SCRUTINY OF LEGISLATION COMMITTEE - … … · scrutiny of legislation committee. ... section a - bills reported upon ... s ufficient regard to rights and liberties of individuals

Tabled and ordered to be printed Issue No. 13 of 1996

ALERT DIGEST

SCRUTINY OF LEGISLATION COMMITTEE

Alert Digest No.13 of 1996 Chairman’s Foreword

Chairman’s Foreword

In Part A of this Alert Digest, the Committee reports on the three Bills that were introducedon Tuesday 26 and Wednesday 27 November 1996:

• Workplace Relations Bill

• Industrial Organisations Bill

• WorkCover Queensland Bill

In accordance with Standing Order 241 debate on the Bills could resume on Tuesday andWednesday of the week following their tabling. As the last week in November and the firstweek in December are consecutive sitting weeks this has restricted the time available to theCommittee to scrutinise and report on these Bills.

The Committee therefore makes this report to Parliament with the caution that it is not as fullydeveloped as it may have been, given more time.

Tony Elliott MLAChairman

2 December 1996

Alert Digest No.13 of 1996 Chairman’s Foreword

Alert Digest No.13 of 1996 Table of Contents

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TABLE OF CONTENTS

SECTION A - BILLS REPORTED UPON.........................................................................1

1. INDUSTRIAL ORGANISATIONS BILL 1996..............................................................1

BACKGROUND .....................................................................................................................1SUFFICIENTLY CLEAR AND PRECISE DRAFTING? - CLAUSE 81 ...............................................1RIGHTS AND LIBERTIES ADVERSELY AFFECTED BY RETROSPECTIVITY OR OBLIGATIONS

RETROSPECTIVELY IMPOSED? - CLAUSES 154 - 158 (AND SIMILAR PROVISIONS IN CLAUSES

180 - 184, 232 - 284) ..........................................................................................................2REVERSAL OF ONUS OF PROOF IN CRIMINAL PROCEEDINGS WITHOUT ADEQUATE

JUSTIFICATION? - CLAUSE 247 .............................................................................................2SUFFICIENTLY CLEAR AND PRECISE DRAFTING? - CLAUSE 283 ..............................................4

2. WORKCOVER QUEENSLAND BILL 1996 .................................................................5

BACKGROUND .....................................................................................................................5CLEAR AND PRECISE DRAFTING? - CLAUSE 34 ......................................................................5SUFFICIENT REGARD TO THE RIGHTS AND LIBERTIES OF INDIVIDUALS? - CLAUSE 314.............6SUFFICIENT REGARD TO RIGHTS AND LIBERTIES OF INDIVIDUALS DEPENDENT ON

ADMINISTRATIVE POWER ONLY IF THE POWER IS SUBJECT TO APPROPRIATE REVIEW? - CLAUSE

456 .....................................................................................................................................7SUFFICIENCY OF EXPLANATORY NOTES?...............................................................................8OTHER FEATURES OF THE BILL DESERVING COMMENT FROM THE COMMITTEE - CLAUSE 530 .8

3. WORKPLACE RELATIONS BILL 1996 ......................................................................9

BACKGROUND .....................................................................................................................9SUFFICIENTLY CLEAR AND PRECISE DRAFTING? - CLAUSES 5 AND 15 ....................................9SUFFICIENT REGARD TO THE RIGHTS AND LIBERTIES OF INDIVIDUALS? (EQUALITY BEFORE THE

LAW AND CHILDREN’S RIGHTS) - CLAUSE 189 ....................................................................10CONSISTENT WITH PRINCIPLES OF NATURAL JUSTICE? - CLAUSE 220 ...................................11REVERSAL OF ONUS OF PROOF IN CRIMINAL PROCEEDINGS? - CLAUSES 246, 447 AND 452 ..13RIGHTS AND LIBERTIES ADVERSELY AFFECTED BY RETROSPECTIVITY OR OBLIGATIONS

RETROSPECTIVELY IMPOSED? - CLAUSE 250 AND SCHEDULE 4 ...........................................14POWER TO ENTER PREMISES AND TO SEARCH FOR OR SEIZE WITHOUT A WARRANT? - CLAUSE

381 ...................................................................................................................................15SUFFICIENT REGARD TO RIGHTS AND LIBERTIES OF INDIVIDUALS? - CLAUSE 385 .................16SUFFICIENT REGARD TO THE RIGHTS AND LIBERTIES OF INDIVIDUALS (RESTRICTION OF THE

FREEDOM OF EXPRESSION)? ...............................................................................................17ADDITIONAL COMMENTS ...................................................................................................18

SECTION B - COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE20

4. DRUGS MISUSE AMENDMENT BILL 1996 .............................................................20

BACKGROUND ...................................................................................................................20STAGED AUTOMATIC EXPIRY OF SUBORDINATE LEGISLATION - CLAUSE 14 (PROPOSED S. 60)20SUFFICIENCY OF EXPLANATORY NOTES?.............................................................................21

5. NATURAL RESOURCES LEGISLATION AMENDMENT BILL 1996 ...................22

BACKGROUND ...................................................................................................................22

Alert Digest No.13 of 1996 Table of Contents

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AMENDMENT OF AN ACT BY ANOTHER ACT (“HENRY VIII CLAUSE”) - CLAUSE 3 (PROPOSED

S. 4A) ...............................................................................................................................22GUIDELINES FOR REGULATORY IMPACT STATEMENTS- CLAUSE 8 (PROPOSED S. 25M) .........23RIGHTS AND LIBERTIES ADVERSELY AFFECTED BY RETROSPECTIVITY OR OBLIGATIONS

RETROSPECTIVELY IMPOSED? - CLAUSE 8 (PROPOSED SS. 25N AND 25O)............................23RIGHTS AND LIBERTIES ADVERSELY AFFECTED BY RETROSPECTIVITY OR OBLIGATIONS

RETROSPECTIVELY IMPOSED? - CLAUSE 11 (AMENDING EXISTING S. 51 AND INSERTING NEW

SS. 51(1) AND (2)) .............................................................................................................24

APPENDIX A - MINISTERIAL CORRESPONDENCE

APPENDIX B - TERMS OF REFERENCE

APPENDIX C - MEANING OF “FUNDAMENTAL LEGISLATIVE PRINCIPLES”

APPENDIX D - EXTRACTS FROM ILO CONVENTIONS

APPENDIX E - CUMULATIVE TABLE

Alert Digest No.13 of 1996 Industrial Organisations Bill 1996

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SECTION A - BILLS REPORTED UPON

1. INDUSTRIAL ORGANISATIONS BILL 1996

Background

1.1 This Bill was introduced on 26 November 1996 by the Honourable S SantoroMLA, Minister for Training and Industrial Relations and Minister assisting thePremier for Ethnic Affairs.

1.2 The principal objectives of the Bill, according to the explanatory notes, are to:

• encourage the democratic control of industrial organisations;

• encourage members of industrial organisations to participate in theirorganisation’s affairs;

• encourage the efficient management of industrial organisations;

• ensure freedom of association, including the rights of employees andemployers to join an industrial organisation or association, or not join anorganisation or association;

• ensure employee and employer organisations are representative of andaccountable to their members; and

• establish consistency with certain provisions of the CommonwealthWorkplace Relations Act 1996.

Sufficiently clear and precise drafting?1 - Clause 81

1.3 Clause 81 of the Bill provides that one of the criteria for membership of anindustrial organisation is that a person is not of general bad character.

1.4 The explanatory notes state that:

This provision is in the Industrial Relations Act 1990 and is considered tobe a reasonable requirement for membership of an industrial organisation.

1.5 The Committee observes that the Industrial Relations Act 1990 was enacted beforethe Legislative Standards Act 1992. It would appear to the Committee that thelanguage used in the Industrial Relations Act may not necessarily reflect thefundamental legislative principles referred to by the Legislative Standards Act.

1.6 The Committee is of the view that, although the phrase not of general badcharacter is used in s. 379(c) of the Industrial Relations Act 1990, it does not

1 Legislative Standards Act 1992 s. 4(3)(k)


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import the necessary clarity and precision required by s. 4(3)(k) of the LegislativeStandards Act to enable a proper determination of a person’s character.

1.7 The Committee therefore refers to Parliament the question of whether a moreprecise form of words is desirable under these circumstances.

Rights and liberties adversely affected by retrospectivity or obligationsretrospectively imposed?2 - Clauses 154 - 158 (and similar provisions in clauses 180 -184, 232 - 284)

1.8 Clauses 154 - 158 contain provisions designed to validate certain actions (relevantacts) done before or after the commencement of the Bill relating to amalgamationsof organisations. The Committee notes that these provisions are modelled on ss.437 - 438, 468 - 470 of the Industrial Relations Act 1990. A relevant act done ingood faith in connection with an amalgamation is stated to be valid despite aninvalidity discovered later. However, a court or commission order about a relevantact made before the commencement of the Bill is not affected. Further, if fouryears have elapsed since the relevant act, the act is taken to have been done underthe relevant part of the Bill and under the organisation’s rule although an order,judgement, decree, declaration, direction, verdict, decision or a similar act of acourt or commission about the relevant act made before the expiry of that fouryears is not affected.

1.9 Similar provisions are found in clauses 180 - 184, and 232 - 284. These provisionsrelate to relevant acts done in relation to withdrawals of constituent parts fromamalgamated organisations and to relevant acts done by persons purporting to actas a collective body of an organisation or purporting to hold office and exercisepower under an organisation’s rules.

1.10 These provisions apply to relevant acts done before or after the commencement ofthe Bill. The Committee always takes care in examining clauses with retrospectiveeffect to ensure that no rights and liberties are adversely affected or obligationsimposed retrospectively, and reports to Parliament on the results of such scrutiny.

1.11 The Committee does not object to curative legislation per se. The Committeenotes that no explanation has been given on the necessity for theseretrospective provisions and it therefore requests the Minister to provideinformation in relation thereto.

1.12 The Committee, also, seeks information from the Minister as to whether heenvisages that the rights and liberties of individuals may be adversely affectedor obligations retrospectively imposed by these provisions.

Reversal of onus of proof in criminal proceedings without adequate justification?3 -Clause 247


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1.13 Clause 247 provides that:

(1) This section applies if -

(a) in an application under this division relating to a person’sor an industrial association’s conduct, it is alleged that theconduct was, or is being, carried out for a particular reasonor with a particular intent; and

(b) for the person or industrial association to carry out theconduct for that reason or with that intent would constitute acontravention of this part.

(2) It is presumed, in proceedings under this division arising from theapplication, that the conduct was, or is being, carried out for thatreason or with that intent, unless the person or industrial associationproves otherwise.

1.14 The division of the Bill in question contains provisions designed to ensure thatpersons are free to join or not join industrial organisations of their choice and thatpersons are not discriminated against because they are or are not members orofficers of an organisation. The court may impose a penalty on a person orindustrial association whose conduct contravened or is contravening the provisionin question.

1.15 According to the explanatory notes, the effect of clause 247 is that:

... if it is alleged that conduct was or is carried out for a particular purposeand to do so would be in contravention of this part, then it is presumed tobe the case unless proven to the contrary.

1.16 The Committee is concerned that clause 247 effectively reverses the onus of proofwith respect to these prohibitions. Under criminal law, a person can usually not befound guilty of an offence without having the mens rea (guilty mind or intent) andactus reus (prohibited Act or omission) of the offence proven beyond reasonabledoubt.

1.17 It would therefore appear to the Committee that, by virtue of clause 247, a personwho is alleged to have committed a prohibited act will be presumed guilty unlessthis person can prove otherwise.

1.18 This point raises a further concern in relation to this clause - the reversed onuseffectively presumes guilt of an offence on the basis of an allegation made (see cl.247(1)(a)).

2 Legislative Standards Act 1992 s. 4(3)(g)3 Legislative Standards Act 1992 s. 4(3)(d)


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1.19 The Committee is of the view that cl. 247 effectively reverses the onus of proofin criminal proceedings and therefore breaches the fundamental legislativeprinciples.

1.20 There does not appear to be any justification for this reversal of onus in theexplanatory notes or the Second Reading Speech. The Committee thereforerequests that the Minister provide information on the justification for thisprovision.

1.21 The Committee refers the question of whether there is sufficient justificationfor this reversal of onus of proof to Parliament for its consideration.

1.22 In the absence of sufficient justification for this breach of a fundamentallegislative principle the Committee recommends the removal of cl. 247.

Sufficiently clear and precise drafting?4 - Clause 283

1.23 Some clauses in the Bill prohibit the making of false or misleading statements thatthe person knows are false or misleading (for example, cls. 204, 213 and 231).Clause 283 of the Bill, however, provides:

283. A reference in this Act to a person making a statement knowing it isfalse or misleading in a material particular includes a reference tothe person making the statement being reckless about whether thestatement is false or misleading in a material particular.

1.24 Clause 283 therefore alters the standard applicable to false and misleadingstatements from knowingly to recklessly.

1.25 It is arguable that the drafting of sections on false and misleading statements wouldbe enhanced by having their meaning directly reflected in the words of the sectionrather than by being further defined by some clause elsewhere in the Act. It wouldappear that the necessary intention could easily have been incorporated within thewording of the necessary clauses, by relatively simple amendments.

1.26 The Committee is of the view that the insertion of one clause to change theeffect of several other clauses is not consistent with the clear and precisedrafting standards anticipated in the Legislative Standards Act. TheCommittee requests that the Minister consider incorporating the effect of cl.283 directly into the provisions where a change of standard applicable to falseand misleading statements is intended.

4 Legislative Standards Act 1992 s. 4(3)(k)

Alert Digest No.13 of 1996 WorkCover Queensland Bill 1996

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2. WORKCOVER QUEENSLAND BILL 1996

Background

2.1 This Bill was introduced on 27 November 1996 by the Honourable S Santoro,Minister for Training and Industrial Relations and Assisting the Premier for EthnicAffairs.

2.2 The Bill rewrites the workers’ compensation legislation, with the aim being toaddress the problems identified by the Commission of Inquiry into Workers’Compensation and Related Matters in Queensland (the Kennedy Inquiry).

2.3 The explanatory notes state that the Bill:

• streamlines the procedure for making statutory and common law claimsfor workers’ compensation;

• places an obligation on employers and workers to participate in effectiverehabilitation and return to work programs;

• provides modern, flexible insurance arrangements for Queenslandemployers; and

• creates a new statutory body, WorkCover Queensland, to regulate andadminister workers’ compensation in Queensland.

Clear and precise drafting?5 - Clause 34

2.4 The Committee notes that the change in the definition of injury from referring to asignificant contributory factor to the injury, to the major significant factor causingthe injury omits reference to “contributory” in the new formulation. This may leadto the view that contributory factors to injury are not factors in the newformulation.

2.5 In his Second Reading Speech, however, the Minister commented as follows on thenew definition:

The new definition will require the link between employment and the injuryto be stronger. This is intended to ensure that employers are only heldliable to the extent that their employment of the worker contributed to theinjury, or aggravation or acceleration of a pre-existing non-work relatedcondition.

2.6 This reflects a clear intention that the new definition does include factors in theemployment of a worker contributing to their injury.

5 Legislative Standards Act s. 4(3)(k)


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2.7 In view of the omission of the word “contributory” from the new definition of“injury”, some ambiguity may be created as to whether contributory factorsin employment are still to be regarded as part of the definition. Although thewords of the Second Reading Speech clarify the issue, the Committee requeststhat the Minister consider an amendment to the definition of injury to clearlyreflect this fact.

Sufficient regard to the rights and liberties of individuals?6 - Clause 314

2.8 Clause 314 makes provision for the reduction of damages because of contributorynegligence mandatory. The effect of cl. 314 is succinctly described in theexplanatory notes:

Reduction of damages because of contributory negligence

Clause 314 requires that the court must make a finding of contributorynegligence in the circumstances specified in the clause.

The clause requires that the damages must be reduced if the worker’sinjuries were caused or contributed to by one or more of the specifiedcircumstances. The damages recoverable by the worker must be reducedby at least 25% for each of the specified circumstances causing orcontributing to the worker’s injuries.

2.9 The Committee therefore notes that cl. 314(1) and subsection (3) have the potentialto eliminate a worker’s right to any compensation. This result may come aboutbecause some of the grounds for contributory negligence in cl. 314(1) overlap andyet subsection (3) makes it compulsory to reduce damages by 25% for eachground. It would appear therefore that even if the employer and employmentconditions were the major significant factor causing the injury, the worker mightlose a disproportionate percentage or even all rights to compensation.

2.10 The concern in relation to cl. 314 is essentially generated by the mandatory andcumulative minima set in cl. 314(3). It does not provide for any judicial discretion inmaking compensation awards. The Committee also notes that there do not appearto be any similar counterbalancing provisions for the contributory negligence ofemployers.

2.11 The Committee is concerned about the cumulative affect of potentiallyoverlapping grounds for contributory negligence of the worker set out in cl.314(1) and about the mandatory reduction of an award of damages by 25%for each of the grounds of contributory negligence set out in subsection (3).

2.12 The Committee refers its concerns to Parliament for its consideration.

6 Legislative Standards Act s. 4(2)(a)


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Sufficient regard to rights and liberties of individuals dependent on administrativepower only if the power is subject to appropriate review?7 - Clause 456

2.13 Clause 456 provides for the decisions of tribunals to be final, with no access tofurther appeal against an adverse decision. It is uncommon to have provisions in aBill stipulating that such decisions are unreviewable. Clause 456 states:

456. A tribunal’s decision about an application for compensation referredto it is final and cannot be questioned in a proceeding before a tribunal ora court, except under section 454.8

2.14 This point was addressed in the part of the explanatory notes to the Bill assessingthe consistency with fundamental legislative principles. The section dealing with thereasoning behind these changes is extracted below and is particularly commended atparagraph 2.16 of this chapter.

The area of this Bill which could be seen as inconsistent with fundamentallegislative principles is in relation to medical assessment tribunaldecisions.

A number of clauses relate to the finality of decisions of medicalassessment tribunals and review panels with no right of further appeal.Medical assessment tribunals, consisting of three eminent independentspecialists from relevant medical areas, and review panels comprising twotribunal members, are considered appropriate for the making of anultimate medical decision.

The tribunals were originally introduced as a body of final determinationof medical matters because of delays in determinations and settlements. AsSir Gordon Chalk stated, when Treasurer of Queensland, during thedebate about introducing further tribunals in 1967:

To whom would the appeal lie? Obviously it could only be toanother Medical Tribunal; it could not be to a lay Tribunal... If wealready have the advice of three eminent Physicians or men [sic]of other professional appropriate status, to whom could there bean appeal?

Therefore, while these provisions may be inconsistent with fundamentallegislative principles, it is considered that the role and authority of medicalassessment tribunals and review panels are appropriate and equitable.

2.15 The question of whether this absence of further review has sufficient regardto the rights and liberties of affected individuals is referred to Parliament forits consideration.

7 Legislative Standards Act s. 4(3)(a)8 Section 454 (Further reference on fresh evidence)


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Sufficiency of explanatory notes?9

2.16 The explanatory notes discussion of fundamental legislative principles included adetailed justification for the limitation of appeal rights against medical tribunals.Whether or not the Parliament agrees that the argument justifies the limitation (andhence that the Bill pays sufficient regard to rights and liberties) the Committeecommends the drafters of the explanatory notes for an exemplary note discussingthe issue.

2.17 The Committee brings these comments to the attention of the Minister.

Other features of the Bill deserving comment from the Committee - Clause 530

2.18 Clause 530 provides the regulation making powers for the Bill. It provides thatregulations may be made for anything specified in schedule 1. Schedule 1 thencomprehensively sets out matters to be dealt with. The Committee notes that thereare no transitional regulation making powers in the Bill despite its complexity andsignificance.

2.19 The Committee is pleased to note the care and attention taken during the draft ofthese sections which grant regulation making powers.

2.20 The Committee commends the Minister and the Drafters of the legislation ongranting carefully drafted regulation making powers without resort toextensive transitional arrangements.

9 Parliamentary Committees Act s. 22(2)(a)

Alert Digest No.13 of 1996 Workplace Relations Bill 1996

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3. WORKPLACE RELATIONS BILL 1996

Background

3.1 This Bill was introduced on 26 November 1996 by the Honourable S Santoro,Minister for Training and Industrial Relations and Assisting the Premier for EthnicAffairs.

3.2 The principal objective of the Bill is to reform the system of workplace relations by:

• allowing employers, employees and unions to enter into workplacearrangements best suited to their needs;

• placing an emphasis on the fairness of individual and collectiveworkplace agreements;

• maintaining an award safety net for those who remain on the awardsystem; and

• providing a new unfair dismissal regime.

Sufficiently clear and precise drafting?10 - Clauses 5 and 15

• Clause 5 - References to making false or misleading statements

3.3 Some clauses in the Bill prohibit the making of false or misleading statements thatthe person knows are false or misleading (for example, cls. 105(2) and 441(1))Clause 5 of the Bill, however, provides:

References to making false or misleading statements

5. A reference to a person making a statement knowing that it is false ormisleading in a material particular includes a reference to the personmaking the statement being reckless about whether the statement isfalse or misleading in a material particular.

3.4 Clause 5 therefore alters the standard applicable to false and misleading statementsfrom knowingly to recklessly. It would appear that cl. 5 alters the meaning of thestandard in cl. 441, however, whether it also applies to the standard in cl. 105 is notas clear as there is no reference to a material particular in cl. 105.

3.5 It is arguable that the drafting of sections on false and misleading statements wouldbe enhanced by having their meaning directly reflected in the words of the sectionrather than by being further defined by some clause elsewhere in the Act. It wouldappear that the necessary intention could easily have been incorporated within thewording of the necessary clauses, by relatively simple amendments.

10 Legislative Standards Act s. 4(3)(k)


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3.6 The Committee is of the view that the insertion of one clause to change theeffect of several other clauses is not consistent with the clear and precisedrafting standards anticipated in the Legislative Standards Act. TheCommittee requests that the Minister consider incorporating the effect of cl. 5directly into the provisions where a change of standard applicable to false andmisleading statements is intended.

• Clause 15 - Valid majority

3.7 Some clauses in the Bill, for example cl. 15, use phrases which appear to betautologous. For example, cl. 15 contains the following phrases:

• make or genuinely make;

• approve or genuinely approve;

• decide or genuinely decide.

3.8 It seems that there is an intention to distinguish between the two parts of eachphrase, however, the intended distinction is not clear from the words used.

3.9 The Committee is of the view that phrases like those referred to in the dotpoints above are insufficiently clear and imprecisely drafted. The Committeerequests that the Minister consider either clarifying the meaning of eachelement of each phrase or replacing one element with words which moreclearly express the intended meaning.

Sufficient regard to the rights and liberties of individuals?11 (equality before the lawand children’s rights) - Clause 189

3.10 The Committee notes that the part of the Bill dealing with parental leave recognisesthe importance thereof and makes substantial provisions for both maternity andpaternity leave, including the conditions of entitlement for each. Both divisions referto matters, for example, a person’s pregnancy or the birth of a person’s child or aperson’s spouse’s child. This necessarily restricts these provisions to theentitlements enjoyed by parents in relation to their natural children. Clause 189which deals with adoption leave provides that:

189. A regulation may provide for employers to give employees unpaidadoption leave.

3.11 Persons adopting children therefore do not have their entitlements to leave asprimary care givers protected on the same legislative basis as parents with respectto their natural children. The distinction between natural children and adoptivechildren has been phased out in other legislation.



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3.12 The Committee believes that the entitlements and conditions of parental leaveapplicable to adoptive parents should have the same standing at law as thoseapplicable to natural parents . The Committee is therefore of the view thatadoption leave should be set out in the Act and not in regulations.

Consistent with principles of natural justice?12 - Clause 220

3.13 In his second reading speech, the Minister stated:

A fair and simple process of unfair dismissals based on the principle of a“fair go all around” is introduced under this Bill. This will mean we havea workable process which provides a proper balance between the merits ofthe case and questions of procedural fairness when considering whether adismissal is unlawful. This will avoid the types of cases seen in recentyears where the emphasis on procedural requirements has been such as toovershadow the fact that the employment has been terminated for what allreasonable people would believe to be a valid reason.

3.14 In “balancing” procedural fairness (as natural justice is now called) against “themerits of the case”, the potential conflict with the FLP referred to in 4(3)(b) mustbe considered. If procedural fairness is to be “balanced” with other matters,Parliament needs to decide whether limitations of natural justice are justified by the“balancing” features to determine whether sufficient regard has been given tonatural justice.

3.15 The explanatory notes indicate that affording employees procedural fairness inrelation to a dismissal:

will be relevant to establishing whether or not a dismissal is harsh, unjustor unreasonable. However, as procedural fairness is to be only one factorto be considered along with other relevant factors, the intention is thatundue weight will not be given to procedural defects in a dismissal.

3.16 The new provisions in the Bill are very brief.

220. In deciding whether a dismissal was harsh, unjust or unreasonable,the commission must consider—

(a) whether the employee was notified of the reason for dismissal;and

(b) whether the dismissal related to—

(i) the operational requirements of the employer’sundertaking, establishment or service; or

(ii) the employee’s conduct, capacity or performance; and

12 Legislative Standards Act s. 4(3)(b)


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(c) if the dismissal relates to the employee’s conduct, capacity orperformance—

(i) whether the employee had been warned about theconduct, capacity or performance; or

(ii) whether the employee was given an opportunity torespond to the allegation about the conduct, capacity orperformance; and

(d) any other matters the commission considers relevant.

3.17 Given the brevity of these provisions, it would be difficult for an employer to knowwith any degree of certainty, what procedures they should follow in order to fairlyconsider issues concerning the termination of staff. Neither would it be easy for alawyer to adequately advise clients.

3.18 Many small businesses may be unaware of the appropriate processes and feelaggrieved when they receive an adverse dismissal decision. Some may feel that theprocedures are inappropriate.

3.19 Fair procedures are not instituted to frustrate the decisions of employers. Theestablishment, promulgation and review of procedures have a number of importantadvantages:

• Employers know in advance minimum procedural requirements that willensure that their decisions are not overturned;

• Employers make better decisions with regard to their staff;

• Dismissed employees will have fewer grievances against theiremployers;

• Other employees have greater confidence in the fair exercise of theiremployer's powers, leading to improved staff morale; and

• Employees understand their rights and responsibilities.

3.20 The law is not just about results but about processes - a key element of "the rule oflaw".

3.21 If the processes are unwieldy or inappropriate, they can and should be changed. Ifthey are too vague they can be better specified. However, where key players areunaware of the appropriate processes, it is generally better to inform them of thoseprocesses than regularly to ignore them.

3.22 The Committee is of the view that procedural fairness is an importantfundamental legislative principle and that it is important for persons to beaware of the appropriate applicable processes.


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3.23 The Committee refers to Parliament the question of whether cl. 220 hassufficient regard to the fundamental legislative principle requiringconsistency with principles of natural justice.

Reversal of onus of proof in criminal proceedings?13 - Clauses 246, 447 and 452

3.24 Clauses 246(3), 447(3) and 452(1) would appear to have the effect of reversing theonus of proof in a criminal proceeding.

3.25 According to the explanatory notes cl. 246 aims to prevent the prejudice of personsfor failing to participate in a strike or lockout (maximum penalty 40 penalty unitsor $3000). Clause 246(3) then provides:

(3) If, in a proceeding for an offence under subsection (1)(b) or (2)(b), itis proved that an imposition or threat was made on or to a person whodid not take part in a strike or lockout, it is to be presumed that thereason for the imposition or threat is the failure to take part, unlessthe contrary is proved.

3.26 Clause 447 makes it an offence for a person to publish or cause to be published astatement which can be interpreted to state that a person is willing to either employa person on reduced wages or be employed on reduced wages. Subsection (3) ofthat section then provides:

(3) A proprietor of a newspaper or advertising medium is taken tohave published the statement with knowledge of is unlawfulness, unlessthe proprietor shows that the proprietor

(a) had taken all reasonable precautions against committingthe offence; and

(b) had reasonable grounds to believe, and did believe, thepublication to be lawful; and

(c) had no reason to suspect the publication was unlawful.

3.27 Clause 452 also appears to effectively reverse the onus of proof:

452.(1) If a corporation commits an offence under section 396, 433 or44514, the executive officers of the corporation

(a) are also taken to have committed the offence; and

(b) are liable to the prescribed penalty and any other order themagistrate may make under those sections.

13 Legislative Standards Act s. 4(3)(d)14 Section 396 (Employee register), 433 (Contributing occupational superannuation) or 445 (Non-payment of

wages)


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“executive officer”, of a corporation, means a person who is concernedwith, or takes part in, the corporation’s management, whether or not

(a) the person is a director; or

(b) the person’s position is given the name of executive officer.

3.28 The Committee is of the view that these clauses effectively reverse the onus ofproof with respect to the offence deemed to be committed. Under the criminal law,a person can usually not be found guilty of an offence without having the elementsof mens rea (guilty mind or intent) and actus reus (prohibited Act or omission) ofthe offence proven beyond reasonable doubt.

3.29 Although two of the clauses in question provide defences for the person concerned,the affected person will be presumed guilty unless they can raise an effectivedefence under the relevant section.

3.30 The example given in s. 4(3)(d) of the Legislative Standards Act of sufficientregard having been had to rights and liberties of individuals refers to “adequatejustification” for reversing such an onus of proof. There appears to be nothing inthe explanatory notes or the second reading speech which specifically providesinformation on the justification on the reversals of onus.

3.31 With respect to cl. 452(3) which contains the definition of “executive officer”, thisdefinition is extremely broad. The Committee appreciates the difficulties ofdetermining responsibility for liability in corporations. However, to reverse the onusof proof for such individuals is a drastic step. This is even more so given thenumber of persons potentially caught. The Committee therefore recognises thatthere may be a need for having the liability extend to individuals, however theindividuals caught within the definition “executive officers” are extremely broad.

3.32 With respect to the reversal of onus of proof, the Committee is of the viewthat Parliament will not be in a position to effectively assess the sufficiency ofthe justification for these abrogations of legislative principle without furtherinformation on point.

3.33 The Committee therefore requests that the Minister provide information onthe reasons for these reversals of onus. The Committee refers to Parliamentthe question of whether cls. 447 and 452 contain justifiable reversals of onusof proof.

Rights and liberties adversely affected by retrospectivity or obligationsretrospectively imposed?15 - Clause 250 and Schedule 4

• Clause 250 - Commission not to deal with claims for payments for strikes

15 Legislative Standards Act s. 4(3)(g)


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3.34 Clause 250 of the Bill provides as follows:

Commission not to deal with claims for payments for strikes

250.(1) The commission can not deal with a claim for the making of apayment to employees for a period when the employees engage in a strike.

(2) Subsection (1) applies to a claim for a period before or after

(a) the making of the claim; or

(b) the commencement of this section.

3.35 Subsection (2) clearly provides that the section applies to a claim for payment for aperiod before the commencement of this section. The effect of the section istherefore retrospective.

3.36 The Committee always takes care in examining clauses with potentiallyretrospective effect to ensure that no rights and liberties are adversely affected orobligations imposed retrospectively. In the circumstances of this provision, it wouldappear that the retrospectivity could have an adverse effect on individuals who mayhave made a claim for payment before the commencement of this clause.

3.37 The Committee notes that cl. 250 has retrospective effect and has thepotential to have an adverse effect on individuals. The Committee thereforerequests information from the Minister on whether individuals will beadversely affected by this clause.

3.38 The Committee refers the question of whether the retrospective (andpotentially adverse) clause has sufficient regard to the rights and liberties ofindividuals to Parliament for its consideration.

• Schedule 4 - Anzac Day Act 1995

3.39 The Bill corrects an error in the drafting of the Anzac Day Act amending theproportion of the mandatory payment by Treasury to the Anzac Day trust from thetotal amount of annual fees paid for general licences under the Liquor Act 1992.

3.40 The Committee recognises that there are some occasions on which curativeretrospective legislation, without significant effect on the rights and liberties ofindividuals, may be justified to correct unintended legislative errors.

3.41 The Committee has no further comment with respect to this clause inschedule 4.

Power to enter premises and to search for or seize without a warrant?16 - Clause 381

16 Legislative Standards Act s. 4(3)(e)


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3.42 Clause 381 of the Bill provides for an inspector to enter, without the occupiersconsent, either:

• a public place (presumably at any time); or

• a work place when that workplace is:

− open for business; or

− otherwise open for entry.

3.43 Once an inspector gains entry to a place pursuant to s. 381 the inspector haspowers to test, inspect, photograph, take samples and copy documents as set out incl. 382. Inspectors are given these powers to monitor and enforce compliance withthe Bill.

3.44 There are no provisions for entry being gained by a means of a warrant issued by ajudicial officer. Where such provisions exist in other legislation there are usuallysubstantial requirements for justifying the need to gain entry and safeguards on theexecution of the warrant.

3.45 Clause 381 therefore allows entry to a public place or a workplace without consentand without first obtaining a warrant. There is also no requirement to providenotice to the occupier. The Committee does, however, recognise that under somecircumstances a requirement to provide notice could be counter productive to thepurpose of an inspection.

3.46 In view of the powers which an inspector has once entry has been gained and inview of the fact that a person not reasonably providing assistance to those carryingout powers commits an offence (maximum penalty $3000 fine) there appears to bea need for further safeguards.

3.47 The Committee notes that fact that inspectors have broad powers once theyhave gained entry to a public place or a work place without consent of theoccupier. The Committee also notes that there is no provision for gainingentry to places by means of a warrant which would require the need for entryto be substantially justified and subject to safeguards.

3.48 In the Committee’s view it would therefore appear reasonable that suchpowers of entry should be subject to further safeguards to ensure that theentry is justified under the circumstances and to provide safeguards foroccupiers.

3.49 The Committee refers these concerns to Parliament for its consideration.

Sufficient regard to rights and liberties of individuals?17 - Clause 385

3.50 Clause 385 provides that an inspector has the power to require a person to statetheir name and address for the purposes of the Bill. A person is required to comply



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with such a requirement unless they have a reasonable excuse (a maximum penaltyof 40 penalty units or $3000 applies).

3.51 The Committee notes that powers to require name and address are usually onlyavailable if a person is found committing an offence or is reasonably suspected ofcommitting an offence. In circumstances of cl. 385, however, it appears that thepower is very broad and not restricted to a particular purpose.

3.52 There appears to be no justification for this broad power in either the explanatorynotes or the Second Reading Speech.

3.53 The Committee requests the Minister to provide information in relation tothis broad power to require name and address. In the absence of sufficientjustification, the Committee requests that this power be restricted or subjectto further safeguards.

3.54 The Committee refers to Parliament the question of whether this power torequire name and address from persons is justifiably broad or whetherfurther restrictions on the power or safeguard are desirable.

Sufficient regard to the rights and liberties of individuals (restriction of the freedomof expression)?18

3.55 Clause 447 makes it an offence for a person to publish or cause to be published astatement which can be interpreted to state that a person is willing to either employa person on reduced wages or be employed on reduced wages. In addition to thecomments made in the section above the reversal of onus of proof in cl. 447, theCommittee is concerned that the effect of this section is a restriction of the freedomof expression.

3.56 The right to freedom of expression has long been observed in Australia. The factthat it should not be regarded as an absolute right is clearly reflected in article 19 ofthe International Covenant on Civil and Political Rights (ICCPR) which, inparagraphs 2 and 3, provides:

2. Everyone shall have the right to freedom of expression; this right shallinclude freedom to seek, receive and impart information and ideas of allkinds, regardless of frontiers, either orally, in writing or in print, in theform of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this articlecarries with it special duties and responsibilities. It may therefore besubject to certain restrictions, but these shall only be such as areprovided by law and are necessary:

(a) For respect of the rights or reputations of others;



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(b) For the protection of national security or of a public order (ordrepublic) or of public health or morals.19

3.57 Clearly it is internationally accepted that the freedom of expression is not anabsolute right and may be subject to restrictions.

3.58 The Committee is concerned, however, that the restriction imposed on publishedmaterial by cl. 447 goes beyond limiting material contained in advertising materialsto potentially restricting editorial comment in newspapers.

3.59 The Committee is concerned about the restriction imposed on the freedom ofexpression by cl. 447.

3.60 The Committee refers this concern to Parliament for its consideration.

Additional comments

• Clause 98(1)(b)

3.61 The Committee notes that s. 98(1)(b) was altered before it was introduced into theHouse. It would appear, however, that a similar alteration has not been carried outwith respect to the explanatory note. To avoid any possible ambiguity, theCommittee requests that the Minister clarify the meaning of the explanatory noteswith retrospect to this clause.

• Clauses 150 and 473

3.62 The Committee notes that the Bill contains some references to meanings for wordsor phrases contained in external documents. In cl. 150(2), for example, there is areference to expressions used in the Bill having the same meaning as when they areused in the Equal Remuneration Convention. Further, cl. 473(2) refers to a meaningcontained in a section of the repealed Act.

3.63 The Committee is of the view that wherever possible, definitions should becontained within the Bills themselves rather than in external documents to whichpersons using the legislation may not have access.

19 O’Neil, N and Handley, R, op. Cit., p. 243


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Alert Digest No.13 of 1996 Drugs Misuse Amendment Bill 1996

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SECTION B - COMMITTEE RESPONSE TO MINISTERIALCORRESPONDENCE

4. DRUGS MISUSE AMENDMENT BILL 1996

Background

4.1 This Bill was introduced on 30 October 1996 by the Honourable T R CooperMLA, Minister for Police and Corrective Services and Minister for Racing. ThisBill was passed on 14 November 1996 unamended and was assented to on 15November 1996.

4.2 The Committee commented on the Bill at pages 13 - 16 of its Alert Digest No. 11of 1996. The Minister’s response to the issues raised by the Committee isreproduced in full in Appendix A of this Alert Digest and is referred to (in part)below.

Staged automatic expiry of subordinate legislation20 - Clause 14 (proposed s. 60)

4.3 The Committee expressed concern about proposed s. 60 of the Bill which exemptsthe Drugs Misuse Regulation 1987 from the staged automatic expiry provisions ofPart 7 of the Statutory Instruments Act 1992. In the Committee’s view, theexemptions from expiry in s. 56 of the Statutory Instruments Act are deliberatelyrestrictive to achieve the aim of the Part and that s. 56 does not anticipateexemptions being granted in other legislation. The Committee sought informationfrom the Minister on the reasons for the exclusion.

4.4 The Committee notes the following response (in part) from the Minister:

Notwithstanding your arguments to the contrary, I would submit that it isvital to exempt this regulation from the staged expiry provisions.

One of the major purposes of the Drugs Misuse Amendment Bill is to movefrom an Act to a Regulation the schedules which identify dangerous drugs.The purpose in doing so is to create an ability to add newly identifiedsubstances to the schedules as a matter of urgency. ...

However, as you point out, in the absence of an exemption, subordinatelegislation would automatically expire on its tenth anniversary.

One of the major reasons this Bill was brought into existence was becausethe schedules could not be easily reviewed in their present location. Asdiscussed above, the purpose of the staged expiry provisions is to ensurethe constant review of subordinate legislation. I submit that the amendmentsought will achieve this by allowing the schedules to be reviewed quicklyand regularly. The proposed exemption will not affect this ability.

20 Parliamentary Committees Act s. 22(2)(b)

Alert Digest No.13 of 1996 Drugs Misuse Amendment Bill 1996

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…. In attempting to meet the aim of avoiding amendments to the principalAct, the available options are either amending the Regulation or creating a“Henry VIII” clause.

If the Regulation is subject to automatic expiry the efficacy of adopting thiscourse is bought into question.

4.5 The Committee thanks the Minister for the information provided butmaintains the views which it previously expressed on this point.

Sufficiency of explanatory notes?

4.6 The Committee was of the view that some of the content requirements for anexplanatory note as prescribed by s. 23 of the Legislative Standards Act 1992 werenot adhered to in this case.

4.7 In response, the Minister provided the following information:

The insertion of the new section 62 was not mentioned in the notes becauseit was inserted into the Bill after the notes were submitted for printing.During the final editing of the Bill the concern was raised that theamendments to section 13 (clause 9 of the Bill) might have been construedto have some effect on offences committed prior to the commencement ofthe amending Act.

To clarify that no such effect was intended, and to ensure that the sectioncould not be construed to have a retrospective effect, the new section 62(clause 14 of Bill) was inserted.

You refer also to the omission of an assessment of the administrative coststo Government of implementing the Bill. The omission was an oversightand I apologise for any inconvenience this may have caused. I also advisethat no administrative costs have been identified in the implementation orongoing administration of the Bill.

4.8 The Committee thanks the Minister for the information provided.

Alert Digest No.13 of 1996 Natural Resources Legislation Amendment Bill 1996

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5. NATURAL RESOURCES LEGISLATION AMENDMENT BILL 1996

Background

5.1 This Bill was introduced on 30 October 1996 by the Honourable H W T HobbsMLA, Minister for Natural Resources. This Bill was passed on 29 November1996. At the date of publication of this Digest, this Bill has not been assented to.

5.2 The Committee commented on the Bill at pages 17 - 22 of its Alert Digest No. 11of 1996. A response from the Minister is referred to, in part, below and isreproduced in full in Appendix A of this Digest.

Amendment of an Act by another Act (“Henry VIII clause”) 21- Clause 3 (proposed s.4A)

5.3 The Committee considered that proposed s. 4A appeared to be a “Henry VIII”clause because it allows a regulation to abolish the Burdekin River ImprovementArea and Trust as constituted by s. 4 of the River Improvement Trust Act 1940.The Committee was of the view that its concerns would be overcome by theremoval of s. 4 of the River Improvement Trust Act and its relocation intoregulations.

5.4 The following response was provided by the Minister (in part):

The proposed section 4A does allow for the Burdekin river improvementarea and trust to be abolished for the purpose of amalgamating withanother area and trust. However, the name Burdekin river improvementarea and trust would be required to be the name to a new area becausethose names have been provided for specifically, under the legislation.

However, to clarify matters I propose to make amendments in committee toensure that the Burdekin River Improvement Area and Burdekin RiverImprovement Trust remain and at the same time allow for the abolition ofa river improvement area and trust by regulation and the amalgamation ofa river improvement area and trust with the Burdekin River improvementarea and trust or another river improvement area and trust.

5.5 The Committee thanks the Minister for the information provided and notesthat amendments will be introduced to address the Committee’s concern.

21 Legislative Standards Act 1992 s. 4(4)(c)


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Guidelines for regulatory impact statements22- Clause 8 (proposed s. 25M)

5.6 The Committee considered that the extensive publication and consultationrequirements contained in the Bill would afford similar levels to those requiredunder the regulatory impact statement guidelines. The Committee expressedconcern in relation to proposed s. 25M which provides an express exemption to therequirements of the regulatory impact statement guidelines and has recommendedits removal.

5.7 In response to the Committee’s objection, the Minister made the followingcomments (in part):

I am advised that the provision is proposed to be inserted only because,and I believe the Committee’s understanding to be, that the level ofconsultation and publication is of a comparable level to that requiredunder the Statutory Instruments Act 1992. The proposed provision doesnot take away from that Act.

However, to remove the proposed section 25M would leave the issue opento ongoing debate with a result that hours of government time andresources, including the Committee’s time, would be expended in revisitingand resolving the same.

5.8 The Committee notes the Minister’s comments, however, it maintains theview that proposed s. 25M should be removed as its aim is alreadyaccomplished by s. 42 of the Statutory Instruments Act.

Rights and liberties adversely affected by retrospectivity or obligationsretrospectively imposed?23 - Clause 8 (proposed ss. 25N and 25O)

5.9 The Committee expressed concern that the rights and liberties of individuals mightbe affected as a result of suspension of the processing of certain licence applicationsreceived prior to the date of the publication of a notice about a proposed watermanagement plan.

5.10 The Minister’s response to the Committee’s concerns included the following:

The exceptions outlined in the proposed section 25O identify decisions andactions that may be taken after a notice has been issued under theproposed section 25N. These decisions and actions have been identified ashaving little or no impact on the resource.

The effect of section 25N is to “freeze” the prescribed actions and matters(with exceptions) at a time a notice is issued. This means that the status ofthose actions and matters remains static or constant until such time as a

22 Statutory Instruments Act 1992 part 523 Legislative Standards Act 1992 s. 4(3)(g)


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plan is approved. A decision on those actions and matters after a plan isapproved must then be consistent with the approved plan.

….

I intend to proceed with the provisions and will seek the support of theParliament as the proposed water management planning process andimplementation are essential tools which will greatly assist in themanagement and allocation of the resource, the consequences of whichimpact upon other jurisdictions.

It is also my intention to amend the explanatory notes to accord with myabove statement in relation to this matter.

5.11 The Committee thanks the Minister for the information provided and refersthe question of whether the exceptions contained in proposed s. 250 aresufficient to ensure that the rights and liberties of individuals are notadversely affected during a water management plan making process toParliament for its consideration.

Rights and liberties adversely affected by retrospectivity or obligationsretrospectively imposed? 24- Clause 11 (amending existing s. 51 and inserting new ss.51(1) and (2))

5.12 The Committee was concerned that the replacement of the term “person aggrieved”with the term “dissatisfied person” in proposed amended s. 51(1) and with aproposed new s. 51(2) would limit potential for some third party appeals in respectof certain matters occurred before the commencement of the proposed amendedprovisions.

5.13 The Minister provided the following information:

In response to the Committee’s concern in respect of appeal rights of thirdparties concerning decision of chief executive reached prior to thecommencement date of the proposed amendment to section 51, I amadvised such persons would be entitled to rely on section 20 (1) of the ActsInterpretation Act 1954 which states that -

the repeal, amendment or expiry of an Act or provision of an Actdoes not -

(c) affect a right, privilege or liability acquired, accrued orincurred under the Act or provision; or

(e) affect an investigation, proceeding or remedy in relation to aright, privilege, liability or penalty mentioned in paragraph(c).

24 Legislative Standards Act 1992 s. 4(3)(g)


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(2) The investigation, proceeding or remedy may be started,continued or completed and the right, privilege or liabilitymay be enforced and the penalty imposed, as if the Act orprovision had not been repealed or amended or had notexpired.

Further, section 20 of the Acts Interpretation Act 1954 is a clear andunambiguous statement of the law and it is unnecessary for me to proposeany further amendments as the law does not require further clarification inthese circumstances.

I would add that I intend to amend, in committee, clause 11 of the Bill theproposed section 51(13) which describes “dissatisfied person” for thepurposes of section 51(1).

The insertion will put beyond doubt that a licensee who has a licenceamended, varied, cancelled, revoked or suspended by the chief executivehas a right to appeal to the Land Court against that decision of the chiefexecutive.

5.14 The Committee thanks the Minister for the information provided.

This concludes the Scrutiny of Legislation Committee’s 13th Report to Parliament in1996 with respect to Bills tabled during the week of sittings commencing 26November 1996, and matters previously reported upon by the Committee in past AlertDigests.

Tony Elliott MLAChairman

2 December 1996


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SCRUTINY OF LEGISLATION COMMITTEE - … … · scrutiny of legislation committee. ... section a - bills reported upon ... s ufficient regard to rights and liberties of individuals