarding the policy objectives of the bill:

The Bill provides supplementary appropriation for unforeseen expenditure that occurred in the 2006-2007 financial year.

The supplementary appropriation sought is based on the Consolidated Fund Financial Report, noting unforeseen expenditure to be appropriated in 2006-07, which has been prepared by the Treasurer and reported upon by the Auditor-General in accordance with Section 38A of the Financial Administration and Audit Act 1977. Brief explanations of departmental unforeseen expenditure requirements have been provided as part of the Consolidated Fund Financial Report 2006-07.

3. The committee considers that the bill does not raise any issues within its area of responsibility.

Alert Digest No 11 of 2007 Appropriation (Parliament) Bill (No. 2) 2007

Chapter 2 Page 2

2. APPROPRIATION (PARLIAMENT) BILL (NO. 2) 2007

Background

1. The Honourable Andrew Fraser MP, Treasurer, introduced the bill into the Legislative Assembly on 16 October 2007.

2. The Explanatory Notes provide the following information regarding the policy objectives of the bill:

The Bill provides supplementary appropriation for the Legislative Assembly and Parliamentary Service for unforeseen expenditure that occurred in the 2006-07 financial year.

The supplementary appropriation sought is based on the Consolidated Fund Financial Report, noting unforeseen expenditure to be appropriated in 2006-07, which has been prepared by the Treasurer and reported upon by the Auditor-General in accordance with Section 38A of the Financial Administration and Audit Act 1977. A brief explanation of departmental unforeseen expenditure requirements have been provided as part of the Consolidated Fund Financial Report 2006-07.

3. The committee considers that the bill does not raise any issues within its area of responsibility.

Alert Digest No 11 of 2007 Coroners and Births, Deaths and Marriages Registration Amendment Bill 2007

Chapter 3 Page 3

3. CORONERS AND BIRTHS, DEATHS AND MARRIAGES REGISTRATION AMENDMENT BILL 2007

Background

1. The bill was introduced into the Parliament by Mr John-Paul Langbroek MP, Shadow Minister for Health, on 17 October 2007. It is a private member’s bill.

2. In his Second Reading Speech, the member stated:

The Coroners and Births, Deaths and Marriages Registration Amendment Bill 2007 seeks to amend the Coroners Act 2003 and the Births, Deaths and Marriages Registration Act 2003 in order to implement a number of recommendations of the Queensland Public Hospitals Commission of Inquiry Report by the Honourable Geoffrey Davies.

The objective of the bill is to improve the integrity and reporting practices of deaths which occur within the peri-operative period following an elective health procedure, pursuant to recommendation number 7.50 of the Davies Report.

3. In the Queensland Public Hospitals Commission of Inquiry Report (the Davies Report),3 the Commissioner made the following recommendations at paragraph 7.50:

(a) The Coroners Act 2003 be amended by:

(i) adding a new subparagraph to s8(3) after subparagraph (d) to read:

‘The death happened within 30 days of an elective health procedure’.

(ii) adding a new definition in Schedule 2, to read:

‘’Elective Health Procedure’ means a health procedure that can be delayed for a period of 24 hours without death being a likely outcome.’

The 30 day time period specified in my proposed amendment may need to be the subject of further medical input.

(b) The Births Deaths and Marriages Registration Act 2003 be amended to ensure that:

(i) in the event of a death happening within 30 days of an elective health procedure, the health practitioner in charge of the procedure is obliged to provide to the coroner his opinion on the cause of death;

(ii) all deaths otherwise occurring in public hospitals are certified by the health practitioner responsible for the care of the deceased person;

(c) A dedicated medical officer be appointed to the State Coroner’s office to assist in determining whether deaths happening within the stipulated period of an elective health procedure are required to be further investigated and to assist in the conduct of that investigation;

(d) A panel of specialised persons trained in the various health service disciplines be appointed, and given such powers as are considered necessary, to enable coroners to consult with and receive assistance from such persons, on an hourly or part time basis, for the purposes of determining whether deaths happening within the stipulated period of an elective health procedure should be investigated and for the purposes of conducting that investigation;

3 Hon Geoffrey Davies AO, Queensland Public Hospitals Commission of Inquiry, Report, November 2005, available at: www.qphci.qld.gov.au

Alert Digest No 11 of 2007 Coroners and Births, Deaths and Marriages Registration Amendment Bill 2007

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(e) A process of auditing compliance with the reporting obligation be undertaken at all public hospitals;

(f) Queensland Health put in place a policy to ensure investigation is undertaken in relation to each death that occurs in a facility operated by them, and that a report of that investigation be provided to the coroner and the family of the deceased;

(g) Continuing training be provided to all doctors to ensure that they remain aware of their obligations to report.

Does the legislation have sufficient regard to the rights and liberties of individuals?

4. Section 4(2)(a) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the rights and liberties of individuals.

♦ clause 4

5. Clause 4 of the bill would insert a new section 10B into the Coroners Act 2003. The new section 10B(1) would provide for the section to apply where a person died within 30 days after undergoing an elective health procedure.

6. The new section 10B(2) would provide:

The doctor who was in charge of the health procedure must, as soon as practicable after the doctor becomes aware of the person’s death, give a coroner a written notice stating the doctor’s opinion as to the cause of the person’s death.

Maximum penalty—25 penalty units.

7. The committee notes that clause 4 is in different terms to the recommendation made in the Davies Report. Recommendation (a)(i) made in paragraph 7.50 was for the insertion of a new section 8(3)(d) of the Coroners Act 2003 to include within the definition of a ‘reportable death’ a death that happened within 30 days of an elective health procedure. Under section 7, there would then be a duty to report such a death. Section 7 sets out the nature of the duty regarding a reportable death, the ways in which it may be met and imposes a maximum penalty of 25 penalty units for a failure to immediately report as required by the section. As outlined above, clause 4 would amend the Coroners Act 2003 by inserting a new section 10B. The nature of the duty and the ways in which it may be met differ from the terms of section 7.

8. The committee notes that, although stated to have the objective of implementing recommendations of the Queensland Public Hospitals Commission of Inquiry, clause 4 is in different terms to the relevant recommendation.

Alert Digest No 11 of 2007 Criminal Code (Assaults Against Police and Others) Amendment Bill 2007

Chapter 4 Page 5

4. CRIMINAL CODE (ASSAULTS AGAINST POLICE AND OTHERS) AMENDMENT BILL 2007

Background

1. Mr Rob Messenger MP, the Shadow Minister for Police and Corrective Services, introduced the bill into the Legislative Assembly on 10 October 2007 as a private member’s bill.

2. Section 340 of the Criminal Code provides for a category of offences of serious assaults. The maximum penalty for each of the offences is seven years’ imprisonment. This maximum penalty was increased from three years to seven years by the Criminal Law Amendment Act 1997.

3. The bill would amend section 340 of the Criminal Code to:

• expand the scope of the current offence in section 340(2) to relate to a serious assault of a ‘working corrective services officer’ to a ‘working ambulance officer, corrective services officer or fire service officer’; and

• provide a minimum penalty for offences in section 340 (1)(b) (assault of police officer acting in exercise of duty) and section 340(2).

Is the legislation unambiguous and drafted in a sufficiently clear and precise way?

4. Section 4(3)(k) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation is unambiguous and drafted in a sufficiently clear and precise manner.

♦ clause 3(1)

5. Section 340(2) was inserted into the Criminal Code in 2006 by an amending Act. It provides:

A prisoner who assaults a working corrective services officer is guilty of a crime, and is liable to imprisonment for 7 years.

6. Clause 3(1) of the bill would amend section 340(2) by replacing the words ‘corrective services officer’ with ‘ambulance officer, corrective services officer or fire service officer’. These new terms are defined in a proposed clause 3(3). As amended, however, the word ‘prisoner’ in section 340(2) would not be replaced. Accordingly, the amended section would make it unlawful for a prisoner to assault working ambulance officers, corrective services officers and fire service officers.

7. The committee refers to Parliament the question whether the amendment intended to be effected by clause 3(1) is unambiguous and drafted in a sufficiently clear and precise manner.




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♦ clause 3(1)

9. The committee notes that the acts made unlawful by the amended section 340(2) are unlawful under other provisions of the Code, including section 346 of the Criminal Code. However, generally these offences attract a lesser maximum penalty than for the offence in section 340(2). Section 346 provides:

Any person who assaults another with intent to hinder or prevent the other person from working at or exercising the other person’s lawful trade, business, or occupation, or from buying, selling or otherwise dealing, with any property intended for sale, commits a crime.

Maximum penalty – 5 years imprisonment

10. The penalty for the offence in section 346 was increased from three months to five years by the Criminal Law Amendment Act 1997.

♦ clause 3(2)

11. Clause 3(2) would amend section 340 by inserting new section 340(2B) and (2C) to provide for a minimum, or mandatory, sentence of three months’ imprisonment in respect of the offences in section 340 of the Criminal Code.

12. To set an appropriate penalty for an offence, the Queensland Parliament’s practice has been to determine an appropriate maximum penalty. Accordingly, legislation creating an offence specifies the maximum term of imprisonment or non-custodial penalty that may be imposed for that particular offence.4 In practice, the maximum penalty is reserved for the worst type of case falling within the offence provision,5 and the maximum penalty provides the upper limit of the sentencing discretion. A judicial officer’s sentencing discretion is exercised then within a framework provided by:

• the maximum penalty prescribed by the offence provision; • provisions of the Penalties and Sentences Act 1992; and • relevant common law principles.

13. The setting of a minimum sentence for an offence would limit this discretion further and would impose a lower limit on the discretionary framework. Clearly, minimum sentences would affect the rights and liberties of individuals, as does all sentencing:

In one sense, sentencing has always been about human rights, as sentencing judicial officers struggle to craft a disposition for an offence that balance the various interest of the offender, the victim and the community.6

14. The principle of proportionality in sentencing, that an offender should be dealt with in a manner appropriate to his or her well-being and proportionate to his or her circumstances and the offence, seeks to balance the rights of all individuals concerned. The High Court has said:

4 In Queensland, the only exception to this general proposition is the mandatory life sentence for murder. For some offences, the maximum penalty

available may be reduced if a person is sentenced in the Magistrates Court rather than the District Court.

5 See Veen (No 2) (1988) 164 CLR 465.

6 Justice Terry Connolly, ‘Human Rights Aspects of Sentencing’, paper presented at Sentencing - Principles, Perpsectives and Possibilities, Australian Nationa University, Canberra, 10-12 February 2006, see: law.anu.edu.au/nissl/Connolly.pdf, 1.


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It is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society for the recidivism of the offender.7

15. In respect of sentencing in Queensland, the President of the Court of Appeal has argued strongly against minimum sentences and for the maintenance of judicial discretion.8

16. In relation to clause 3(2), the committee notes that the Court of Appeal has given some consideration to the appropriate sentencing range for offences under section 340 of the Criminal Code. In R v Taylor (2004) QCA 447, the Court of Appeal considered a sentence of two years’ imprisonment imposed for two counts of serious assault committed by way of threats to kill police accompanied by stabbing gestures. The Court of Appeal reviewed sentences imposed for similar serious assaults before determining that the two year sentence was within the proper range. Similarly, in R v Holden (2006) QCA 416, the Court of Appeal dismissed an application for leave to appeal against a sentence of 12 months’ imprisonment. The offences committed involved spitting at two police officers, informing them of a risk of contracting hepatitis C and wiping blood on one of the officers.9

17. The committee refers to Parliament the question whether clause 3 has sufficient regard to the rights and liberties of individuals.

Does the legislation have sufficient regard to the fundamental legislative principles? – independence of the judiciary

18. Section 4(1) of the Legislative Standards Act 1992 provides that fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

19. The independence of the judiciary, including security of tenure and remuneration, underlie a parliamentary democracy based on the rule of law.

♦ Clause 3(2)

20. Clause 3(2) provides for a minimum, or mandatory, sentence. Judicial discretion in relation to an appropriate penalty or sentence in given circumstances is a hallmark of judicial independence.

21. State legislation may be invalid on constitutional grounds if it purports to direct a State court to exercise its jurisdiction in ‘a manner which is inconsistent with the essential character of a court or with the nature of judicial power.’10 Constitutional invalidity will arise when State laws clearly undermine the

7 Chester v R (1988) 165 CLR 611 at [20].

8 See Justice Margaret McMurdo, ‘Why the Sentencing Discretion must be Maintained’, available at: www.courts.qld.gov.au/publications/articles/speeches

9 See also R v Juric [2003] QCA 132.

10 Chu Keng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. The State court must be conferred with federal jurisdiction. See generally, Enid Campbell, ‘Constitutional Protection of State Courts and Judges’ (1997) 23 Monash University Law Review 397, Gerard Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Melbourne, 2006, 373-376.


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integrity and independence of the Court and it has been held that prescription of mandatory sentences is not of this nature.11

22. The consistency of clause 3(2) with the fundamental legislative principles which underlie a parliamentary democracy based on the rule of law is a separate but related question. Similar principles must be considered.

23. The committee refers to Parliament the question whether clause 3(2) has sufficient regard to fundamental legislative principles regarding the independence of the judiciary.

11 Wynbyne v Marshall (1997) 141 FLR 166 and Lloyd v Snooks (1999) 153 FLR 339.

Alert Digest No 11 of 2007 Criminal Code (Protecting School Students and Members of Staff From Assaults) Amendment Bill 2007

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5. CRIMINAL CODE (PROTECTING SCHOOL STUDENTS AND MEMBERS OF STAFF FROM ASSAULTS) AMENDMENT BILL 2007

Background

1. Mr Stuart Copeland MP, Shadow Minister for Education and Training and Shadow Minister for the Arts, introduced this bill into the Legislative Assembly on 17 October 2007 as a private member’s bill.

2. The Explanatory Notes state:

The objective of the legislation is to introduce a number of offences into the Criminal Code Act 1899 (Qld) (‘Criminal Code’) that will protect both teachers and students from assaults and physical intimidation whilst on school grounds…

This Bill seeks to address [the number of assaults committed in educational facilities] by affording legislative protection to students and teachers from persons who assault and intimidate others whilst on school grounds. People who enter school grounds and assault others must be held responsible for their actions. Victims of such violence should also have the full protection of the law.



Is the legislation unambiguous and drafted in a sufficiently clear and precise way?

4. Section 4(3)(k) of the Legislative Standards Act 1992 requires that legislation be unambiguous and drafted in a sufficiently clear and precise manner.

♦ clause 3

5. Clause 3 would insert a new chapter 31 (Assaults, stalking, harassment or intimidation at school premises) into the Criminal Code. The new section 364B would establish four offences regarding:

• assaulting, stalking, harassing or intimidating a school student or member of staff of a school while the student or member of staff is attending a school, without actual bodily harm being caused (maximum penalty – 5 years’ imprisonment) (cl 346B(1));

• assaulting a school student or member of staff of a school while the student or member of staff is attending a school and causing actual bodily harm (maximum penalty – 10 years’ imprisonment) (cl 346B(2));

• unlawfully, and with intent to injure any other person – (a) wounding a school student or member of staff of a school; or (b) doing grievous bodily harm to a school student or member of staff of a school;

─ while the student or member of staff is attending the school (maximum penalty – 14 years’ imprisonment) (cl 346B(3)); and


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─ entering school premises with intent to commit an offence under another provision of this section (maximum penalty – 5 years) (cl 346B(4)).

6. In respect of whether the legislation has sufficient regard to the rights and liberties of individuals, the committee notes a number of matters.

7. First, proposed section 346B(1), (2) and (4) do not include the word ‘unlawfully’. This would mean that the Crown would not be required to prove that the acts or omissions of a person were unlawful; that is, that the conduct was not authorised, justified or excused by law. This may be an intended result, but it is not noted in the Explanatory Notes to the bill.

8. Second, offences in the Criminal Code currently make unlawful acts and omissions which equate to much of the scope of the offences to be enacted by clause 3.12 These include:

• common assault (s 335 of the Criminal Code) (maximum penalty - 3 years’ imprisonment) • assault occasioning bodily harm (s 339(1) of the Criminal Code) (maximum penalty - 7 years’

imprisonment) and, with circumstances of aggravation, that is, bodily harm, being or pretending to be armed with a weapon or instrument, or being in company with one or more persons (s 339(3) of the Criminal Code) (maximum penalty - 10 years’ imprisonment);13

• grievous bodily harm (s 320 of the Criminal Code) (maximum penalty - 14 years’ imprisonment); • wounding (s 323(1)(a) of the Criminal Code) (maximum penalty - 7 years’ imprisonment); and • stalking (s 359E of the Criminal Code) (maximum penalty - 5 years’ imprisonment, and increasing

to 7 years’ imprisonment if the accused uses or intentionally threatens to use unlawful violence against anyone or against property, or possesses a weapon).

9. In this context, the committee observes that, given the range of existing, established offences an alternate way of giving effect to the legislative intent might be by way of additional circumstances of aggravation in respect of existing offences.

10. Additionally, the committee notes the statement in the Explanatory Notes that:

Subsection 346B(4) establishes an offence for intending to commit an offence under subsections 346B(1)-(3), although no actual violence is inflicted. Practically, this means that online prearranged fight club details or mobile phone messages notifying persons of premeditated attacks, would serve as evidence of an intention to commit violence and could be dealt with through this section.

11. Again, the conduct identified would give rise currently to liability for the offence of conspiracy (ss 541 and 542 of the Criminal Code) which attracts a maximum penalty of 7 years’ imprisonment.

12. A related third matter is that consideration of the range of existing offences indicates that the proposed offences relate to a very broad spectrum of conduct. Proposed section 346B(1), for example, relates to ‘assaulting, stalking, harassing or intimidating’.

13. Fourth, the proposed clause 3 may not be drafted in a sufficiently clear and precise manner as it:

12 See, also, offences in the Summary Offences Act 2005.

13 The maximum penalties for these offences were increased by the Criminal Law Amendment Act 1997.


Chapter 5 Page 11

• provides alternate definitions for terms defined elsewhere in the Criminal Code – for example, the term ‘stalk’ is defined for the purposes of clause 3 in different terms to the offence in section 359E of the Code; and

• uses terms which are not defined and are of an imprecise nature – for example, the offence in proposed section 346B(1) would be made out when a person ‘harasses or intimidates’ although depending on the factual circumstances, harassment and intimidation may or may not amount to ‘assault’, an alternate element of the offence.

14. The committee refers to Parliament the questions of whether clause 3:

• has sufficient regard to the rights and liberties of individuals; and • is unambiguous and drafted in a sufficiently clear and precise manner.

Alert Digest No 11 of 2007 Financial Administration and Audit and Another Act Amendment Bill 2007

Chapter 6 Page 12

6. FINANCIAL ADMINISTRATION AND AUDIT AND ANOTHER ACT AMENDMENT BILL 2007

Background

1. The Honourable Andrew Fraser MP, Treasurer, introduced this bill into the Legislative Assembly on 9 October 2007.

2. The policy objectives of the bill are stated in the following way in the Explanatory Notes:

The Bill amends the Financial Administration and Audit Act 1977 and the Government Owned Corporations Act 1993 to reflect the amendment to the timeframe for the completion of Queensland public sector agencies’ audited financial statements by four weeks and a number of other amendments to improve the efficiency of processes under the Act.14

Does the legislation have sufficient regard to the institution of Parliament

3. Section 4(2)(b) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the institution of Parliament.

♦ clause 6

4. Clause 6 would amend section 43B of the Financial Administration and Audit Act 1977 to remove the requirement for a department to be listed in the Financial Administration and Audit Regulation 1995 before it can enter into derivative transactions.15 Accordingly, it is an amendment proposed to improve the efficiency of processes under the Act.

5. Under the current requirement for listing in the regulation, and by virtue of its role in the consideration and disallowance of subordinate legislation, the Queensland Parliament is made aware of the listing of a department. Clause 6 would remove this opportunity for review.

6. The Explanatory Notes to the bill provide the following information:

The need to prepare subordinate legislation and seek Executive Council approval to amend the approved departments listed in the Regulation does not permit the timely consideration of requests to undertake derivative transactions, and serves to limit the State’s capacity to implement hedging strategies as market opportunities arise.

14 At page 1.

15 A derivative transaction is a financial contract that derives its value from an underlying asset, commodity, liability or index. Examples of derivative transactions include forward agreements, futures, options and swaps. See Queensland Treasury, Derivative Transactions Policy Guidelines, March 2002.

Alert Digest No 11 of 2007 Financial Administration and Audit and Another Act Amendment Bill 2007

Chapter 6 Page 13

7. The committee notes also that annual reporting by departments includes reporting of derivative transactions. This provides the Queensland Parliament with information regarding these transactions.

8. The committee considers that clause 6 has sufficient regard the institution of Parliament.

Alert Digest No 11 of 2007 Judicial Remuneration Bill 2007

Chapter 7 Page 14

7. JUDICIAL REMUNERATION BILL 2007

Background

1. The Honourable Kerry Shine MP, Attorney-General and Minister for Justice, introduced this bill into the Legislative Assembly on 17 October 2007.

2. The Explanatory Notes to the bill state:16

The main objective of the Bill is to implement a simpler and more certain system for the determination of judicial salaries and allowances which is consistent with judicial independence and which will enhance national consistency in judicial remuneration. This, in turn, will ensure that Queensland continues to attract and retain judicial officers of the highest quality.

The Bill also makes a number of miscellaneous amendments (which are unrelated to judicial remuneration) to remedy gaps or clarify anomalies in various other pieces of legislation. These include: • Amendments to the Freedom of Information Act 1992 to allow agencies to continue to deal with freedom

of information applications out of time; • Minor amendments to the Magistrates Act 1991 regarding the appointment of acting magistrates; and • Minor, technical amendments to the Industrial Relations Act and Other Legislation Amendment Act 2007

and the Supreme Court of Queensland Act 1991 to achieve consistency between the amendments to the Magistrates Courts Act 1921 dealing with compulsory conciliation in the Industrial Relations Act and Other Legislation Amendment Act 2007 and current legislative provisions for other alternative dispute resolution processes.

Does the legislation have sufficient regard to the fundamental legislative principles? – independence of the judiciary

3. Section 4(1) of the Legislative Standards Act 1992 provides that fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

4. The independence of the judiciary, including security of tenure and remuneration, underlie a parliamentary democracy based on the rule of law.

♦ clause 3

5. Clause 3 of the bill states that the main purpose of the legislation is to provide for salaries and allowances for judicial officers in a way that:

• maintains judicial independence; • ensures Queensland continues to attract and retain judicial officers of the highest quality; and • is generally consistent with other Australian jurisdictions.

16 At page 1.


Chapter 7 Page 15

♦ parts 2 to 4, clause 33

6. Clause 33 of the bill (part 5) would repeal the Judges (Salaries and Allowances) Act 1967 (the current Act). Under the current Act, salaries and allowances for judges, members of the Land Court and members of the Queensland Industrial Relations Commission are determined by the Salaries and Allowances Tribunal.

7. Parts 2 to 4 of the bill would establish the ‘simpler and more certain system for the determination of judicial salaries and allowances’ referred to in the Explanatory Notes. The essential elements of the proposed system include:

• creation of a statutory nexus between the remuneration of a judge of the Federal Court of Australia and a judge of Queensland’s Supreme Court (the ‘benchmark amount’), with the remuneration to be paid as salary and jurisprudential allowance (cl 5);

• indexing the remuneration of other judicial officers against the benchmark amount (cls 6 to 15); • provision for a jurisprudential allowance payable to certain judicial officers, to increase at the

same rate as salary increases for the financial year (cl 16); • provision for the jurisprudential allowance to be paid in different forms (cls 17 to 20); • provision for expense of office allowances (specified judicial officers) and long leave allowances

(particular judicial officers) (cls 21 and 22); and • appropriation from the consolidated fund for payment of salaries and allowances and for payment

of judicial pensions (cl 23). 8. An independent judiciary is an essential element of a parliamentary democracy based on the rule of

law and the maintenance of an independent judiciary is one of the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

9. The Explanatory Notes to the bill identify a need for the legislation to be consistent with fundamental legislative principles, including the principle of the independence of the judiciary. In this context, the Explanatory Notes state:

Currently, independence of the Queensland judiciary in relation to salary and allowances is ensured by an independent statutory body making an annual determination. The Bill changes the mechanism for setting salary and allowances but, as with the current arrangements, maintains the separation of the executive from the process. These changes enhance judicial independence by removing procedural impediments to salary setting and creating greater certainty in remuneration. In particular, the Bill protects judicial salaries and allowances by providing they cannot be decreased.

10. The committee notes that the bill does contain safeguard provisions directed to ensuring the independence of judicial officers, including:

• legislative statement that the total amount of salary and allowances payable to a judicial officer for a financial year cannot be decreased in any later financial year (cl 24(1));

• specification of the date on which an adjustment to the salary and allowances of a judicial officer will take effect (cl 25);

• maintenance of the current entitlements to judicial pensions of judges of appeal appointed prior to 1997 (cl 26); and

• provision for the operation of the new Act in the 2007-2008 financial year (pt 5, div 3).


Chapter 7 Page 16

11. Further, the Second Reading Speech to the bill notes that the new system ‘protects judicial independence by maintaining the separation of the executive from the process’.17

Schedule 1, Magistrates Act 1991. items 1 and 2

12. An amendment of the Magistrates Act 1991 to be effected by the Schedule to the bill relates to the mechanism for appointment of acting magistrates. Under sections 5 and 6 of the Magistrates Act 1991, magistrates (other than acting magistrates) are appointed by the Governor in Council upon the recommendation of the Minister after consultation with the Chief Magistrate.

13. Item 1 would amend section 6(1) of the Magistrates Act 1991 to delete the words ‘at the request of the Chief Magistrate’. This would provide for appointment of acting magistrates by the Governor in Council alone. Item 2 would then amend section 6 by inserting a new section 6(1A). The new provision would require the Minister to consult with the Chief Magistrate prior to a recommendation to the Governor in Council about the appointment of a person to act as a magistrate.

14. The method of appointment of judicial officers is a matter which can affect judicial independence.

15. In relation to parts 2 to 4 of the bill, clause 33 and items 1 and 2 of the proposed amendments to the Magistrates Act 1991 contained in schedule 1, the committee notes the following statements of Gleeson CJ in Northern Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [3]:18

Within the Australian judiciary, there are substantial differences in arrangements concerning the appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing with complaints against judicial officers, and court administration. There is room for legislative choice in this area; and there are differences in constitutional requirements. For example, s.72 of the Constitution does not permit the appointment of federal acting judges. On the other hand, acting judges are commonly appointed for fixed, renewable, terms in some States and Territory courts.

16. The amendments to be effected by schedule 1 do no more than align the provisions for the appointment of magistrates and acting magistrates.

17. The committee suggests that parts 2 to 4 of the bill and items 1 and 2 of the proposed amendments to the Magistrates Act 1991 are within the scope of legislative choice and have sufficient regard to principles of judicial independence that underlie a parliamentary democracy based on the rule of law.

18. The committee refers to Parliament the question of whether the bill has sufficient regard to the independence of the judiciary.

Does the legislation have sufficient regard to the institution of Parliament?


17 At page 3.

18 References omitted.


Chapter 7 Page 17

♦ clause 5

20. Clause 5 provides that the ‘benchmark amount’ used for determination of jurisprudential salaries and allowances is to be equal to the salary payable to a Federal Court judge for the financial year.

21. A determination of the salary payable to a Federal Court judge is made under the Remuneration Tribunal Act 1973 (Cth). Following a determination by the tribunal of the remuneration to be paid to a Federal Court judge, the tribunal provides the Federal minister with a copy of its determination. Within 15 sitting days, the minister tables the determination in each House of the Australian Parliament. Either House of the Australian Parliament may then, within 15 days, pass a resolution disapproving of the determination (see ss 7(5A) to 8).

22. The committee notes that clause 5 would, therefore, remove oversight of judicial remuneration by the Queensland Parliament. In its place, clause 5 would establish a process involving oversight by the legislature in another jurisdiction. Consideration should be given to whether the advantages derived from adoption of the proposed ‘benchmark amount’ outweigh this factor.

23. The committee refers to Parliament the question of whether the bill has sufficient regard to the institution of Parliament.

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively?

24. Section 4(3)(g) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation does not affect rights and liberties, or impose obligations, retrospectively.

♦ clauses 42 to 53 (pt 5, div 4)

25. Clauses 42 to 53 would amend the Freedom of Information Act 1992 (Qld) (FOI Act). They are directed to the situation where, having received an application for access to information under the FOI Act, an agency or Minister continues to deal with the application following expiry of the statutory time limit for dealing with an application. Under the FOI Act, if an agency or Minister has not decided an application and notified the applicant accordingly within the relevant period (in relation to many applications, 45 days), the FOI Act provides that the application is deemed to have been refused. In these circumstances to date, agencies and Ministers have adopted the administrative practice of making decisions outside the relevant period.19

26. Accordingly, the operation of clauses 42 to 53 would, in part, be retrospective. Clause 53 would insert a new section 125 regarding considered decisions or reviews after an FOI application had been deemed to have been refused. The Explanatory Notes state:20

The amendments to the Freedom of Information Act 1992 include transitional provisions to validate past decisions and to extend the protection of the Act to agencies, Ministers and officers for applications dealt with pre-commencement and out of time. This retrospectivity is considered reasonable for past decisions made in good faith as review rights were in practice recognised and requiring these decisions to be remade would be administratively impractical and serve no purpose.

19 Explanatory Notes, page 2.

20 At page 5.


Chapter 7 Page 18

27. The practice of making retrospectively validating legislation is not one the committee endorses. Such laws can adversely affect rights and liberties or impose obligations retrospectively, thereby breaching fundamental legislative principles. However, the committee recognises that there are occasions on which curative retrospective legislation, without significant effects on rights and liberties of individuals, is justified.

28. The committee notes the statements in the Explanatory Notes as to the justification for any breach of fundamental legislative principles and, in particular, that past decisions to be validated were made in good faith.

29. The committee refers to the Parliament the question whether the retrospective operation of clauses 42 to 53 is justified.

Alert Digest No 11 of 2007 Mental Health and Other Legislation Amendment Bill 2007

Chapter 8 Page 19

8. MENTAL HEALTH AND OTHER LEGISLATION AMENDMENT BILL 2007

Background

1. The Honourable Stephen Robertson MP, Minister for Health, introduced this bill into the Legislative Assembly on 11 October 2007.

2. The Explanatory Notes outline the main objectives of fhe bill:21

• amend the Mental Health Act 2000 to give effect to a number of major recommendations from the Final Report of the Review of the Mental Health Act 2000, Promoting Balance in the Forensic Mental Health System, conducted by Mr Brendan Butler AM SC (the Butler Report); and

• make minor or consequential amendments to various other Health legislation, including the Nursing Act 1992, the Food Act 2006 and the Public Health Act 2005.

3. More specifically, the bill would amend the health portfolio Acts in the following ways:22

• Food Act 2006 - to ensure that current food businesses are required to comply with food safety supervisor and food safety program requirements on commencement of those provisions and to delay enforcement of the offence provisions until 1 July 2008;

• Medical Practitioners Registration Act 2001 - to deem an interstate medical practitioner who is required to perform an autopsy in Queensland at the direction of a coroner, to be registered in the category of registration corresponding to his or her interstate registration;

• Nursing Act 1992 - to give the Minister the same legislative power to direct the Queensland Nursing Council where it is in the public interest as currently exists for the Health Practitioner Registration Boards;

• Health Quality and Complaints Commission Act 2006 - to remove reference to ‘commissioner’ in section 93(2) of this Act which was inappropriately retained from the Health Rights Commission Act 1991;

• Health Services Act 1991 - to update the functions of the Chief Health Officer in light of Machinery of Government changes, make minor amendments to the membership of community health councils, make minor amendments to the operation of Quality Assurance Councils and minor changes to smoking prohibitions on health services premises;

• Public Health Act 2005 - to provide greater clarity about the circumstances under which a facility that provides declared health services will be exempt from having an Infection Control Management Plan (ICMP) under Chapter 4 (Infection control for health care facilities) of the Act; and

• Tobacco and Other Smoking Products Act 1998 - to make minor clarifying and correcting amendments.



21 At page 1; see also Queensland Government Response to the Final Report – Review of the Queensland Mental Health Act 2000, October 2007,

available at: www.health.qld.gov.au.

22 See Explanatory Notes, page 4.


Chapter 8 Page 20

♦ part 2, generally

5. Part 2 of the bill would amend various provisions of the Mental Health Act 2000. Amendments to the Act would allow the Director of Mental Health to issue ‘classified patient information orders’ and the Mental Health Review Tribunal to issue ‘forensic patient information orders’.23 An order would authorise victims of offences to access certain limited information about either a classified or protected patient. Disclosure of the information would be managed through a state-wide Victim Support Service.24

6. Enactment of the provisions of the bill would extend the information access rights of victims of offences allegedly committed by classified or forensic patients. Enactment would also affect patients’ rights to privacy. The Explanatory Notes to the bill state, generally:

Many of the amendments to the Mental Health Act 2000 included in the Bill concern the way in which the forensic mental health system accommodates the needs and rights of victims of alleged offences. The amendments seek to provide greater clarity and support for victims and their families and in some instances, greater access to information and services. The Mental Health Act 2000 is primarily (and properly) focussed upon the needs of involuntary mental health patients. Consequently, the provision of greater access to information and greater protection to support the needs of victims, necessarily impacts upon some rights of patients.

However, the Butler Report’s fundamental premise was the imbalance between the rights and needs of victims and the rights and needs of patients. In addition, the Butler Report highlighted the state, national and international approaches to victims in other judicial settings and sought to bring victims’ rights in the Queensland forensic mental health system in line with the rights of victims in other areas.

7. More specifically, in relation to the balancing of competing rights, the Explanatory Notes state:

Allowing victims and others (such as immediate family members, people with sufficient personal interest, etc) to have greater access to limited information concerning classified and forensic patients infringes upon the rights of patients to have their information remain confidential. However, this right of patients must be balanced with the rights and needs of victims of alleged crimes to feel safe and to be kept informed of matters relevant to the movements of the alleged perpetrator of the offence. The amendments will not permit the disclosure of health or treatment information, merely information pertaining to the movements and status of forensic or classified patients.

8. Provisions of the bill which would particularly affect individual rights to information and privacy are considered below.

♦ clauses 4 and 23

9. Clause 4 would amend section 70 of the Mental Health Act 2000 to enable the Director of Mental Health to notify anyone the director reasonably believes might apply for a classified patient information order (to be made under the new s 318C). Clause 23 would amend section 264 of the Mental Health Act 2000 to require the director to give written notice to a victim of a relevant alleged offence. The notice would state that the person who allegedly committed the offence had been referred to the Mental Health Court and might become the subject of a forensic order.

23 Clause 9 of the bill would omit the existing chapter 6, part 5 of the Mental Health Act 2000 which provides for present notification orders which

would be replaced by the new information orders regarding classified and forensic patients.

24 See Explanatory Notes, page 3.


Chapter 8 Page 21

♦ clause 27

10. Clause 27 would insert a new chapter 7A into the Mental Health Act 2000. New section 318C would enable the director, following an application, to make an order than an eligible person be given specified information. New section 318D would allow an order to be made in favour of a minor. New sections 318E and 318F are relevant to the making of these decisions.

11. The committee notes that various safeguards have been included in the bill:25

In deciding whether or not to grant an application the director may consider any matters the director consider appropriate. For example, the director may take into account the length of time the patient is likely to be a classified patient, and the nature and seriousness of the alleged offence.

An application for a classified patient information order must be accompanied by a declaration stating that the applicant will not disclose for public dissemination, any classified patient information relating to the classified patient disclosed to the applicant under the Part.

The applicant may nominate another person to receive information on their behalf. The nominee must also sign a declaration stating that the nominee will not disclose, for public dissemination, any classified information relating to the classified patient disclosed to the nominee under the Part.

12. In respect of forensic patient information orders, part 2, division 2 of the new chapter 7A contains similar provisions to those outlined above regarding classified patient information orders. In respect of new section 318R, which allows a forensic patient information order to be made without parties attending a hearing, the Explanatory Notes state:

The Butler Report also found that the test used by the tribunal when determining whether a person should be able to receive information about a forensic patient, unduly favoured the views and needs of the patient to the detriment of victims. Consequently, the amendments remove the requirement to seek the patient’s views on an application for the disclosure of information. This may impact negatively on the patient’s rights to have input into determinations about information concerning the patient. However, the tribunal will still be required to ensure that any approval to release information will not endanger the health or safety of the patient.

♦ clause 28

13. Clause 28 would amend section 458 to allow for confidentiality orders to be made by the tribunal regarding an application for a forensic patient information order. The balancing of individual rights adopted in clause 28 is discussed in the Explanatory Notes.26

14. The committee notes that the amendments to the Mental Health Act 2000 to be effected by part 2 of the bill implement recommendations made in the ‘Butler Report’. That report followed an extensive review of the mental health system, including the interests of victims of offences.

15. The committee considers that part 2 of the bill has appropriate regard to the rights and liberties of individuals.


26 See page 6.


Chapter 8 Page 22

Does the legislation sufficiently subject the exercise of delegated legislative power to the scrutiny of the Legislative Assembly?

16. Section 4(4)(b) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regard to the institution of Parliament depends upon whether, for example, the bill sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly.

♦ clause 25

17. Clause 25 would insert a new section 309A into the Mental Health Act 2000. The new section would require the director to issue policies and practice guidelines about the treatment and care of a forensic patient.

18. The Explanatory Notes to the bill identify possible inconsistency with fundamental legislative principles:

These policies and guidelines must be taken into account by administrators and treating psychiatrists. However, the provisions will not provide for how the director is to publish or notify of the creation or amendment of a policy or guideline. It may be perceived that these requirements and the lack of guidance for publication do not have sufficient regard to the institute of Parliament as required by the Legislative Standards Act 1992, s 4(2).

19. However, the Explanatory Notes further state that:

The Bill minimises any discord with this fundamental legislative principle in a number of ways. Under the amendments included in the Bill, the policies and guidelines are not given undue weight and include a statement to the effect that any discrepancies between the operation of the Act and adherence with any policies or guidelines issued by the director is to be resolved in favour of the Act. This will ensure that the policies or guidelines do not inadvertently amend the operation of the Act and subvert the authority of Parliament.

With respect to publication, there are no specific requirements for legislation to detail the mechanisms for publication of policies and guidelines referred to in an Act. As with all publications produced by government agencies and officials, it will be the responsibility of the author (in this instance the director) to ensure that those who must comply with the policies or guidelines are given sufficient notice of, and access to, the documents. The mechanism for publishing may vary depending upon the intended audience and, therefore, it is not practicable to prescribe publication in the Act. For instance, the director may issue guidelines for the treatment of forensic patients across Queensland which should be readily available through, for example, the Queensland Health intranet site. The director may also issue guidelines that are relevant to only one particular authorised mental health facility that do not require publication to the broader community. Administrative arrangements will ensure that the director has an appropriate procedure for publishing such policies and guidelines according to good public sector management standards.

20. If made as subordinate legislation, the policies and guidelines would be tabled in the Parliament and subject to the possibility of disallowance under section 50 of the Statutory Instruments Act 1992. In the past, the committee has expressed concern about bills authorising the making of instruments of a legislative nature but declaring them to be something other than subordinate legislation. This approach denies the important role of parliamentary scrutiny.

21. The committee refers to Parliament the question whether clause 25 has sufficient regard to the institution of Parliament.

Alert Digest No 11 of 2007 Vocational Education, Training and Employment and Other Legislation Amendment Bill 2007

Chapter 9 Page 23

9. VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT AND OTHER LEGISLATION AMENDMENT BILL 2007

Background

1. The Honourable Rod Welford MP, Minister for Education and Training and the Arts, introduced this bill into the Legislative Assembly on 16 October 2007.

2. The Explanatory Notes state that the primary policy objective of the bill is:27

to amend the Vocational Education, Training and Employment Act 2000 (the VETE Act) to create a legislative framework for the establishment and operation of TAFE institutes as statutory authorities.

A further objective of the Bill is to amend the Libraries Act 1988, the Queensland Art Gallery Act 1987, the Queensland Museum Act 1970, the Queensland Performing Arts Trust Act 1977 and the Queensland Theatre Company Act 1970 (the Arts Acts) to provide that the terms and conditions of appointment of the chief executive officers of the relevant statutory authorities are to be decided by the Governor in Council.

3. In its consideration of the bill, the committee received significant assistance from the comprehensive Explanatory Notes.

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons?

4. Section 4(4)(a) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regard to the institution of Parliament depends on whether, for example, the bill allows the delegation of legislative power only in appropriate cases and to appropriate persons.

♦ clause 3

5. Clause 3 provides for a new section 218U of the Vocational Education, Training and Employment Act 2000. That section requires TAFE institutes to notify the Minister prior to entering into a transaction to sell or purchase property, to supply vocational education and training or to generate revenue or commit expenditure with a value exceeding a prescribed threshold amount. The proposal to prescribe the threshold amount for each of these activities, rather than stipulating them in the Act, might be regarded as having inadequate regard to the institution of Parliament by allowing the threshold to be altered by regulation.

6. It is suggested in the Explanatory Notes that this clause is justifiable on the basis that:28

flexibility is required to enable adjustments of the threshold as institutes settle into the new operating model. For example, it may be necessary to adjust the general threshold amount (i.e. applicable to all statutory TAFE institutes) to accommodate general business growth achieved under the new operating model over time or alternatively to allocate specific thresholds to individual institutes that reflect their performance under the new operating model.

27 At page 1.

28 At page 7.


Chapter 9 Page 24

7. As identified above, it appears that the regulation-making powers as amended by the bill would be appropriate.

8. The committee considers that in the circumstances, amendments to be effected by the bill in respect of regulation-making powers appear to be appropriate.



♦ clause 3

10. New section 219L enables the Minister to obtain a criminal history report about a member or a nominee for membership of a statutory TAFE institute board in order to assess a person’s suitability for appointment. Pursuant to section 219K, a person with a conviction for an indictable offence will be disqualified from membership of the board.

11. It is arguable that this proposal could adversely affect the rights and liberties of a person who is, or may become, a member of the board.

12. The Explanatory Notes address this issue as follows:29

This potential breach of fundamental legislative principles is justified on the grounds that board members will be accountable for an entity that is not only publicly-funded but will also undertake significant commercial activities. In this context, the criminal history screening will facilitate a necessary ‘integrity check’. There will be a number of protections in place.

13. Under the bill, disclosure of a criminal history does not automatically prevent a person from becoming, or continuing as, a board member. Further, a request for a criminal history of a nominee requires consent and therefore a person has the option of withholding consent and opting out of the process.

14. The committee notes that the bill does not override the safeguards contained in the Criminal Law (Rehabilitation of Offenders) Act 1986.30

15. The committee considers the disclosure obligations imposed by proposed section 219L, which are of a type which has become more common in recent years, to be reasonable.

♦ Amendments to the Arts Acts

16. Additionally, the proposed transitional provisions inserted in each of the Arts Acts provide that no compensation is payable to a chief executive officer because of the operation of those arrangements. As such, the option of being re-appointed by the relevant statutory authority without reference back to the Governor in Council (including any re-negotiation of terms and conditions) will be removed and

29 At pages 7 to 8.

30 Namely, that only convictions for indictable offences which are not spent will be able to be requested, and that charges and investigative information will not be able to be disclosed.


Chapter 9 Page 25

replaced by a process in which the relevant terms and conditions must be determined by the Governor in Council, rather than by the relevant statutory authority.

17. According to the Explanatory Notes:31

it is not considered that any of the current chief executive officers will be disadvantaged by this proposed procedural change to the process of re-appointment. The effect of this procedural change will not prevent the chief executive officers from being re-appointed, and they will continue to be eligible for re-appointment as they are currently. The change is merely a procedural change to the appointment process and it will not affect any of the chief executive officers’ expectations for re-appointment.

In addition, the employment contract will continue to be between the chief executive officer and the relevant statutory authority. Consequently, the terms and conditions will continue to be negotiated between these two parties. When recommending an appointment to the Governor in Council, the Minister will be required to ensure that the recommendation has been approved by the statutory authority, and this will include the recommendation about the terms and conditions of the appointment. For these reasons, the potential breach of the fundamental legislative principle is considered to be justified.

18. The committee does not take issue with the procedural aspects of the new arrangements. If, however, there are grounds at law for those officers to claim compensation, the committee is of the view that any legal right to access compensation should not be removed without justification.

19. The Explanatory Notes do not indicate whether the affected employees have been consulted regarding these changes.

20. The committee seeks further information from the Minister as to what if any compensation might be payable; and the reasons for removing access to compensation.

Does the legislation confer immunity from proceeding or prosecution without adequate justification?

♦ clause 3

21. Section 4(3)(h) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation does not confer immunity from proceeding or prosecution without adequate justification.

22. A further issue is that new section 220S provides protection from civil liability for the Minister, the chief executive, a member of a statutory TAFE institute’s board and a member of a statutory committee or other committee of the board, for an act or omission made honestly and without negligence under the VETE Act.

23. In this regard, the Explanatory Notes state that:

The potential breach of fundamental legislative principles is justifiable on the basis that the provision operates to attach the civil liability to the State instead.

24. The committee has previously expressed the view that one of the fundamental tenets of the law is that everyone is equal before the law, and therefore should be fully liable for tortious acts.

31 At page 9.


Chapter 9 Page 26

25. The committee refers to Parliament for consideration the question of whether the immunity provided by proposed section 220S is justified.

Alert Digest No 11 of 2007 Water and Other Legislation Amendment Bill 2007

Chapter 10 Page 27

10. WATER AND OTHER LEGISLATION AMENDMENT BILL 2007

Background

1. The Honourable Craig Wallace MP, Minister for Natural Resources and Water and Minister Assisting the Premier in North Queensland, introduced this bill into the Legislative Assembly on 16 October 2007.

2. The Explanatory Notes to the bill state that the objectives of the bill are to amend the:

• Water Act 2000, Body Corporate and Community Management Act 1997, Local Government Act 1993, Plumbing and Drainage Act 2002 and Residential Tenancies Act 1994 to:

(a) implement a range of demand management measures in the south-east Queensland (SEQ) region to address the continuing drought and contribute to long-term sustainable water use;

(b) implement a range of short and long-term demand management measures in areas outside the SEQ region also experiencing water supply issues because of drought; and

(c) contribute to long-term sustainable water use in areas not experiencing drought; • Integrated Planning Act 1997 and Water Act 2000 to enable the full and effective implementation

of several resource operations plans due to commence in late 2007 or early 2008 and make minor technical amendments;

• Lake Eyre Basin Agreement Act 2001 to give effect to an amendment to the Lake Eyre Basin Intergovernmental Agreement;

• Land Act 1994 to ensure that relevant provisions of that Act are consistent with the Native Title Act 1993 (Cth);

• Land and Other Legislation Amendment Act 2007 and Water Amendment Act 2005 to make minor technical amendments; and

• Murray-Darling Basin Act 1996 to give effect to the Murray-Darling Basin Agreement Amending Agreement 2006.

Does the legislation confer power to enter premises without a duly issued warrant?

3. Section 4(2)(a) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the rights and liberties of individuals. Section 4(3)(e) of that Act provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.

♦ clauses 28 and 29

4. Clause 28 of the bill would insert a new section 1101A (a new ch 15, pt 5, div 7A Monitoring commission water restrictions) into the Local Government Act 1993. The new section would apply if an ‘authorised person’ (see section 1082 of the Local Government Act 1993) reasonably:


Chapter 10 Page 28

• suspected a ‘commission water restriction’ (see section 360ZD(1) of the Water Act 2000) was being or had been contravened at any place; or

• considered it necessary to enter a non-residential place to conduct an audit or inspection to monitor compliance with a commission water restriction (new s1101A(1)).

5. The new section 1101A(2) would allow an authorised person to enter a place to monitor compliance with a commission water restriction ‘at any reasonable time of the day or night’. The Explanatory Notes state that:

Section 1101A is inserted into the Local Government Act 1993 … to assist SEQ local government water service providers with monitoring and enforcing compliance with commission water restrictions; for which they have delegated responsibility for enforcing.

6. The new subsections (3) and (5) would contain safeguards regarding the exercise of the powers of entry conferred on an authorised person:

the provision requires the authorised person to identify himself or herself to an occupier if the occupier is present and state the purpose of the entry, unless it would frustrate the purpose of the entry. Entry under the section also does not authorise entry inside any part of a building or structure used for residential purposes. Existing provisions under the Local Government Act provide for compensation to be paid should damage arise from exercising the entry powers.32

7. Clause 29 would amend section 1102 of the Local Government Act 1993 to confer post-entry powers on an authorised person who has entered a place under the new section 1101A. The post-entry powers conferred by section 1102 are general and broad in nature. They are used following entry under one or more of a number of powers of entry conferred by the Local Government Act 1993 and include inspection and testing of anything in the place and the taking of samples and copying of documents.

♦ clause 82

8. Clause 82 would amend section 384 of the Water Act 2000 ‘to clarify that an authorised person may enter a place (which, under section 379 of the Act specifically excludes part of a place used for residential purposes) for the purposes of installing a device to reduce water supply to premises in accordance with section 457’.33

9. Section 384 of the Water Act 2000 was considered by the committee in Alert Digest 10 of 2000. The committee noted that section 384 conferred powers of entry upon authorised persons for particular purposes and that various restrictions applied in relation to such powers. In the circumstances, the committee considered the provision to be reasonable.

10. Clause 95, which would amend section 457 of the Water Act 2000 is discussed at paragraphs 39 to 40.

♦ clause 83

11. Clause 83 would insert a new section 384A into the Water Act 2000 to provide water service providers with powers to read meters in multi-unit residential and non-residential buildings, to check the




Chapter 10 Page 29

accuracy of these meters and to maintain or replace them. From 1 January 2008, such meters will be mandatory. Water service providers who provide retail water services will own the meters and will be responsible for reading and charging customers and maintaining and replacing meters.

12. The Explanatory Notes state:34

However, the entry power does not authorise entry to any part of a place used for residential purposes and entry may only be made at a reasonable time. Also, compensation is payable should damage arise from exercising the entry powers; and authorised persons must produce and display identity cards.

13. The committee notes that clauses 28, 82 and 83 would confer people authorised under the Local Government Act 1993 and the Water Act 2000 with powers to enter places without consent or under the authority of a warrant. Clause 29 provides an ‘authorised person’ under the Local Government Act 1993 with post-entry powers.

14. The committee draws to the attention of Parliament the nature and extent of these entry and post-entry powers.



16. Section 23(i) of the Legislative Standards Act 1992 requires that Explanatory Notes identify a bill which is substantially uniform or complementary with legislation of the Commonwealth or another State and provide a brief explanation of the legislative scheme.

♦ clauses 9 to 12 (part 4)

17. Clauses 9 to 12 would amend the Lake Eyre Basin Agreement Act 2001. The amendments are to give effect to an intergovernmental agreement made out of session at a Lake Eyre Ministerial Forum in November 2006. The relevant agreement is a Second Amending Agreement dated 23 January 2007.

18. The Explanatory Notes to the bill provide the following explanation of the legislative scheme:

The Lake Eyre Basin Intergovernmental Agreement (the Agreement) recognises the valuable ecosystems of the Lake Eyre Basin and their environmental, economic, social and cultural significance to the communities of the basin. The purpose of the Agreement is to provide for the cooperative management of the Basin's water and related natural resources across jurisdictions. Queensland has been an active party to the Agreement since its inception, and the Lake Eyre Basin Agreement Act 2001 (Lake Eyre Basin Agreement Act) gives effect to this agreement.

In 2004 South Australia undertook a review of the boundaries of the basin area and proposed an amendment to include the South Australian portions of the Hay, Finke, Neales and Douglas catchments. The changes to the basin boundaries agreed through the Second Amending Agreement made on 23 January 2007 will not come into effect until the Queensland, South Australia and Northern Territory parliaments have passed legislation reflecting these changes.

34 At page 11.


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19. Part 8 of the bill would amend the Murray-Darling Basin Act 1996 to give effect to changes made to the Murray-Darling Basin Amending Agreement of 1992 by the Murray-Darling Amending Agreement of 2006. The Explanatory Notes provide the following information regarding the legislative scheme:

The amendments to the Murray-Darling Basin Act 1996 (Murray-Darling Basin Act) will give effect to the Murray-Darling Basin Agreement Amending Agreement of 2006, as approved by the First Ministers of the parties to the original Agreement on 14 July 2006. The original Murray-Darling Basin Agreement was made in 1992 between the Commonwealth, New South Wales, Victoria and South Australia. Since then Queensland and the Australian Capital Territory have become signatories to the Agreement. The purpose of the Agreement is to promote and coordinate effective planning and management for the equitable, efficient and sustainable use of the water, land and environmental resources of the Murray-Darling Basin. The Agreement is embodied, in each party’s jurisdiction, in an Act of Parliament.

The amending agreement was introduced because the parties to the Agreement wished to enhance business practices for the Murray-Darling Basin Commission’s water business ‘River Murray Water’. Queensland is not generally involved in the commission’s water business and so the amendments have limited impact on or relevance to Queensland. However, concern was raised about Queensland’s liability, as a party to the Agreement, for works in which it had no direct involvement, and the amending agreement also clarifies that Queensland has no liability in such circumstances.

20. It is the committee’s practice to draw to the attention of the Parliament any provisions of a bill which are to give effect to an intergovernmental agreement. The committee, in common with the legislative scrutiny committees of the Parliaments of other Australian States and the Commonwealth, has identified concerns that elements of intergovernmental legislative schemes might undermine the institution of Parliament. The committees’ concerns relate to the potential for the executive to formulate, manage and possibly alter such schemes to the exclusion of legislatures. The committee have also warned against a perception of a reduced need for legislative scrutiny of an intergovernmental agreement proposed for ratification.

21. Parts 4 and 8 of the bill respectively are substantially uniform with legislation of other Australian jurisdictions. The parts are to give effect to intergovernmental agreements.

22. The committee refers to Parliament the question whether the bill has sufficient regard to the institution of Parliament.

Does the legislation have sufficient regard to Aboriginal tradition and Island custom?

23. Section 4(2)(a) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to rights and liberties of individuals and section 4(3)(j) provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation has sufficient regard to Aboriginal tradition and Island custom.


24. The Land Act 1994 would be amended by clauses 13 to 15 of the bill.

25. Section 18 of the Land Act 1994 provides that, by agreement with a registered owner, lessee or holder of a native title interest in land, the Governor in Council may grant or lease unallocated State land as consideration for freehold land, a lease or a native title interest in land. The grant of a new interest or


Chapter 10 Page 31

lease is limited under the provision to a holder of the native title interest in land who surrendered that interest.

26. Clause 14 would amend section 18 to remove all references to a native title interest in land. Provision for the surrender of native title interests would be made then in a new section. Accordingly, clause 15 would insert a new section 18A into the Land Act 1994 to:

improve the operation of the law in support of the Native Title Act 1993 (Cwlth) and [clarify] the entity to which a grant of a lease or deed may be made where an indigenous land use agreement contemplates a grant in consideration for the surrender of native title to the State.

27. Unlike the current section 18, equivalent provisions in the Native Title Act 1993 (Cth) do not limit the grant of consideration for the surrender of native title interest in land to the holder/s of the native title interest. Sections 24BE, 24CE and 24DF of the Native Title Act 1993 (Cth) have the effect of providing that:

• the terms of an indigenous land use agreement may relate to the extinguishment of native title rights and interests in relation to land or waters in a particular area by the surrender of the rights and interests to the State of Queensland; and

• the surrender may be given subject to conditions and for consideration, including in contemplation of a grant of freehold land or a statutory interest in land.

28. Accordingly, the new section 18A would have similar effect. The Explanatory Notes to the bill state:35

Native title legislation relies upon the terms of an indigenous land use agreement to identify the person who should be the recipient of a deed or lease granted in exchange for the surrender of a native title interest in land.

The current wording of section 18 of the Land Act 1994 (Land Act) has recently led to a perception that the recipient may be any person (including a third party not associated with the native title holders). The amendments will clarify who may be the recipient of a deed or lease under the terms of an indigenous land use agreement, and help to ensure that the provisions of the Land Act are consistent with the Native Title Act 1993 (Cwlth).

♦ clause 17

29. The Land and Other Legislation Amendment Act 2007 would be amended by clause 17 to effect an amendment consequential to the insertion of a new section 18A into the Land Act 1994.

30. In relation to clauses 13 to 15 and clause 17, the committee notes that Aboriginal peoples’ and Torres Strait Islanders’ connection to land and country is of great significance to their respective cultures and traditions. The Native Title Act 1993 (Cth) defines ‘native title’ as the rights and interests that are possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders in land and waters, and that are recognised by the common law.36

31. As clauses 13 to 15 provide for consideration to be given for the surrender of native title interests and require identification of the people having a ‘sufficient relationship’ with those who hold native title interests in land, these clauses should have sufficient regard to ‘Aboriginal tradition and Island custom’.

35 At page 5.

36 Section 223. Section 5 of the Native Title (Queensland) Act 1993 provides, ‘Words and expressions used in the Commonwealth Native Title Act and this Act have the same meanings in this Act as they have in the Commonwealth Native Title Act.’


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32. However, neither the Explanatory Notes nor Second Reading Speech to the bill indicate that Aboriginal peoples and Torres Strait Islanders were consulted regarding clauses 13 to 15 and 17 of the bill. Nor do they state whether the proposed amendments are consistent with the fundamental legislative principle in section 4(3)(j) of the Legislative Standards Act 1993. It is not clear, therefore, whether the legislation has sufficient regard to the traditions and customs of Aboriginal peoples and Torres Strait Islanders.

33. The committee will write to the Minister to request further information about whether clauses 13 to 15 and 17 of the bill have sufficient regard to Aboriginal tradition and Island custom.


34. Section 4(2)(a) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to rights and liberties of individuals.

Does the legislation make individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review?

35. Section 4(3)(a) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation makes rights or liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review.

♦ clause 81

36. Clause 81 would amend section 360ZD of the Water Act 2000. Section 360ZD was inserted by the Water Amendment Act 2006. The Explanatory Notes to that Act state, regarding section 360ZD:

Section 360ZD provides for the Commission to impose a restriction in a region where it has jurisdiction if, because of climatic conditions or the need to conserve water, it considers a restriction on the use of water is necessary. This means that irrespective of any water restrictions set out in a regional water security program, the Commission has the power under this section to impose a restriction providing it has jurisdiction in the region.

However, the Commission can only impose restrictions if: • there is an urgent need for it; or • the available water supply has fallen to a level at which unrestricted use of the water is not in the public

interest; or • the restriction is essential to ensure the aims of a relevant regional water security program or system

operating plan are met; or • the Minister has published a notice under section 22 of the Act (limiting or prohibiting the taking of or

interfering with water during an emergency); or • a regulation has been made under section 23 of the Act (limiting the taking of or interfering with water in

response to a shortage of water or a thing in harmful quantities in water).

The restriction may restrict the amount of water that may be taken by or supplied to a customer or group of customers of a service provider, the hours when water may be used on premises for certain purposes and the way in which in water may be used on premises.

The Commission may apply the restriction to water that is taken from a rainwater tank if the tank is connected to a water service provider’s reticulated water supply.


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A restriction may be imposed by the Commission even if a service provider water restriction about the same matter already applies.

37. Clause 81 would amend section 360ZD by:

• deleting the words ‘because of a significant threat to sustainable and secure water supply’ from section 360ZD(1) to ‘remove doubt that the Commission may impose water restrictions to help achieve long-term demand management objectives for water and is not limited to where there is a significant threat to secure and sustainable water supply’;37

• delete examples of things that may pose a threat to sustainable and secure water supply, such as climatic conditions, water conservation needs and water quality needs, from section 360ZD;

• insert into section 360ZD(2) words to clarify that a restriction may be imposed if ‘there is an urgent need for it because of a significant threat to sustainable and secure water supply’ (amended s 360ZD(2)(a)) and ‘the restriction will help the achievement of long-term demand objectives for water’ (new s 360ZD(2)(e)); and

• inserting words to provide that a restriction may apply to ‘non-Act water’ (amended s 360ZD(3)) to clarify that where a rainwater tank is connected to the reticulated supply, a commission water restriction can apply to all the water in the tank, a clarification deemed necessary as ‘it is not practicable to determine the source of the water in the rainwater tank’.

38. As amended by clause 81, section 360ZD(1) and (2) would allow the Queensland Water Commission to:

rely on this head of power to impose ongoing low-level restrictions to encourage permanent water use practices to contribute to a sustainable and secure water supply for the future.38

♦ clause 95

39. Section 457 of the Water Act 2000 currently allows service providers to reduce the water supply to premises where the owner or occupier of the premises continues to contravene a service provider water restriction, despite receiving notice not to contravene the restriction. Section 457(2) states that the service provider may reduce the water supply to the premises to the minimum level necessary for the health and sanitation purposes of the owner or occupier and section 457(3) states that the service provider must not completely shut off the water supply to the premises.

40. Clause 95 would amend section 457 to allow service providers to reduce the water supply to premises where the owner or occupier breached a water service commission restriction. The Explanatory Notes state that:39

An amendment to section 457 will extend the power to restrict flow to include continued contravention of commission water restrictions. Currently, where commission water restrictions apply in the SEQ region, they are the only water restrictions that apply, and water service providers have been delegated responsibility for monitoring and enforcing compliance with the restrictions.



39 At page 11.


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41. Currently, the Water Act 2003 does not provide a right to appeal, on the merits, a decision taken under section 457. Nor is provision for an administrative appeal provided by the proposed amendment. The Explanatory Notes further state that:40

Although there is no merits appeal in relation to the service provider’s action, review under the Judicial Review Act 1991 is not excluded. Compliance with water restrictions is paramount to a water service provider’s ability to manage their current water supplies; this is particularly critical in the current water supply emergency in the SEQ region. Action to restrict flow is considered a measure of last resort and is considered justified as an owner or occupier has an opportunity to remedy repeated breaches before the action is taken.

42. Accordingly, amendment of section 360ZD by clause 81 would allow the Queensland Water Commission to impose restrictions, both of general and specific application. Amendment of section 457 by clause 95 would allow for the imposition of a ‘penalty’ for continued contravention of a water service commission restriction; namely, reduction in the flow of water to individual premises. Review on the merits is not made available in respect of the decision to reduce the water flow.

43. Queenslanders have rights to access an adequate supply of safe and potable water. The committee notes, for the information of the Parliament, that the National Health and Medical Research Council’s Australian Drinking Water Guidelines give effect to the World Health Organisation’s Guidelines for Drinking-Water Quality. In addition, relevant Australian human rights obligations regarding health include the right to a safe and potable water supply:

• International Covenant on Economic, Social and Cultural Rights (see, in particular, articles 12.1 and 12.2); and

• Convention on Rights of the Child (see, in particular, articles 24.1 and 24.2).41 44. Legislation with sufficient regard to these rights to health should appropriately balance competing

principles, as suggested by Monash University’s Castan Centre for Human Rights:

Whilst it is right and proper for people to share responsibility for water use in the form of user pays, increased awareness of water conservation methods and practice of those methods, priority must be given to satisfaction of basic needs and protection of the [environment].42

45. Clearly, clauses 81 and 95 seek to balance short and longer term rights to an adequate supply of safe and potable water. Safeguards for individuals’ short term needs are included in existing section 457(2) and (3).

46. As observed in the Explanatory Notes to the bill (see paragraph 41), the additional safeguard of the availability of appeal ‘on the merits’ of a service provider’s action in reducing the flow of water to premises is not provided by the Water Act 2000 or the proposed provisions in the bill. While a person affected by such decision or action could bring an application under the Judicial Review Act 1992, a court hearing such an application has power to examine only the legality of the decision or action. Accordingly, the committee suggests that this ‘judicial review’ is quite different from merits review by an administrative review body giving fresh consideration to whether the decision or action was the correct or preferable one in all the circumstances of the matter.

40 At page 11.

41 Australia has signed and ratified these treaties.

42 Submission to the Water Resources Strategy Committee regarding the Strategy Directions Report, 21st Century Melbourne: A Water Smart City, available at: www.law.monash.edu.au/castancentre/publications/watersmart


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47. The committee notes that Queenslanders have rights to access an adequate and potable water supply. Legislation with sufficient regard regard to rights and liberties should appropriately balance competing rights and liberties.

48. The committee refers to Parliament the questions whether clauses 81 and 95:

• have sufficient regard to the rights and liberties of individuals; and • make individual rights and liberties, or obligations, dependent on administrative power only if the

power is sufficiently defined and subject to appropriate review.



♦ various clauses

50. A number of clauses of the bill either contain new offences or increase the maximum penalties for existing offences. These sections would have the effect of impacting on the rights and liberties of people liable to the offences.

51. The proposed new offences, together with their maximum penalties, are set out in the table below.

Clause New Section Offence Penalty

46 127A, Plumbing and Drainage Act 2002

Dismantling or taking away greywater treatment plant 100 penalty units

49 128JA, Plumbing and Drainage Act 2002

Tampering with water meter 165 penalty units

52 128OA, Plumbing and Drainage Act 2002

Disposing of contents of greywater treatment plant 100 penalty units

54 128PA, Plumbing and Drainage Act 2002

Use of greywater (two offences) 500 penalty units; 100 penalty units

85 388A, Water Act 2000 Water service provider not complying with directions given by the regulator (two offences)

200 penalty units; 200 penalty units

92 429M, Water Act 2000 Water service provider failing to have outdoor water use conservation plan

200 penalty units

92 429N, Water Act 2000 Water service provider failing to comply with notice regarding outdoor water use conservation plan

200 penalty units

92 429P, Water Act 2000 Water service provider failing to comply with outdoor water use conservation plan

200 penalty units

93 429R, Water Act 2000 Water service provider’s rate notice or account for supply of water to residential premises failing to comply with guidelines

200 penalty units

52. One clause increasing a maximum penalty and another amending existing offences are identified below.


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Clause Section Offence New Penalty Existing Penalty

45 125(2), Plumbing and Drainage Act 2002

Building or installing particular on-site sewerage treatment plan


165 penalty units

53 128P(3) and (4), Plumbing and Drainage Act 2002

Disposing of contents of on-site sewerage facility (offences amended – two offences expanded to become four offences)

100 penalty units; 100 penalty units; 100 penalty units; 100 penalty units


53. The committee refers to Parliament the question of whether the proposed penalties have sufficient regard to the rights and liberties of persons who may be liable to them.

Alert Digest No 11 of 2007 Workers’ Compensation and Rehabilitation and Other Acts Amendment Bill 2007

Chapter 11 Page 37

11. WORKERS’ COMPENSATION AND REHABILITATION AND OTHER ACTS AMENDMENT BILL 2007

Background

1. The Honourable John Mickel MP, Minister for Transport, Trade, Employment and Industrial Relations, introduced this bill into the Legislative Assembly on 16 October 2007.

2. The main objective of the bill, as indicated by the Explanatory Notes, is:43

to implement a package of improved rehabilitation and return to work initiatives and miscellaneous workers’ compensation, workplace health and safety, electrical safety and industrial relations legislative amendments.

3. The committee notes that the bill generally enhances benefits for workers. The committee considers that the bill raises no issues within the committee’s terms of reference.

43 At page 1.

Alert Digest No 11 of 2007 Gambling Legislation Amendment Bill 2007

Chapter 12 Page 38

PART I - BILLS

SECTION B – COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE

12. GAMBLING LEGISLATION AMENDMENT BILL 2007

Background

1. The Honourable Anna Bligh MP, Deputy Premier, Treasurer and Minister for Infrastructure, introduced this bill into the Legislative Assembly on 22 August 2007.

2. The committee commented on this bill in its Alert Digest No 9 of 2007 at pages 6 to 8. The response to those comments from the current Treasurer, the Honourable Andrew Fraser MP, is referred to in part below and reproduced in full in Appendix A of this Digest.


3. Section 4(2)(a) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to rights and liberties of individuals.

♦ clause 7

4. The Explanatory Notes state:44

Clause 7 amends section 102 [of the Casino Control Act 1982] to implement changes which will strengthen the Government’s stance against minors being exposed to the casino environment and reflects the seriousness the Government places on this issue.

5. Clause 7(1) would amend section 102(3) of the Casino Control Act 1982 to increase the maximum penalty for an existing offence regarding the admission to or continued presence of people under 18 years in a casino. The existing maximum penalty, applicable to casino operators, employees or agents of a casino operator, is 20 penalty units. The new maximum penalty in relation to casino owners would be 200 penalty units and for an employee or agent of a casino operator, 40 penalty units. Although this is a significant increase in the maximum penalty for the offence, the committee notes that justification for the increase is provided in the Explanatory Notes and that differing penalties apply to casino operators and their employees and agents.

6. Clause 7(2) would insert three new offences into the Casino Control Act 1982. The new section 102(3A) would render an adult guilty of aiding or enabling a person under 18 years to enter or remain in a casino during the hours of operation liable to a maximum penalty of 20 penalty units. Second, the new section 102(3B) and section 102(3C) are intended to specifically target casino gambling by minors. Under section 102(3B), it would be an offence for a casino operator, employee or agent of the operator to unlawfully ‘allow a person under 18 years to gamble or attempt to gamble in the casino’. Under section 102(3C), a casino operator, employee or agent of the operator who ‘finds a person under 18 years gambling or attempting to gamble in the casino’ will be liable for the offence if he or

44 At page 5.


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she does not ‘immediately prevent the person from gambling or attempting to gamble’. In relation to both section 102(3B) and section 102(3C), the maximum penalty incurred by casino owners would be 200 penalty units and, by an employee or agent of a casino operator, 40 penalty units.

7. In relation to clause 7(2), the committee also draws attention to the statements in the Minister’s Second Reading Speech regarding the new offences: 45

It is not intended that dealers be required to check identification of each person who wishes to play at the dealer’s table since dealers are not trained in checking identification. However, where a prospective player appears to be underage, the dealer should alert an appropriate supervisor.

8. Relevant to consideration of whether clause 7 has sufficient regard to the rights and liberties of individuals, the committee first points out that use of the words ‘allow’ in section 102(3B) and ‘finds’ in section 102(3C) respectively import a subjective element into each of the new offences. The new section 102(3C) would additionally require a person to take ‘immediate’ action to avoid liability. The committee suggests that the use of such broad terms, capturing a broad range of acts or omissions, is undesirable in legislation which affects the rights and liberties of individuals. It is noted, however, that that the existing offence provision in section 102(3) also uses the term ‘allow’.

9. Second, the Act, as amended, would not itself reflect the Minister’s stated intention that dealers should not be required to check identification. As presently drafted, for example, a casino employee could be found to have ‘allowed’ a person under 18 to gamble or attempt to gamble even if a supervisor had been earlier alerted but identification had not yet been checked. Again, the words ‘must immediately prevent’ require immediate action to avoid liability.

♦ clause 18

10. Clause 18 would insert a maximum penalty into section 101 of the Charitable and Non-Profit Gaming Act 1999. Section 101 requires a person advertising the conduct of a ‘game’ to take reasonable steps regarding the content and nature of the advertisement. The Explanatory Notes advise:

Clause 18 introduces a penalty of 100 penalty units for a breach of the advertising provisions in section 101. Although this provision has general application, this penalty is introduced to deal mainly with one-off breaches of the provision where the giving of a direction by the chief executive in relation to future conduct and subsequent actions as provided by section 102, would be ineffective or not considered appropriate.

11. Section 101 of the Charitable and Non-Profit Gaming Act 1999 is in very broad terms and imposes requirements which are of a general nature. Currently, liability does not attach to a breach of section 101 but to a breach of section 102; that is, where a person, without reasonable excuse, does not comply with a direction of the chief executive regarding compliance with section 101. The maximum penalty provided by section 102 is 50 penalty units.

12. The maximum penalty provided by clause 18, as drafted, would have general application to a breach of the broad terms of section 101. While, in practice, the maximum penalty is reserved for the worst type of case falling within the offence provision,46 the committee notes the intention stated in the Second Reading Speech that the penalty is to have application ‘mainly’ to certain actions or omissions.

45 At page 1.

46 See Veen (No 2) (1988) 164 CLR 465; and R Fox, ‘The Killings of Bobby Veen: The High Court on Proportionality in Sentencing’, Criminal Law Journal , vol 12, 1988, at 339.


Chapter 12 Page 40

13. In Watson v Marshall (1971) 124 CLR 621 at 629, Walsh J (following Griffith CJ in McLaughlin v Fosbery (1904) 1 CLR 546 at 559) said:

… in the interpretation of an Act which affects personal liberty, supposition as to the intention of the legislature has no place and .. the function of the Court is limited to interpreting and giving effect to its will as expressed in the statute.

14. The committee recommended that the then Minister consider amending clauses 7 and 18 to more specifically identify the acts or omissions to which liability attaches.

15. The current Treasurer’s response was:

I have considered the drafting of clause 7 of the Bill and am satisfied that the provisions in the sections 102(3B) and 102(3C) of the Casino Control Act 1982 (Casino Control Act) as amended are sufficiently specific and have a plain meaning which I believe has no onerous potential to individual rights and liberties. In particular, the offence provisions are subject to the general rule of mens rea and the defence of belief on reasonable grounds.

The provisions are intended to be broad because there are a number of ways in which a minor, contrary to the law, may be allowed to gamble or could be found gambling or attempting to gamble. For example, a minor might play at an electronic gaming machine, attempt to exchange cash for chips or make a wager at a gaming table which includes both conventional and electronic tables. An attempt to identify all possible gaming activities, the means by which a minor might be detected and to specify responsibilities for different classes of casino employees would have produced prescriptive legislation requiring constant amendment to address rapid changes in gaming technology and organisational restructures within any of Queensland’s four casinos.

It should be noted that the existing section 102(3) of the Casino Control Act creates an offence for allowing a minor to remain in a casino during operating hours and creates an obligation to remove or cause to be removed such a minor. A minor who is merely present in the gaming area of a casino or who is gambling or attempting to gamble must first have passed through the licensed gaming area perimeter, where a casino’s Safety and Security Officers and other personnel are stationed, before they could access the tables or gaming machines.

It is the responsibility of all casino staff to ensure that minors do not enter or remain on licensed premises. All staff members are informed of their responsibilities at orientation as well as through responsible service of alcohol or responsible gambling training, or both. Due to the nature of their duties, Safety and Security Officers and Food and Beverage staff are provided with additional specific training related to the checking of identification and the questioning of patrons about their age.

As you are aware the offences in sections 102(3B) and 102(3C) are not offences of strict (absolute) liability, as subsection (5) allows for a due diligence defence. A defence will apply if the defendant can establish reasonable grounds for believing that a person was not under 18 years of age.

Your Committee considers that the use of the word ‘allows’ imports a subjective element into the offence under section 102(3B). However, you acknowledge that section 102(3) already uses the term ‘allow’. There are somewhat analogous offences concerning minors contained in the Liquor Act 1992 (Liquor Act). In particular, section 156(1) which provides among other things that:

‘A person must not, on premises to which a licence or permit relates– (a) supply liquor to; or (b) permit or allow liquor to be supplied to; or (c) allow liquor to be consumed by;

a person who– (d) is a minor; or …’ The Liquor Act provides for a maximum penalty of 250 or 40 penalty units depending on the status of the person committing the offence.


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An offence against section 102(3B) of the Casino Control Act can arise either ‘passively’ or ‘actively’. For example, a casino officer may turn a blind eye to someone they believe is a minor playing a gaming machine or they may convert cash to chips even thought the person making the transaction appears to be a minor.

Your Committee considers that the use of the terms ‘finds’ and ‘immediate’ introduce subjective elements into the offence in section 102(3C). Under section 102(3C) the relevant casino officer must have found a minor gambling or attempting to gamble and must immediately prevent further gambling activity.

However, a casino officer can only prevent an activity to the extent of that person’s authority in the casino and what the general law allows the officer to do. In contrast to statutes such as the Southbank Corporation Act 1989 and the Invasion of Privacy Act 1971, there is no power of arrest or detention in relation to an offence against section 102. An employee who immediately alerts a supervisor or a Safety and Security Officer has, in my view, taken action to prevent the person from gambling or attempting to gamble. If such an officer failed to bring the incident to the attention of a supervisor then they could be liable for an offence. In some instances a game could be stopped while a person’s identity is being checked.

It appears from paragraph 9 of your letter that your Committee believes that a casino employee could be found to have allowed a person to gamble where the supervisor had been informed and the supervisor had not taken action. On the contrary, in my view, the liability has shifted to the supervisor for failing to arrange for Safety and Security Officers to check the subject person’s identification. By immediately informing the supervisor, the casino employee (e.g. a dealer), given their level of authority, may have done all they can to not allow the person to gamble or attempt to gamble. Even if a dealer can prevent a minor from gambling at their table, dealer’s duties and responsibilities could preclude them from preventing a minor from gambling at other tables, gaming machines or other gambling products (e.g. keno or TAB).

Furthermore, the amendments to section 102 must be seen in the broader context of the unamended provision within section 102. In particular, if a minor gambles and wins, neither the minor nor anyone else on the minor’s behalf is entitled to the winnings. Likewise, no one has any claim against a casino for losses suffered by a minor. I believe the existing arrangements and those proposed by the Bill are sympathetic to the rights and liberties of all involved and are a measured response to the duty of care owed to minors in the unique environment of casino gambling.

Clause 18 Your Committee has also requested that I consider amending Clause 18 of the Bill to more specifically identify the acts or omissions to which it relates.

A penalty for section 101 of the Charitable and Non-Profit Gaming Act 1999 (Charitable and Non-Profit Gaming Act) was needed because some games can be conducted without a licence. The game may be over and the offending advertising may have ceased and, in these circumstances, a direction under section 102 serves no purpose. Nevertheless, damage to the public and the integrity of gaming may have occurred.

Categories 1 and 2 games (with gross revenues up to $20,000 per game) and category 4 games (promotional games – which can have substantial or very attractive prizes) are permitted without a licence.

Non-statutory guidelines have been issued. These guidelines cover such matters as cost of entry, prohibited prizes, terms and conditions, etc. Some of these matters become the subject matter of advertising. It should be noted that the Bill also includes a guideline making power for the chief executive.

I believe it is appropriate that there be an offence for a breach of the advertising standards (section101) and also an offence for failing to bring the advertising into line with the standards once a direction is made (section 102). Promotional games (trade promotions) and categories 1 and 2 games are conducted under an exemption to the law, and it is logical that the legislation should provide an incentive in the form of a potential penalty sanction to ensure compliance with the requirements that must be met by exempted parties.

Although the amendment is particularly targeted towards one-off games, where the prospect of being denied a future general gaming licence is of little concern to the operator, or when the game has ended and a section 102 direction is of no relevance, this does not constrain the scope of the provision. The department might also prosecute a serious offence under section 101 for a category 3 game (revenues generally greater than $20,000) if this was warranted and an appropriate sanction. The Treasury Department could also issue a direction in relation to the future conduct of a category 3 game.


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The Charitable and Non-Profit Gaming Act provides for audit programs and investigations and a hierarchy of sanctions to ensure compliance by licensed entities, including show-cause proceedings, directions to modify and licence suspension or cancellation. These sanctions are not applicable to the activities of one-off or very infrequent operators who are not licensed.

16. The committee notes the Treasurer’s comments.

Alert Digest No 11 of 2007 Transport Legislation Amendment Bill 2007

Chapter 13 Page 43

13. TRANSPORT LEGISLATION AMENDMENT BILL 2007

Background

1. The Honourable Paul Lucas MP introduced the bill into the Legislative Assembly on 6 September 2007. At that time, the Deputy Premier and Minister for Infrastructure and Planning was Minister for Transport.

2. The committee commented on this bill in its Alert Digest No 10 of 2007 at pages 8 to 23. The response from the current Minister for Transport, the Honourable John Mickel MP, is referred to in part below and reproduced in full in Appendix A to this Digest.

Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?

3. Section 4(3)(d) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation does not reverse the onus of proof in criminal proceedings without adequate justification.

4. A provision provides for the ‘reversal of the onus of proof’ where it declares the proof a particular matter to be a defence47 or when it refers to acts done without lawful justification or excuse, the proof of which lies on the accused.48

5. The committee referred to Parliament for its consideration whether there is adequate justification for the reversal of the onus of proof in criminal proceedings as provided in clauses 41, 50, 58 and 62.



Does the legislation confer power to enter premises and to search for or seize documents or other property without a duly issued warrant?

7. Section 4(3)(e) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.

8. The committee noted that clauses 35, 38, 41, 44, 48 and 50 confer powers to enter premises and to search for or seize documents or other property without a duly issued warrant. The committee referred

47 For example, see the Criminal Code ss12(3A), 17, 215(5), 216(4), 222(4) and 451(3).

48 See the Criminal Code ss 207, 230 and 236. See also Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 6th edn, 2004, LexisNexis Butterworths, [6.17].


Chapter 13 Page 44

to the Parliament the question whether these clauses have sufficient regard to rights and liberties of individuals.



10. Section 23(i) of the Legislative Standards Act 1992 requires that Explanatory Notes identify a bill which is substantially uniform or complementary with legislation of the Commonwealth or another State and provide a brief explanation of the legislative scheme.

11. Part 6 of the bill adopts model law provisions developed by a national statutory body in accordance with a national agreement and forms part of national scheme legislation.

12. The committee referred to Parliament the question of whether the bill has sufficient regard to the institution of Parliament.

Does the bill allow the delegation of legislative power only in appropriate cases and to appropriate persons?

13. Section 4(4)(a) of the Legislative Standards Act 1992 provides that whether a bill has sufficient regard to the institution of Parliament depends on whether, for example, the bill allows the delegation of legislative power only in appropriate cases and to appropriate persons.

14. The committee considered that amendments to be effected by the bill in respect of regulation-making powers appeared to be appropriate.

Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively?

15. Section 4(3)(g) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation does not affect rights and liberties, or impose obligations, retrospectively.

16. The committee referred to the Parliament the question whether the retrospective validations to be effected by clauses 86 and 90 to 92 justify a breach of fundamental legislative principles.



18. The committee referred to Parliament the question of whether clause 51 of the bill has sufficient regard to the rights and liberties of persons subject to it.

19. The Minister’s response to all the committee comments regarding the bill was:


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The Committee has noted that the Bill contains a number of potential breaches of fundamental legislative principals. It has also identified material in the accompanying explanatory notes justifying the potential breaches.

20. The committee notes the Minister’s response.

Alert Digest No 11 of 2007 Amendments to Bills

Chapter 13 Page 46

PART I - BILLS

SECTION C – AMENDMENTS TO BILLS49

(NO AMENDMENTS TO BILLS ARE REPORTED ON IN THIS ALERT DIGEST)

49 On 8 February 2007, Parliament resolved as follows:

The House confers upon the Scrutiny of Legislation Committee the function and discretion to examine and report to the House, if it so wishes, on the application of the Fundamental Legislative Principles to amendments to bills, whether or not the bill to which the amendments relate has received Royal Assent. (This resolution is identical to those passed by previous Parliaments on 7 November 2001 and 13 May 2004.)

In accordance with established practice, the committee reports on amendments to bills on the following basis:

• all proposed amendments of which prior notice has been given to the committee will be scrutinised and included in the report on the relevant bill in the Alert Digest, if time permits

• the committee will not normally attempt to scrutinise or report on amendments moved on the floor of the House, without reasonable prior notice, during debate on a bill

• the committee will ultimately scrutinise and report on all amendments, even where that cannot be done until after the bill has been passed by Parliament (or assented to), except where the amendment was defeated or the bill to which it relates was passed before the committee could report on the bill itself.

PART I - BILLS

APPENDIX A

MINISTERIAL CORRESPONDENCE

(in the electronic version of the Alert Digest, this correspondence is contained in a separate document)

PART II

SUBORDINATE LEGISLATION

Alert Digest No 10 of 2007 Index of Subordinate Legislation about which Committee has Concerns

Page 47

PART II – SUBORDINATE LEGISLATION

SECTION A – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCERNS50

Sub-Leg No. Name

Date concerns first

notified (dates are

approximate)

206 Statutory Instruments Amendment Regulation (No 2) 2007 30/10/07

50 Where the committee has concerns about a particular piece of subordinate legislation, or wishes to comment on a matter within its jurisdiction

raised by that subordinate legislation, it conveys its concerns or views directly to the relevant Minister in writing. The committee sometimes also tables a report to Parliament on its scrutiny of a particular piece of subordinate legislation.

Alert Digest No 11 of 2007 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

Page 48

PART II – SUBORDINATE LEGISLATION

SECTION B – INDEX OF SUBORDINATE LEGISLATION ABOUT WHICH COMMITTEE HAS CONCLUDED ITS INQUIRIES51 (INCLUDING LIST OF CORRESPONDENCE)

Sub-Leg No. Name

Date concerns first notified (dates are approximate)

(Copies of the correspondence mentioned above are contained in the Appendix which follows this Index)

51 This Index lists all subordinate legislation about which the committee, having written to the relevant Minister conveying its concerns or

commenting on a matter within its jurisdiction, has now concluded its inquiries. The nature of the committee’s concerns or views, and of the Minister’s responses, are apparent from the copy correspondence contained in the Appendix which follows this index.

Alert Digest No 11 of 2007 Index of Subordinate Legislation about which Committee has Concluded Its Inquiries

Page 49

This concludes the Scrutiny of Legislation Committee’s 11th report to Parliament in 2007.

The committee wishes to thank all departmental officers and ministerial staff for their assistance in providing information to the committee office on bills and subordinate legislation dealt with in this Digest.

Carryn Sullivan MP Chair

30 October 2007

Documents

SCRUTINY OF LEGISLATION COMMITTEE · 2015-11-19 · Ms Tamara Vitale, Executive Assistant Scrutiny of Legislation Committee Level 6, Parliamentary Annexe Alice Street Brisbane Qld