SCRUTINY OF LEGISLATION COMMITTEE

SCRUTINY OF LEGISLATION COMMITTEE

ALERT DIGEST

Tabled and Ordered to be Printed19 June 2001

Issue No 3 of 2001

SCRUTINY OF LEGISLATION COMMITTEEMEMBERSHIP

49TH PARLIAMENT, 1ST SESSION

Chair: Mr Warren Pitt MP, Member for Mulgrave

Deputy Chair: Mr Peter Wellington MP, Member for Nicklin

Ms Bonny Barry MP, Member for Aspley

Ms Margaret Keech MP, Member for Albert

Ms Rosa Lee Long MP, Member for Tablelands

Mr Jeff Seeney MP, Member for Callide

Mrs Carryn Sullivan MP, Member for Pumicestone

Principal Legal Adviser toThe Committee:

Professor Charles Sampford

Legal Advisers to the Committee: Associate Professor Gerard Carney

Vacant

Mr Robert Sibley

Dr Max Spry

Committee Staff: Mr Christopher Garvey, Research Director

Ms Anita Sweet, Acting Principal Research Officer

Ms Narelle Robinson, Executive Assistant

Scrutiny of Legislation CommitteeLevel 6, Parliamentary Annexe

Alice StreetBrisbane QLD 4000Phone: 07 3406 7671

Fax: 07 3406 7500Email: [email protected]

Alert Digest No 3 of 2001 Table of Contents

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TABLE OF CONTENTS

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

1. CORPORATIONS (ADMINISTRATIVE ACTIONS) BILL 2001 ....................................................... 1Background.............................................................................................................................................. 1Does the legislation have sufficient regard to the institution of Parliament? ......................................... 1

♦ The bill generally ............................................................................................................................................1Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ....... 2

♦ Clauses 5, 6 and 7............................................................................................................................................2Does the legislation confer immunity from proceeding or prosecution without adequate justification? 3

♦ Clause 10.........................................................................................................................................................3Is the content of the explanatory note sufficient? .................................................................................... 4

2. CORPORATIONS (ANCILLARY PROVISIONS) BILL 2001 ............................................................ 5Background.............................................................................................................................................. 5Does the bill authorise the amendment of an Act only by another Act (by a “Henry VIII clause”)? ..... 5

♦ Clauses 5(1), 5(2), 9(3), 12(2), 12(4), 12(6), 13(4), 17(1)(f), 27(2) and 27(3)................................................5

3. CORPORATIONS (COMMONWEALTH POWERS) BILL 2001....................................................... 7Background.............................................................................................................................................. 7Does the legislation have sufficient regard to the institution of Parliament? ......................................... 7

♦ The bill generally ............................................................................................................................................7Does the bill authorise the amendment of an Act only by another Act (by a “Henry VIII clause”)? ..... 8

♦ Clauses 5, 6 and 7............................................................................................................................................8Is the content of the explanatory note sufficient? .................................................................................... 9

4. ENVIRONMENTAL PROTECTION LEGISLATION AMENDMENT BILL 2001 ....................... 11Background............................................................................................................................................ 11

5. STATE DEVELOPMENT AND OTHER LEGISLATION AMENDMENT BILL 2001.................. 12Background............................................................................................................................................ 12Does the legislation have sufficient regard to the institution of Parliament? ....................................... 12

♦ Clauses 2(2), 2(3) and 2(4)............................................................................................................................12Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..... 14

♦ Clauses 2(1), 30, 40 and 41 ...........................................................................................................................14Does the legislation have sufficient regard to the rights and liberties of individuals? ......................... 15

♦ Clause 18(1) ..................................................................................................................................................15Does the bill authorise the amendment of an Act only by another Act (by a “Henry VIII clause”)? ... 16

♦ Clauses 3 and 4..............................................................................................................................................16

SECTION B– COMMITTEE RESPONSE TO MINISTERIAL CORRESPONDENCE ........................... 18

6. FEDERAL COURTS (CONSEQUENTIAL AMENDMENTS) BILL 2001 ...................................... 18Background............................................................................................................................................ 18

7. FISHERIES AMENDMENT BILL 2001............................................................................................ 19Background............................................................................................................................................ 19Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..... 19

8. INTRODUCTION AGENTS BILL 2001............................................................................................. 21Background............................................................................................................................................ 21


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Does the legislation have sufficient regard to the rights and liberties of individuals? ......................... 21♦ Clauses 34 and 35..........................................................................................................................................21♦ Clause 36.......................................................................................................................................................21♦ Clause 57.......................................................................................................................................................22

Does the legislation confer power to enter premises and to search for or seize documents or otherproperty without a duly issued warrant?............................................................................................... 22

♦ Clauses 65 to 77 ............................................................................................................................................22Does the legislation provide for the reversal of the onus of proof in criminal proceedings withoutadequate justification? .......................................................................................................................... 23Clauses 35(2) and (3)............................................................................................................................. 23

♦ Clause 94.......................................................................................................................................................24Does the legislation confer immunity from proceeding or prosecution without adequate justification?24Clause 96 ............................................................................................................................................... 24

9. LIQUOR AMENDMENT BILL 2001.................................................................................................. 26Background............................................................................................................................................ 26Is the legislation consistent with the principles of natural justice?....................................................... 26Clause 85 (Proposed s.137C)................................................................................................................. 26

10. MOTOR VEHICLE SECURITIES AND OTHER ACTS AMENDMENT BILL 2001 .................... 27Background............................................................................................................................................ 27Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..... 27

♦ Clauses 26(4) (proposed s.39(3)) and 27 (proposed s.45) .............................................................................27

11. RACING AND BETTING AMENDMENT BILL 2001...................................................................... 28Background............................................................................................................................................ 28Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively? ..... 28

♦ Clause 7.........................................................................................................................................................28

12. TRANSPORT INFRASTRUCTURE AND ANOTHER ACT AMENDMENT BILL 2001 .............. 29Background............................................................................................................................................ 29Does the legislation provide for the reversal of the onus of proof in criminal proceedings withoutadequate justification? .......................................................................................................................... 29

♦ Clause 5 (Proposed ss.73G to 73I inclusive).................................................................................................29Does the legislation have sufficient regard to the rights and liberties of individuals? ......................... 30Does the legislation confer immunity from proceeding or prosecution without adequate justification?31

13. TRAVELLER ACCOMMODATION PROVIDERS (LIABILITY) BILL 2001................................. 33Background............................................................................................................................................ 33Is the legislation unambiguous and drafted in a sufficiently clear and precise way?........................... 33

♦ Clause 6.........................................................................................................................................................33

14. WATER INFRASTRUCTURE DEVELOPMENT (BURNETT BASIN) BILL 2001....................... 34Background............................................................................................................................................ 34Does the legislation have sufficient regard to the rights and liberties of individuals? ......................... 34

♦ Clause 10(2) ..................................................................................................................................................34

APPENDIX B – TERMS OF REFERENCE ................................................................................................ 37

APPENDIX C - MEANING OF "FUNDAMENTAL LEGISLATIVE PRINCIPLES" ............................. 38

APPENDIX D – TABLE OF BILLS RECENTLY CONSIDERED............................................................. 39


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BILLS EXAMINED BUT NOT REPORTED ON:∗∗∗∗

CONSUMER CREDIT (QUEENSLAND) AMENDMENT BILL2001∗∗∗∗∗∗∗∗

ELECTRICITY AMENDMENT BILL 2001

∗ These bills were considered to raise no issues within the committee’s terms of reference.∗∗ National Scheme Legislation.

SECTION A

BILLS REPORTED ON

Note: s.14B of the Acts Interpretation Act 1954 provides that consideration may be given to “extrinsic material” in theinterpretation of a provision of an Act in certain circumstances. The definition of “extrinsic material” provided in thatsection includes:

... a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provisionwas enacted1

Matters reported on to Parliament by the Scrutiny of Legislation Committee in its alert digests prior to the enactment2 ofa provision may therefore be considered as extrinsic material in its interpretation.

1 Section 14B(3)(c) Acts Interpretation Act 1954.2 The date on which an Act receives royal assent (rather than the date of passage of a bill by the Legislative Assembly) s.15 Acts

Interpretation Act 1954.

Alert Digest No 3 of 2001 Corporations (Administrative Actions) Bill 2001

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SECTION A – BILLS REPORTED ON

1. CORPORATIONS (ADMINISTRATIVE ACTIONS) BILL 2001

Background

1. The Honourable R J Welford MP, Attorney-General and Minister for Justice, introducedthis bill into the Legislative Assembly on 31 May 2001.

2. The object of the bill, as indicated by the Explanatory Notes, is:

…. to give validity to certain potentially invalid administrative actions taken before thecommencement of the proposed Act by Commonwealth authorities or officers acting underpowers or functions conferred on them by laws of the State relating to corporations.

3. This bill is cognate with the Corporations (Commonwealth Powers) Bill 2001 and theCorporations (Ancillary Provisions) Bill 2001, which were also introduced on 31 May 2001and which are reported on elsewhere in this Alert Digest.

4. Following upon decisions by the High Court of Australia in Re Wakim; Ex parte McNally(1999) 163 ALR 270 and The Queen v Hughes (2000) 171 ALR 155, which cast doubt uponthe constitutional validity of important elements of the current corporations law scheme, theCommonwealth, State and Territory Governments are proposing to enact packages of bills toreconstitute the scheme on a different basis, to validate possibly invalid administrativeactions carried out during the life of the current scheme and its predecessor, and to makeancillary amendments to accommodate the new scheme.

5. This bill performs the second of those functions, namely, it validates possibly invalidadministrative actions carried out during the life of the current and previous schemes.

Does the legislation have sufficient regard to the institution of Parliament?3

♦ The bill generally

6. This bill, which was prepared through the Standing Committee of Attorneys-General and theMinisterial Council for Corporations,4 is to be enacted in similar form by all other States. Itaccordingly forms part of national scheme legislation.5

7. In its report elsewhere in this Alert Digest on the Corporations (Commonwealth Powers)Bill 2001, which is cognate with this bill, the committee canvasses the difficulties associatedwith national scheme legislation. The comments made in respect of that bill are applicablealso to this bill.

3 Section 4(2)(b) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the institution of Parliament.4 See Explanatory Notes at page 7.5 The committee uses this term to describe broadly:

any and all methods of developing legislation, which is –• Uniform or substantially uniform in application;• In more than one jurisdiction, several jurisdictions or nationally.


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8. This bill is made pursuant to an intergovernmental agreement, and forms part of nationalscheme legislation. Many elements of such schemes have been identified by scrutinycommittees nationally as undermining the institution of Parliament.

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

Does the legislation adversely affect rights and liberties, or impose obligations,retrospectively?6

♦ Clauses 5, 6 and 7

10. As mentioned above, the object of this bill is to validate certain potentially invalidadministrative actions taken under the current legislative scheme and its predecessor.

11. The practice of making retrospectively validating legislation is not one which the committeeendorses because such law could adversely affect rights and liberties or impose obligationsretrospectively and therefore breach fundamental legislative principles. The committeedoes, however, recognise that there are occasions on which curative retrospective legislation,without significant effects on rights and liberties of individuals, is justified to correctunintended legislative consequences.

12. The general validating provision in relation to “administrative actions” is contained in cl.5.“Administrative actions” are specifically declared to include the registration or incorporationof companies (see cl.7). Clause 5 covers a wide range of administration and enforcementfunctions (including the investigation and prosecution of offences).

13. Clause 5 does not validate the relevant actions in direct terms, but does so by deeming“invalid administrative actions” to have, and to always have had, the same force and effectas if they had been taken by a State authority or officer of the State upon whom thosefunctions or powers have been duly conferred.

14. The Explanatory Notes state:

Many or all actions by these Commonwealth authorities are likely to be valid, because theycould be supported by the Commonwealth’s legislative powers. However, the validity ofeach action can only be determined on a case by case basis, having regard to the particularcircumstances of each action.

15. The Explanatory Notes further state:

The Bill validates potentially invalid administrative actions taken by Commonwealthauthorities and officers before commencement of the proposed new CommonwealthCorporations Act 2001 by giving them the same effect that they would have had if they hadbeen taken by State authorities or officers of the State.

6 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.


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Accordingly, the Bill has the potential to adversely affect rights and liberties retrospectively.However, this is essentially a curative measure, which is necessary to remove uncertainty.

The national Corporations Law scheme has been operating for over ten years on theassumption that the scheme had a sound constitutional footing. The Bill is necessary toovercome the serious consequences that would otherwise flow from a potentialdetermination that the administrative actions of Commonwealth authorities and officersunder this scheme were invalid.

16. The committee notes that cls. 5, 6 and 7 of the bill have the effect of retrospectivelyvalidating various administrative actions taken under the current and previous legislativeschemes relating to corporations. The committee notes that the constitutional invalidity ofthese actions has not been judicially established, but that there is a possibility some suchdecisions may be invalid.

17. The committee further notes that the relevant corporations law scheme has been operatingfor over ten years on the assumption that it was constitutionally valid.

18. The committee refers to Parliament the question of whether the retrospective validation ofadministrative actions effected by this bill is appropriate in the circumstances.

Does the legislation confer immunity from proceeding or prosecution without adequatejustification?7

♦ Clause 10

19. Clause 10(1) provides as follows:

The State is not liable to any action, liability, claim or demand arising from the enactment,commencement or operation of this Act.

20. It appears to the committee that this provision merely expressly incorporates into the bill ageneral legal principle, namely, that the enactment of legislation interfering with pre-existing rights does not normally give rise to any legal claim on the part of those personsadversely affected. The only exception is where a statute has the effect of compulsorilyacquiring property, in which the case the courts will usually interpret it as conferring anentitlement to fair compensation for that acquisition.

21. Clause 10(2) states as follows:

Without limiting subsection(1), no proceedings lie against the State in respect of anadministrative action affected by this Act, except to the extent that the proceedings would liehad this Act not been enacted.

22. Clause 10(2) appears to preserve any rights to bring proceedings which existed prior toenactment of the bill. In that respect, it is unobjectionable.

7 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 withoutadequate justification.


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23. The committee notes that cls.10(1) and 10(2) confer certain immunities upon the State. Itappears to the committee that these provisions are consistent with the normal principles ofstatutory interpretation.

24. The committee makes no further comment on the provisions of cls.10(1) and 10(2).

Is the content of the explanatory note sufficient?8

25. In its report on the Corporations (Commonwealth Powers) Bill 2001 elsewhere in this AlertDigest, the committee comments favourably on the quality of the Explanatory Notes whichaccompany that bill. The committee considers those Notes provided a clear explanation ofthe background and objectives of that bill.

26. The committee likewise considers the Explanatory Notes accompanying this bill provide aclear explanation of the issues which the bill addresses.

27. The committee commends the Minister on the quality of the Explanatory Notes whichaccompany this bill.

8 Section 23 of the Legislative Standards Act 1992 sets out the information required to be included in an explanatory note for a bill.

If the explanatory note does not include any of this information, it must state the reason for non-inclusion.

Alert Digest No 3 of 2001 Corporations (Ancillary Provisions) Bill 2001

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2. CORPORATIONS (ANCILLARY PROVISIONS) BILL 2001

Background



…. to enact ancillary provisions, including transitional provisions and consequentialamendments, relating to the proposed new corporations legislation to be enacted by theCommonwealth Parliament following references of matters relating to corporations made bythe States under section 51 (xxxvii) of the Commonwealth Constitution.

3. This bill is cognate with the Corporations (Administrative Actions) Bill 2001 and theCorporations (Commonwealth Powers) Bill 2001, which were also introduced on 31 May2001 and which are reported on elsewhere in this Alert Digest.

4. As the Explanatory Notes state, this bill contains provisions including transitional provisionsand consequential amendments, relating to the proposed new corporations legislation to beenacted by the Commonwealth Parliament.

Does the bill authorise the amendment of an Act only by another Act (by a “Henry VIIIclause”)?9

♦ Clauses 5(1), 5(2), 9(3), 12(2), 12(4), 12(6), 13(4), 17(1)(f), 27(2) and 27(3)

5. The bill provides for:• provisions to be deemed to be “corresponding provisions” (cls.5(1), 5(2), 5(6))• certain provisions of State law not to operate (cl.9(3))• existing references to corporations legislation to apply or not to apply (cl.12(2))• a reference to be taken to be a reference of a particular kind (cl.12(4) and (6))• references to companies and other bodies not to apply (cl.13(4)); and• changes to be made to the operation of provisions of laws (cl.17(1)(f)).

6. The bill also provides that:• regulations may be made changing “certain provisions of part 2” (cl.27(2))[part 2 comprises

cls.7-13]; and• those provisions “then have effect as if they were so changed”(cl.27(3)).

7. As these provisions in one way or another appear to change the application of the bill, or ofother legislation referred to in the bill, most or all of them are probably “Henry VIII clauses”within the definition of that term that has been adopted by the committee.10 Indeed cl.27(2),which is a quite overt “Henry VIII clause”, appears to have relatively wide application andsignificant effect, as it authorises changes to any part 2 provisions.

9 Section 4(4)(c) 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 authorises the amendment of an Act only by another Act.10 See the committee’s January 1997 report on The Use of “Henry VIII Clauses” in Queensland Legislation.

Alert Digest No 3 of 2001 Corporations (Ancillary Provisions) Bill 2001

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8. Whilst the committee accepts that one of the circumstances in which the use of “Henry VIIIclauses” may be justified is to facilitate the application of national scheme legislation,11 thecommittee does not automatically accept the appropriateness of such clauses in that context.Alternatively, the question arises as to whether the provision simply involves aninappropriate delegation of legislative power.12

9. In relation to these clauses, the Explanatory Notes state:

These clauses may be seen as Henry VIII clauses, but they are designed to operate in linewith the purpose of the Bill, which is to enact ancillary and transitional provisions, relatingto the enactment by the Parliament of the Commonwealth of new corporations legislation.

Generally, the effect of these clauses is to allow regulations to be made providing for theapplication or non-application of certain provisions of the Bill to certain references in Statelegislation or to specified circumstances.

The aim of these clauses is to facilitate the application of the new Commonwealthcorporations legislation in a manner which protects provisions in Queensland legislationwhich may be inconsistent with the new Commonwealth legislation and therefore invalid.The clauses will facilitate immediate executive action where a potential inconsistency arises.

As the primary aim of the clauses is to ensure a smooth transition from the currentCorporations Law to the new Commonwealth corporations legislation, each of the HenryVIII clauses is to be subject to a 2-year sunset clause.

The Parliament, in its scrutiny of the Bill, is fully apprised of the parameters of its operation.

10. The committee notes that regulations made under the relevant clauses will expire no laterthan 30 June 2003 (cl.28). However, the committee remains concerned by the veryextensive use of “Henry VIII clauses” in this bill. Even in circumstances (such as in relationto national scheme legislation) where the committee may accept the presence of suchclauses, it considers they should be used as sparingly as possible.

11. The committee notes that a number of clauses of this bill enable regulations to be mademodifying the effect of particular provisions of the bill. The committee notes that whilst therelevant clauses and regulations are transitional in nature, the range of matters that may bedealt with in this manner is quite significant. The relevant clauses are, in the committee’sview, “Henry VIII clauses”.

12. The committee seeks information from the Attorney as to whether he is satisfied the use of“Henry VIII clauses” has been kept to the minimum necessary to achieve the bill’sobjectives.

11 See the committee’s 1997 report at page 56.12 See s.4(4)(a) of the Legislative Standards Act 1992.

Alert Digest No 3 of 2001 Corporations (Commonwealth Powers) Bill 2001

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3. CORPORATIONS (COMMONWEALTH POWERS) BILL 2001

Background



….to refer certain matters relating to corporations, corporate regulation and financialproducts and services to the Commonwealth Parliament, so as to enable the CommonwealthParliament to make laws about those matters. The proposed Act will be enacted for thepurposes of section 51 (xxxvii) of the Commonwealth Constitution, which enables StateParliaments to refer matters to the Commonwealth Parliament..

3. This bill is cognate with the Corporations (Administrative Actions) Bill 2001 and theCorporations (Ancillary Provisions) Bill 2001, which were also introduced on 31 May 2001and which are reported on elsewhere in this Alert Digest.

4. Following upon decisions by the High Court of Australia in Re Wakim; Ex parte McNally(1999) 163 ALR 270 and The Queen v Hughes (2000) 171 ALR 155, which cast doubt uponthe constitutional validity of important elements of the current corporations law scheme, theCommonwealth, State and Territory Governments are proposing to enact packages of bills toreconstitute the scheme on a different basis, to validate possibly invalid administrativeactions taken during the life of the current scheme and its predecessor, and to make ancillaryamendments to accommodate the new scheme.

5. Under this bill Queensland will refer relevant State powers to the Commonwealth, pursuantto s.51(xxxvii) of the Commonwealth Constitution, in order that the Commonwealth canthen itself enact the necessary Corporations legislation as Commonwealth laws.


♦ The bill generally

6. This bill, which was prepared through the Standing Committee of Attorneys-General and theMinisterial Council for Corporations,14 is to be enacted in identical or near-identical form byall States. It accordingly forms part of national scheme legislation.15

7. National schemes of legislation have been a source of considerable concern, both to thecommittee and to its interstate and Commonwealth counterparts.16 These schemes take a

13 Section 4(2)(b) of the Legislative Standards Act 1992 requires legislation to have sufficient regard to the institution of Parliament.14 See Explanatory Notes at page 7.15 The committee uses this term to describe broadly:

any and all methods of developing legislation, which is –• Uniform or substantially uniform in application;• In more than one jurisdiction, several jurisdictions or nationally.


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number of forms, and the objection to them is greatest when they involve predeterminedlegislative provisions.

8. Ministers sponsoring bills of the latter type will generally object to any amendments beingmade to them during their passage through Parliament, on the basis that such amendmentswould be inconsistent with the legislative terms agreed on by the relevant intergovernmentalbody.

9. Given that this bill is to be enacted with (at most) quite insignificant variations by all States,it seems quite clear the Minister would adopt that stance in relation to it.

10. Given the nature and purpose of the bill, there is a clear need for a high degree of uniformityin the respective legislative provisions. The difficulties associated with such nationalscheme legislation nevertheless remain.

11. This bill is made pursuant to an intergovernmental Agreement, and forms part of nationalscheme legislation. Many elements of such schemes have been identified by scrutinycommittees nationally as undermining the institution of Parliament.

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


♦ Clauses 5, 6 and 7

13. Clause 5 provides that the references of power made by this bill to the CommonwealthParliament terminate on the fifth anniversary of the day of commencement of theCommonwealth Corporations legislation. Clause 5 also provides scope, however, for thattermination date to be either extended or brought forward to a date fixed by the Governor byproclamation made under cls. 6 or 7 of the bill.

14. Clauses 6 and 7 expressly provide power for the Governor to fix by proclamation atermination date that is either later (cl.6) or earlier (cl.7) than the fifth anniversary. In eachcase the proclamation made by the Governor is deemed to be subordinate legislation.

15. Clauses 5, 6 and 7 may well constitute “Henry VIII Clauses” within the definition of thatterm that has been adopted by the committee.18

16. Whilst the committee accepts that one of the circumstances in which the use of “Henry VIIIClauses” may be justified is to facilitate the application of national scheme legislation,19 thecommittee does not automatically accept the appropriateness of such clauses in that context.

16 The relevant issues are canvassed in detail in Scrutiny of National Schemes of Legislation – A Position Paper of Representatives of

Scrutiny of Legislation Committees throughout Australia, October 1996.17 Section 4(4)(c) 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 authorises the amendment of an Act only by another Act.18 See the committee’s January 1997 report The Use of “Henry VIII Clauses” in Queensland Legislation.19 See the committee’s 1997 report at page 56.


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Alternatively, the question arises as to whether the provisions simply involve aninappropriate delegation of legislative power.20

17. The reasons underlying the provision of these options to extend or shorten the 5 year periodare apparent from the following extracts taken from the Attorney’s Second Reading Speech:

The States have agreed to give the referral for only five (5) years because the referral ofpower by the States to the Commonwealth is not a permanent solution to the problems of thecurrent scheme.

At the request of Ministers, the Commonwealth has given a firm undertaking to examinelong-term solutions to address the problems arising from the decisions of the High Court inWakim and Hughes, including constitutional change.

The States can terminate the referral earlier, by proclamation, if, for example, theCommonwealth Parliament makes amendments to the new Corporations Act which gobeyond what was envisaged when the referral was made, such as in the area of theenvironment.

The bill also provides for the termination of the power of the Commonwealth to amend thereferred laws, by proclamation.

However, if only the amendment reference is terminated, the effect of the CommonwealthCorporations Bill is that the State would cease to be part of the new scheme unless all of theStates also revoke the reference, giving six months notice of their intention to do so.

This underlines the importance of the corporations Agreement, which will govern the scopeof the referral.

The corporations Agreement is an inter-governmental agreement and, in formal terms, is notlegally binding.

However, the States place great weight on it, and have agreed to refer powers in the terms ofthe bill before the House on the understanding that the Commonwealth will abide by boththe spirit and the letter of the Agreement.

18. The committee notes that whilst cl.5 provides a 5 year duration for the references of powereffected by this bill, cls. 5, 6 and 7 also provide options for that period to be shortened orextended by proclamation made by the Governor. These latter provisions may wellincorporate “Henry VIII clauses” within the definition of that term adopted by thecommittee. Alternatively, there may be an issue as to the appropriateness of the delegationof legislative power which they involve.

19. The committee notes that the issue is dealt with at some length in the Attorney’s SecondReading Speech.

20. The committee refers to Parliament the question of whether the delegation of legislativepower conferred by cls. 5, 6 and 7 is appropriate in the circumstances.

Is the content of the explanatory note sufficient?21

21. The committee notes that the Explanatory Notes accompanying this bill contains a lengthyand well-constructed treatment of the reasons for the bill and how its objectives will be

20 See s.4(4)(a) of the Legislative Standards Act 1992.21 Section 23 of the Legislative Standards Act 1992 sets out the information required to be included in an explanatory note for a bill.

If the explanatory note does not include any of this information, it must state the reason for non-inclusion.


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achieved. In the committee’s view, this is of considerable assistance to persons wishing toobtain a better understanding of the bill.

22. The committee commends the Attorney on the quality of the Explanatory Notes prepared inrelation to this bill.

Alert Digest No 3 of 2001 Environmental Protection Legislation Amendment Bill 2001

Chapter 4 Page 11

4. ENVIRONMENTAL PROTECTION LEGISLATION AMENDMENTBILL 2001

Background

1. The Honourable D McM Wells MP, Minister for Environment, introduced this bill into theLegislative Assembly on 29 May 2001. It was subsequently passed, unamended, as anurgent bill on 30 May 2001 following suspension of the Standing Orders, before thecommittee had tabled a report in relation to it.

2. Upon receiving the Governor’s assent, the bill becomes an Act. The committee only hasjurisdiction to comment on bills, and once assent has been given the committee has nojurisdiction to comment upon it.

3. Even if the bill has not been assented to, there is in practice no scope for it to come backbefore Parliament once it has passed the third reading stage. Accordingly, it would be futilefor the committee to attempt to comment on the bill’s contents.

4. The committee only has jurisdiction to comment on bills not Acts. If the bill has alreadybeen assented to, the committee has no jurisdiction to comment on it. Even if it has not beenassented to, it would in practical terms be futile for the committee to comment.

5. The committee accordingly makes no comment in respect of this bill.

Alert Digest No 3 of 2001 State Development and Other Legislation Amendment Bill 2001

Chapter 5 Page 12

5. STATE DEVELOPMENT AND OTHER LEGISLATION AMENDMENTBILL 2001

Background

1. The Honourable T A Barton MP, Minister for State Development, introduced this bill intothe Legislative Assembly on 29 May 2001.

2. The bill is broadly similar to (although with a number of significant additions and variations,and certain formatting changes) the State Development and Other Legislation AmendmentBill 2000, which was introduced into the Legislative Assembly by the Honourable J P ElderMP, Deputy Premier and Minister for State Development and Minister for Trade, on 16November 2000. The earlier bill lapsed when Parliament was dissolved on 23 January 2001,before the committee had tabled a report in relation to it.

3. The object of the bill, as indicated by the Minister in his Second Reading Speech, is:

….(to amend the following aspects of) the State Development and Public WorksOrganisation Act 1971:

1. Environmental impact assessment procedures for significant projects that involvemining

2. Linkages between the environmental assessment and the development approvalprocess

3. Delegation and transfer of authorised works

4. Acquisition of an interest in land less than fee simple (freehold)

The Bill also includes amendments to the Environmental Protection Act 1994, the IntegratedPlanning Act 1997 and the Mineral Resources Act 1989 which give effect to theseamendments to the State Development and Public Works Organisation Act 1971.

…………

The Bill also includes amendments to the Electricity Act 1994 …. (and)…. an amendment tothe Central Queensland Coal Associates Agreement Act 1968.


♦ Clauses 2(2), 2(3) and 2(4)

4. Clause 2(2) provides that, with certain stipulated exceptions, the provisions of the billcommence on a day to be fixed by proclamation. Clause 2(3) provides that s.15DA(1) and(2) of the Acts Interpretation Act 1954:

….apply to (these) provisions as if the reference in section 15DA(2) to “1 year” were areference to “2 years”.

Clause 2(4) provides that:

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


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The Acts Interpretation Act 1954, sections 15DA(3) and (4) do not apply to (these)provisions.

5. Section 15DA of the Acts Interpretation Act 1954 deals with “postponed laws” (that is, Actsor provisions of Acts which, like the provisions mentioned in cl.2(2), are stated tocommence at a later date to be fixed by proclamation). Section 15DA(2) provides for theautomatic commencement of such laws 1 year after assent, if the commencementproclamation has not been made by that time. (Section 15DA(3) provides that a regulationmay nevertheless extend the automatic commencement date to 2 years from the date ofassent.)

6. Section 15DA was enacted to cap the length of time the Executive could delay thecommencement of an Act duly passed by Parliament. It embodies the principle that it isinappropriate for Parliament to relinquish control indefinitely over the commencement of anAct it has passed. It is the policy of the committee to oppose provisions which totallyexclude the operation of s.15DA and thereby enable the commencement of a bill to bedelayed indefinitely.23 In the committee’s view, any relief from s.15DA should take theform of an extension of automatic commencement.

7. The provisions of this bill are consistent with the committee’s stance in that cl.2(3) does nottotally exclude the operation of s.15DA, but instead provides for automatic commencementto take effect 2 years, rather than 1 year, after the bill is assented to. As cl.2(4) of the billalso excludes the operation of ss.15DA(3) and (4) of the Acts Interpretation Act 1954, thebill will automatically commence ( in the absence of an earlier commencementproclamation) on a fixed date 2 years from assent. This removes any possibility of thecommencement date being extended in a way which the committee would findobjectionable.

8. The Explanatory Notes provide the following background to the modification of theoperation of s.15DA:

The commencement provisions provide for the provisions relating to the assessment ofmining projects to commence by Proclamation up to two years after the date of assent.Because of the potential implications of the Alternative State Provisions on this part of theAct, the timing for their commencement has been made to enable consultation with theCommonwealth Government should any issues arise which could otherwise have theprovisions set aside.

9. Clause 2(3) of the bill modifies the operation of s.15DA of the Acts Interpretation Act1954,24 by extending the automatic commencement period to 2 years. However, cl.2(4)excludes those provisions of s.15DA which enable the “automatic commencement” periodto be further extended by regulation.

10. The provisions of cls.2(3) and 2(4) are consistent with the committee’s policy in relation tomodification or exclusion of s.15DA.

11. The committee accordingly has no concerns in relation to cls.2(3) and 2(4) of the bill.

23 See Alert Digest No 5 of 2000 at pages 5-7.24 Section 15DA provides a default mechanism for automatic commencement of bills 1 year after assent.


Chapter 5 Page 14


♦ Clauses 2(1), 30, 40 and 41

12. Clause 2(1) of the bill provides that ss.30, 40 and 41 (to the extent that the latter insertsss.29PA and 29PB) “are taken to have commenced on 16 June 1999”. These provisions allamend the State Development and Public Works Act Organization Act 1971.

13. Clause 40 amends s.29O of the Act in a number of respects, including by providing that ifthe Coordinator-General’s report provides for a condition that must be attached to anydevelopment approval, the report may state the entity that is to have jurisdiction for thecondition and state that the condition is taken to be a “concurrence agency condition”.Proposed s.29PA (inserted by cl.41) provides that if in the report the Coordinator-Generalnominates an entity as a “concurrence agency” for a development approval, that entity istaken to be a concurrence agency for the relevant development application. Proposeds.29PB (also inserted by cl.41) provides that if in the report the Coordinator-Generalnominates an entity for a condition the Coordinator-General requires to be imposed on orattached to any development approval related to the report, the entity is, in addition to the“assessment manager” who gives the approval, the entity for the condition.

14. All of these provisions relate to processes under the Integrated Planning Act 1997 and todevelopment approval issues.

15. The committee always takes care when examining legislation that commencesretrospectively or could have effect retrospectively, to evaluate whether there are anyadverse effects on rights and liberties or whether obligations retrospectively imposed areundue. As mentioned earlier, the bill’s retrospective provisions all relate to conditionsimposed by the Coordinator-General in relation to development approvals.

16. In relation to these retrospective provisions, the Explanatory Notes state:

These provisions provide agencies, proponents and the assessment manager with certaintyas to the ability to fully administer development approval conditions. The commencement ofthese provisions is retrospective to clarify the responsibility for the administration ofconditions attached to development approvals already granted where following thecompletion of an EIS (environmental impact study) for a significant project since the June1999 amendments to the Act.

17. The Explanatory Notes also state, at page 5:

This retrospective commencement will not affect any interests but will provide clarificationas to the ability of State agencies such as the EPA to fully administer and enforce conditionsattached to a development approval

18. The committee notes that the amendments are in large part directed to nominating the entitywhich will administer a condition and not, apparently, to the creation of additionalconditions. Moreover, whilst the precise impact of these somewhat technical provisions is




Chapter 5 Page 15

difficult to evaluate, the committee has been unable to identify any effects which are clearlyadverse to the interests of individuals.

19. The committee makes no further comment in relation to the retrospective aspects of cls.2(1), 30, 40 and 41.

Does the legislation have sufficient regard to the rights and liberties of individuals?26

♦ Clause 18(1)

20. Section 215 of the Environmental Protection Act 1994 provides that a person or corporationmay make an objection about an application under that Act or about the draft environmentalauthority or a condition associated with that application. Section 216(2) excludes any rightof objection to a condition in the draft environmental authority, where the application is a“standard application”.

21. This bill inserts an additional sub-section (2A) which provides as follows: ‘(2A) Also, a Coordinator-General’s condition included in the draft under section 209 or

210 cannot be objected to by anyone.’

22. As is apparent, cl.18(1) deprives persons of the right to object to “Coordinator-General’sconditions”.

23. In relation to this matter, the Explanatory Notes state: The introduction of new subsection (1) is to the effect that no person can object to a

condition included in the draft environmental authority relating to a significant projectwhere that condition was included in the COG’s report on the significant project.

The introduction of new subsection (4) of section 216 is to make clear that an objection to anapplication for an environmental authority is an objection relating to the application and notto any of the application documents which would include an EIS. That is, ancillarydocuments such as the EIS will not be open to objection.

24. The purpose of proposed ss.216(2A) is effectively to exempt conditions generated by theCoordinator-General under the statutory regime established by the State Development andPublic Works Organisation Act regime, from the general objection process provided underthe Environmental Protection Act 1994. This, it may be assumed, is consistent with thephilosophy underlining the former Act and the unique role of the Coordinator-General incircumstances where that Act applies.

25. The committee notes that cl.18(1) inserts a provision which exempts Coordinator-Generalconditions, arising out of completion of an Environmental Impact Study, from the generalobjection process provided under the Environmental Protection Act 1994.

26. The committee refers to Parliament the question of whether the exemption of suchconditions from that objection process has sufficient regard for the rights of potentialobjectors.

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

individuals.


Chapter 5 Page 16


♦ Clauses 3 and 4

27. Clauses 3 and 4 amend the Central Queensland Coal Associates Agreement Act 1968, whichis an “Agreement Act”. In its report The Use of “Henry VIII Clauses” in QueenslandLegislation,28 the committee commented adversely on the provision contained in most suchbills enabling the annexed Agreement, which is given the force of law by the AgreementAct, to be amended by regulation. The committee considered this was a “Henry VIIIClause”, to which the committee objected on the basis that such provisions undermine theinstitution of Parliament.

28. Clause 4 of this bill replaces current s.4 of the Central Queensland Coal AssociatesAgreement Act 1968 (which governs variation of the annexed Agreement) with a new s.4.The new s.4 avoids the difficulties created by the current provision by requiring that anyfurther agreement, which is to be given the force of law under the Act, must “(correspond)to the proposed further agreement set out in schedule 2”. The bill also inserts Schedule 2,which sets out the relevant agreement.

29. The effect of the new provisions is that the desired amendment is directly incorporated intothe Act, rather than being achieved through the making of a regulation.29

30. The committee commends the Minister on the replacement of s.4 of the Central QueenslandCoal Associates Agreement Act 1968 with a new section which is not a “Henry VIII clause”.

27 Section 4(4)(c) 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 authorises the amendment of an Act only by another Act.28 January 1997 at page 33.29 The “Henry VIII” issue was overcome in the same manner in the Jupiters Casino Agreement Amendment Bill 2000: see Alert

Digest No 14 of 2000 at pages 8-9.

SECTION B

COMMITTEE RESPONSE TOMINISTERIAL ORRESPONDENCE

Note: s.14B of the Acts Interpretation Act 1954 provides that consideration may be given to “extrinsic material” in theinterpretation of a provision of an Act in certain circumstances. The definition of “extrinsic material” provided in thatsection includes:

... a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provisionwas enacted30

Matters reported on to Parliament by the Scrutiny of Legislation Committee in its alert digests prior to the enactment31

of a provision may therefore be considered as extrinsic material in its interpretation.

30 Section 14B(3)(c) Acts Interpretation Act 1954.31 The date on which an Act receives royal assent (rather than the date of passage of a bill by the Legislative Assembly) s.15 Acts

Interpretation Act 1954.

Alert Digest No 3 of 2001 Federal Courts (Consequential Amendments) Bill 2001

Chapter 6 Page 18

SECTION B– COMMITTEE RESPONSE TO MINISTERIALCORRESPONDENCE

6. FEDERAL COURTS (CONSEQUENTIAL AMENDMENTS) BILL 2001

Background

1. The Honourable P D Beattie MP, Premier and Minister for Trade, introduced this bill intothe Legislative Assembly on 22 March 2001. The committee notes that this bill was passed,without amendments, on 17 May 2001.

2. The committee commented on this bill in its Alert Digest No 1 of 2001 at page 24. ThePremier’s response to the committee’s comments is referred to in part below and reproducedin full in Appendix A of this digest.

3. The bill is identical in substance to the Federal Courts (Consequential Amendments) Bill2000, which lapsed when Parliament was dissolved on 23 January 2001. The committeeadopted and repeated, in relation to the current bill, the comments made by the previouscommittee in relation to the earlier lapsed bill.

4. The Premier responded as follows: In relation to the Committee’s comments on the Federal Courts (Consequential Amendment)

Bill 2001, firstly the Committee observes that the Bill is part of ‘national schemelegislation’, and queries whether the legislation has sufficient regard to the institution ofParliament. The Committee notes that ‘national scheme legislation’ includes a number offorms. The forms of national scheme legislation range from legislation ‘applying’ laws ofthe Commonwealth or other states in Queensland, to legislation embodying principlesconsistent with legislation in other jurisdictions in forms appropriate to each of theparticipating jurisdictions. I would confirm the Committee’s interpretation that the Bill isan example of the latter category. The Bill, though substantially consistent with the nationalscheme legislation, has incorporated Queensland legislative drafting principles.

Secondly, the Committee queries whether the present legislation, removing the application ofthe Administrative Decisions (Judicial Review) Act 1977, will deny individuals access tojudicial review. The Department of the Premier and Cabinet has obtained the advice ofCrown Law on the matter. The Crown Law advice addresses the effect of the proposedlegislation on the rights of individuals to seek judicial review under the Judicial Review Act1991 (Queensland), the Administrative Appeals Tribunal Act 1975 (Commonwealth), and theAdministrative Decisions (Judicial Review) Act 1977 (Commonwealth).

The conclusion is that: In my opinion, those rights of a person to access judicial review, which were affected

by the High Court’s decision in Re Wakim, will be reinstated by the Cth AmendmentAct and the Bill. In essence, these amendments simply have the effect of applying theADJR Act, to the decisions of Commonwealth officers and authorities under Statelegislation, as a law of the Commonwealth, rather than (as was previously the case) asif the ADJR Act were a law of the State.

Accordingly, the Committee need not be concerned that individuals will be excludedfrom access to judicial review by the legislative changes made by the Bill and theCommonwealth Amendment Act.

5. The committee thanks the Premier for this information.

Alert Digest No 3 of 2001 Fisheries Amendment Bill 2001

Chapter 7 Page 19

7. FISHERIES AMENDMENT BILL 2001

Background

1. The Honourable H Palaszczuk MP, Minister for Primary Industries and Rural Communities,introduced this bill into the Legislative Assembly on 22 March 2001. The committee notesthat this bill was passed, with amendments, on 15 May 2001.

2. The committee commented on this bill in its Alert Digest No 1 of 2001 at pages 27-28. TheMinister’s response to the committee’s comments is referred to in part below andreproduced in full in Appendix A of this digest.

3. The bill is identical in substance to the Fisheries Amendment Bill 2000, which wasintroduced into the Legislative Assembly by the Minister on 15 November 2000. The earlierbill lapsed when Parliament was dissolved on 23 January 2001, before the committee hadtabled a report in relation to it.


4. Proposed new s.223A (inserted by cl.19 of the bill) validates the past inadvertent applicationto two “eligible licences” of a formula relating to the calculation of “transferable catchquotas”. The committee referred to Parliament the question of whether the provisions ofproposed s.223A are acceptable in the circumstances.

5. The Minister responded:

Firstly, as you would be aware, the Amendment Bill was passed by Parliament on 15 May2001 and assent of the Bill is now being progressed. Further, I advise that Clause 19 of theAmendment Bill, which inserted a new section 223 to validate the past inadvertentapplication of a statutory formula contained within the Fisheries (Spanner Crab)Management Plan 1999 (the “SCMP”), was amended In Committee.

In relation to the comments made in the extract of the Committee’s Alert Digest, I agree andendorse the comments that, generally, the making of retrospectively validating legislation isnot considered a favourable form of legislation.

In relation to the Spanner Crab allocation, the In Committee amendments corrected furtheridentified unintended allocation anomalies. The retrospective amendments were required toachieve the remedy of the allocation of Individual Transferable Quota (ITQ) units.

Essentially, the comments made in the explanatory notes of the Amendment Bill remainpertinent::

“The retrospective operation of the amendment ensures that the intended policyrequired by the SCMP is achieved and that the technical inadvertence realised bythe QFMA’s application of the formula is overcome.”



Alert Digest No 3 of 2001 Fisheries Amendment Bill 2001

Chapter 7 Page 20

In the circumstances, it was considered necessary to effect the curative retrospectivevalidation on the basis that it was justified to correct unintended legislative consequences.Moreover it was considered to be of prime importance to maintain a continuum ofmanagement and administration for the spanner crab fishery.

6. The committee notes the Minister’s response.

Alert Digest No 3 of 2001 Introduction Agents Bill 2001

Chapter 8 Page 21

8. INTRODUCTION AGENTS BILL 2001

Background

1. The Honourable M Rose MP, Minister for Tourism and Racing and Minister for FairTrading, introduced this bill into the Legislative Assembly on 3 April 2001. As at the dateof publication of this digest the bill had not been passed.



♦ Clauses 34 and 35

3. Clauses 34 and 35 of the bill prohibit various false representations by introduction agents,their employees or associated persons and impose maximum penalties of 540 penalty units($40,500) for breach of the provisions. The committee drew to the attention of Parliamentthe substantial maximum penalties imposed by cls.34 and 35 for breach of the provisions.


Clauses 34 and 35 prohibit various false representations by introduction agents, theiremployees or associated persons. I note the Committees’ comments that the maximumpenalty for a breach or the provisions is substantial, ie 540 penalty units ($40,500).

This maximum penalty has been chosen as it is the same as that provided for breach ofsection 40 Fair Trading Act 1989. Section 40 prohibits false and misleading statements oradvertising in industries generally, but does not target the specific practices prohibited byclauses 34 and 35 of the Bill. I believe that the penalties applied by the two Acts should beconsistent. I also point out that the amount of consumer detriment in individual cases in theintroduction agency industry has on occasions amounted to tens of thousands of dollars. Ibelieve that the maximum penalty will allow the courts to consider what is appropriate inindividual cases, taking into account general sentencing practice and laws.


♦ Clause 36

6. Clause 36 of the bill imposes certain obligations upon introduction agents in relation toaccess to, and use of, personal information given to them by clients and potential clients, andsignificantly restricts that access and use. Breach of the statutory obligations attracts amaximum penalty of 200 penalty units ($15,000). The committee noted with approval therange of confidentiality obligations imposed by cl.36 upon introduction agents, their


individuals.


Chapter 8 Page 22

employees and others in relation to personal information supplied by clients and potentialclients, and noted that the provision enhances clients’ rights of privacy.


I am pleased to read that the Committee approves of the range of confidentiality obligationsimposed by the Bill. I believe that these provisions will serve consumers well.


♦ Clause 57

9. The committee noted that as well as declaring void any contractual provisions which purportto vary or exclude the operation of the bill, cl.57 makes it an offence for an agent to enterinto such provisions.

10. The Minister commented as follows:

The Committee notes that clause 57, as well as declaring void any contractual provisionswhich purport to vary or exclude the operation of the Bill, makes it an offence for an agentto enter into such provisions.

I believe that the option of both civil and criminal remedies are appropriate in this case.Civil remedies are always best for consumers whose chief concern is that they be refundedany monies owing to them. However, in some cases traders will not have funds available forrefund. In these cases, a prosecution may be appropriate as a warning to other tradersagainst attempting to enter into similarly illegal contracts.


Does the legislation confer power to enter premises and to search for or seize documentsor other property without a duly issued warrant?34

♦ Clauses 65 to 77

12. The committee noted that the bill confers on inspectors powers of entry that extendsignificantly beyond situations where the occupier consents or where a warrant has beenobtained. The committee also noted that once entry has been effected, the bill confers oninvestigators a further wide range of powers, including significant powers to obtaininformation. The committee drew to the attention of Parliament the powers of entry, as wellas the extent of the other powers conferred by clauses 65 to 77.

13. The Minister provided the following response:

The Committee notes that the Bill confers powers of entry on inspectors which extendbeyond situations where the occupier consents or where a warrant has been obtained. Inparticular, inspectors may also enter premises which are open to the public, open for

34 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 documentsor other property, only with a warrant issued by a judge or other judicial officer.


Chapter 8 Page 23

carrying on business or otherwise open for entry. These is also a wide range of powers onceentry is effected.

I believe that the powers of enforcement set out in the Bill are necessary to achieve theconsumer protection objectives of the legislation. The Bill establishes a new complianceregime for introduction agents and my Department has an obligation to ensure that industryparticipants are indeed complying. I note that these inspectorial powers are similar to thoseset out in the Retirement Villages Act 1999.

I further note and appreciate the Committee’s comments that:

“The various powers mentioned above are in a form generally similar to thatemployed in a number of recent bills….” and that,

“….the Committee recognises the significant efforts which have been made indrafting many of those provisions to take account of fundamental legislativeprinciples."


Does the legislation provide for the reversal of the onus of proof in criminal proceedingswithout adequate justification?35

Clauses 35(2) and (3)

15. Clause 35 of the bill reverses the onus of proof in relation to the offences provided for incls.35(1)(b), (c) and (d). The committee noted the view expressed in the Explanatory Notesthat this reversal of onus is justified on the basis that the facts concerned in the particularoffences are clearly within the knowledge of alleged offenders and can therefore be easilydisproved by them. The committee referred to Parliament the question of whether thereversal of onus of proof created by cl.35 is justified in the circumstances.


The Committee has referred to Parliament the question of whether the reversal of the onus ofproof created by clause 35 is justified in the circumstances. Clause 35 prohibitsintroduction agents from: falsely representing that a particular person is available to beintroduced to a person; or falsely represent the size of the agent’s database of personsavailable for introduction; or represent that a person having specified characteristics isavailable to be introduced if they are not actually available.

The Committee has noted the justification for the reversal of the onus of proof as set out inthe Explanatory Notes. As those Notes state, in the case of these particular offences, the factto be proved is clearly within the knowledge of the offenders and therefore can be easilydisproved by them. In contrast, it is difficult to gather evidence to prove those facts, eg inthe case of fictitious clients. I would like to add that this particular form of advertising isone which appears to be prevalent in the industry. For example, a client is lured to anagency by a photograph of a person appearing in a newspaper, only to find on inquiry thatthe person is actually not available for introductions. The agent may argue in defence thatthe person was actually available at the time the advertisement was placed. I believe that

35 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 withoutadequate justification.


Chapter 8 Page 24

the reversal of the onus of proof in clause 35 will make agents much more careful beforeplacing this kind of advertisement.


♦ Clause 94

18. Clause 94 provides that if a corporation commits an offence against a provision of the bill,its executive officers also commit an offence punishable by the same maximum penalty,without the necessary intent having to be established by the prosecuting authorities. Clause94 provides that liability may be avoided where the person took all reasonable steps toensure compliance, or where the person was not in a position to influence the conduct of thecorporation. The committee expressed the view that, as a general rule, it does not endorseprovisions that reverse the onus of proof in relation to corporations. The committee referredto Parliament the question of whether cl.94 contains a justifiable reversal of the onus ofproof, and therefore has sufficient regard to the rights and liberties of individuals.

19. The Minister commented as follows:

Clause 94 provides that if a corporation commits an offence against the Act, then itsexecutive officers also commit an offence. It is noted that the committee in general does notendorse such provisions, which constitute a reversal of the onus of proof.

I note that the business of an introduction agent is often established as a corporation. If thecorporation itself was prosecuted then fines would be paid, only if the corporation was stillin existence and only if it had some funds available. Further, if a corporation wereconvicted of an offence under the Act, but not any of its executive officers, then those officerswould be free to establish a new corporation, and obtain a new license to practice under theAct. No offence would be recorded against their names.

As the Committee notes, these provisions do contain some safeguards by establishinggrounds on which a person can rely to avoid liability. I expect the Courts would apply theseprovisions fairly on the facts presented to them and therefore believe that the provisions areessential to ensure the consumer protection objectives of the Act.



Clause 96

21. Clause 96 contains various provisions protecting “officials” who make a disclosure orpublication about the commercial or business reputation of any person involved in providingan introduction service from civil liability where such disclosure or publication is “made inthe public interest”. The committee noted that cl.96 is not dissimilar to provisions whichappear in a number of other consumer-oriented statutes and referred to Parliament the




Chapter 8 Page 25

question of whether the immunity from civil liability conferred by cl.96(1) is justified in thecircumstances.


Clause 96 contains various provisions protecting “officials” from civil liability. Inparticular, clause 96(1) provides that an “official” is not liable for:

“Any disclosure or publication made in the public interest by the official about thecommercial or business reputation of any person involved in providing anintroduction service.”

The Minister, the chief executive, the Commissioner for Fair Trading and an inspector haveimmunity from civil liability in relation to the relevant disclosures or publications.

I consider this provision to be necessary to enable inspectors to be able to carry out theirobligations under the Act without fear of recrimination. Significantly, it will allow officialsto warn consumers about the introduction agents who may be the subject of numerousconsumer complaints. As the committee notes, such disclosures can only be made when theyare done in the “public interest.” The Courts will ultimately decide when such disclosuresare justified. As also noted by the committee, clause 96 is not dissimilar to provisions whichappear in a number of other consumer-oriented statutes, such as the Queensland BuildingServices Authority Act 1991.


Alert Digest No 3 of 2001 Liquor Amendment Bill 2001

Chapter 9 Page 26

9. LIQUOR AMENDMENT BILL 2001

Background

1. The Honourable M Rose MP, Minister for Tourism and Racing, introduced this bill into theLegislative Assembly on 22 March 2001. The committee notes that this bill was passed,with amendments, on 31 May 2001.


3. The bill is identical in substance to the Liquor Amendment Bill 2000 which lapsed whenParliament was dissolved on 23 January 2001, before the committee had tabled a report inrelation to it.

Is the legislation consistent with the principles of natural justice?37

Clause 85 (Proposed s.137C)

4. The committee noted that under proposed s.137C (inserted by cl.85) of the bill, the chiefexecutive may immediately suspend a licence in situations where “harm may be caused tomembers of the public if urgent action to suspend the licence is not taken”. The committeereferred to Parliament the question of whether the provision under proposed s.137C forimmediate suspension of licences, without inviting and considering submissions from thelicensee, has sufficient regard for the rights of licensees.


The committee is concerned that this section does not have sufficient regard for the rights oflicensees.

Activation of a suspension order under this section is subject to two conditions being met.Firstly, that grounds exist for taking disciplinary action against the licensee (these groundsare detailed under section 136) and secondly, that harm may be caused to the public if anurgent suspension is not made. This section has been included to respond to uniquecircumstances such as the incident on the Gold Coast where a number of young people wereadmitted to hospital after consuming a drug known as “GHB” or “Fantasy”. Thecontinuing operation of the dance club contributed to the circulation of the drug andincreased the number of affected patrons. Whilst the club in question was in fact notlicensed, if such activities were to occur on licensed premises, I would want authorisedofficers to be able to take immediate action to close the premises in the public interest.

I consider that the powers are justified as the provisions are intended to addresscircumstances where the licensee or operator is either the cause of, or is unresponsive toissues risking the immediate safety of patrons.


37 Section 4(3)(b) 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 consistent with the principles of natural justice.

Alert Digest No 3 of 2001 Motor Vehicle Securities and Other Acts Amendment Bill 2001

Chapter 10 Page 27

10. MOTOR VEHICLE SECURITIES AND OTHER ACTS AMENDMENTBILL 2001

Background

1. The Honourable M Rose MP, Minister for Tourism and Racing and Minister for FairTrading, introduced this bill into the Legislative Assembly on 3 April 2001. The committeenotes that this bill was passed, with amendments, on 31 May 2001.



♦ Clauses 26(4) (proposed s.39(3)) and 27 (proposed s.45)

3. Clauses 26(4) (proposed s.39(3)) and 27 (proposed s.45) validate existing regulations andthe Schedule to the regulations imposing fees in respect of those matters. The committeeexpressed the view that the provisions relating to fees may well presently be valid, in whichcase the bill will have no substantive effect. The committee further expressed the view that,with one exception, the operative provisions validated by the bill are either probably alreadyvalid or their validation does not produce any adverse effect. The committee referred toParliament the question of whether the validations effected by cls.26(4) (proposed s.39(3))and 27 (proposed s.45) are reasonable in the circumstances.

4. The Minister responded to the committee’s comments: I note the Committee’s comments in the Alert Digest No.1 of 2001, in relation to the Motor

Vehicles Securities and Other Acts Amendment Bill 2001. I am pleased to respond to theCommittee’s comments as follows.

The Bill purports to validate four fees and three provisions contained in the Motor VehiclesSecurities Regulation 1995. The Committee expresses the opinion that the fees: “..may well presently be valid, in which case the bill will have no substantive effect.

Further, with one exception, the operative provisions validated by the bill are eitherprobably already valid or their validation does not produce an adverse effect.”

I am very pleased that the Committee is of the opinion that the fees and relevant provisionsin the regulation are probably valid or that their validation does not produce an adverseeffect. My Department has recommended these validation provisions in response to legaladvice received from Senior Counsel.




Alert Digest No 3 of 2001 Racing and Betting Amendment Bill 2001

Chapter 11 Page 28

11. RACING AND BETTING AMENDMENT BILL 2001

Background

1. The Honourable M Rose MP, Minister for Tourism and Racing and Minister for FairTrading, introduced this bill into the Legislative Assembly on 22 March 2001. Thecommittee notes that this bill was passed, without amendments, on 31 May 2001.



♦ Clause 7

3. The committee noted that the provisions of cl.7 of the bill have the effect of validatingcertain decisions of the Harness Racing Board. The committee recognised that there areoccasions on which curative retrospective legislation, without effects on rights and libertiesof individuals, is justified to correct unintended legislative consequences, and in thecircumstances, made no further comment on the retrospective aspects of the bill.


I note the Committee’s observations in relation to clause 7 of the Bill and wish to thank theCommittee for its comments.




Alert Digest No 3 of 2001 Transport Infrastructure and Another Act Amendment Bill 2001

Chapter 12 Page 29

12. TRANSPORT INFRASTRUCTURE AND ANOTHER ACTAMENDMENT BILL 2001

Background

1. The Honourable S Bredhauer MP, Minister for Transport and Minister for Main Roads,introduced this bill into the Legislative Assembly on 15 May 2001. The committee notesthat this bill was passed, with amendments, on 30 May 2001.


Does the legislation provide for the reversal of the onus of proof in criminal proceedingswithout adequate justification?40

♦ Clause 5 (Proposed ss.73G to 73I inclusive)

3. Clause 5 of the bill amends the Transport Infrastructure Act 1994 by inserting proposedss.73G to 73I inclusive. Proposed ss.73G to 73I provide that the registered operator of anoffending vehicle is made primarily liable for certain offences committed by the driver ofthe vehicle, unless he or she submits a statutory declaration establishing that some otherperson was in fact the driver at the relevant time. The committee expressed the view that theprovisions of ss.73G to 73I create a reversal of the onus of proof. The committee referred toParliament the question of whether this reversal of onus is justified in the circumstances.


I am of the view that the Scrutiny of Legislation committee’s comment (at paragraphs No 9and 12), that the bill makes the registered operator primarily liable for an offence, isincorrect. There is no shifting of the onus of proof. The bill provides that where a vehicle isidentified as having used the toll road without payment of a toll, a notice may be sent to theregistered operator of the vehicle. The vehicle operator is required either to pay the tollplus an administrative charge or establish, as far as reasonably practicable, that he or shewas not the driver who wrongly used the toll road and give any help he or she reasonablycan to the toll operator to establish the name and address of the driver. An offence occursonly where the registered operator fails to comply with the notice.

The offence resembles more an offence which results when a person fails to comply with anotice of abatement issued under the Environmental Protection Act than it does the penaltyinfringement notices issued under the camera-detected offence provisions of the TransportOperation (Road Use Management) Act 1995.

But even if the offence did reverse the onus of proof, it would be justified. The legislativescheme resembles those that have been adopted in other States which have implementedelectronic toll collection systems similar to E toll. These are very good reasons for this.

40 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 withoutadequate justification.


Chapter 12 Page 30

Because vehicles travel through the E toll lanes at speed, the only information available to atoll road operator regarding those vehicles that do not have a transponder is the registrationnumber of the vehicles obtained through the cameras located at the toll plaza. Unlessrecourse can be made to the registered operators of the vehicles so identified, the E tollsystem is not practicable.

It is not reasonable to deny motorists in Queensland the benefits available from suchadvances in Intelligent Transport Systems simply because of the minimal burden that thelegislation places on the registered operators of those vehicles detected as not paying theirfair share of the cost of using the toll roads.

Because the legislation ensures that all drivers pay their fair share, it allows the tolloperator to operate Queensland toll roads in a way that is equitable for all users of thoseroads.

5. The committee notes the Minister’s response


6. The committee noted that proposed ss.73H and 73I enable the toll road operator to imposerequirements upon persons the operator considers on reasonable grounds to be, or to haveinformation about the identity of, drivers. The committee referred to Parliament thequestion of whether the obligations imposed by these provisions are acceptable in thecircumstances.

7. The Minister responded as follows:

Sections 73H and 73I of the Transport Infrastructure Act 1994 are important because theyallow the toll operator to identify who owes a toll. As such they enable the toll operator tooperate the toll road in a way that is equitable for all users. An effective enforcementregime is fundamental to this objective. Sections 73G, 73H and 73I provide the tolls toestablish the person responsible for payment of an unpaid toll and to enforce that payment.

If the registered operator was not the person responsible for payment of a toll there may beno information in the possession of the toll operator which could assist in locating theresponsible person. This situation justifies the legislative provision requesting other persons(such as commercial users like taxi companies) to assist in locating the responsible driver.

No offence is committed by a person sent a notice under one of these provisions unless therequirements are not met within the prescribed time.

Under these circumstances the obligations imposed by sections 73H and 73I of theTransport Infrastructure Act 1994 are reasonable.



individuals.


Chapter 12 Page 31


9. Clause 12 of the bill amends the Transport Operations (Marine Safety) Act 1994 in respectof the immunity which is conferred upon pilots. The committee noted that proposed s.101,inserted by cl.12, continues an exemption currently conferred by the Act upon pilots andtheir “general employers” in relation to civil legal liability. The committee referred toParliament the question of whether, in the circumstances, the immunity from legal liability isjustified.


The committee has referred to parliament the question of whether section 101 of theTransport Operations (Marine Safety) Act 1994 confers immunity from proceeding orprosecution without adequate justification.

As the committee has noted this issue is dealt with in the Explanatory Notes to the act. Thisprovision is considered necessary to ensure the safe and efficient movement of ships into andout of Queensland ports and, as noted by the committee, is primarily a re-enactment of theformer section 101.

All Queensland ports are within declared compulsory pilotage areas, meaning that foreignregistered ships over 35m in length and Australian registered ships over 50m in length, mustengage the services of a pilot when navigating in the port. Port pilots are professionalmariners who possess specialist ship handling skills and a thorough local knowledge of theport and its infrastructure. Because of this local knowledge and expertise, port pilots playa pivotal safety role in the movement of ships into and out of port and, therefore, infacilitating trade in Queensland.

When considering the immunity conferred by this section it is important to note that theimmunity relates only to civil liability and does not limit criminal proceedings against a pilotfor a breach of section 43 of the Transport Operations (Marine Safety) Act 1994 whichrequires a person to operate a ship safely, including a pilot. There is a substantial penaltyassociated with this offence of a maximum of 500 penalty units or $45,000 and up to ayear’s imprisonment. If, as a result of operating a ship unsafely, an incident occurscausing death or grievous bodily harm, a maximum penalty of up to 5000 penalty unitsand up to two years imprisonment applies. Clearly the severe penalties for operating aship unsafely add balance to the pilot’s immunity from civil liability.

Section 101 of the act should also be considered in conjunction with section 102 whichprovides that a pilot who has conduct of a ship is subject to the master’s authority. Further,this section provides that the master of a ship is not relieved from responsibility for theship’s operation merely because the ship is under pilotage. In all cases, if a master of aship believed the pilot was acting in a manner which was unsafe or negligent, the mastercould relieve the pilot at any time.

While the committee has noted that immunity from civil liability for pilots and their generalemployer is limited in two states, the principle of conferring immunity to pilots is common inall jurisdictions. The limitations that do exist are in Western Australia and Victoria. InWestern Australia, limitations established under the Pilots Limitation of Liability Act 1962restrict a pilot’s liability to 100 pounds. In Victoria, limitations are established under the




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Marine Act 1988, which limits a pilots liability in negligence to not more than $200 plusthe cost of pilotage.

In addition to the justification for this section outlined in the Explanatory Note, it isimportant to note that the proposed new provision does not create any additional impost orobligations on pilots, masters, owners, or the industry in general and, as is clear fromconsultation, is supported by the maritime industry.


Alert Digest No 3 of 2001 Traveller Accommodation Providers (Liability) Bill 2001

Chapter 13 Page 33

13. TRAVELLER ACCOMMODATION PROVIDERS (LIABILITY) BILL2001

Background

1. The Honourable M Rose MP, Minister for Tourism and Racing and Minister for FairTrading, introduced this bill into the Legislative Assembly on 15 May 2001. The committeenotes that this bill was passed, with amendments, on 30 May 2001.


Is the legislation unambiguous and drafted in a sufficiently clear and precise way?43

♦ Clause 6

3. The committee noted the broad definition of “traveller accommodation” in cl.6 of the bill,and that the term “accommodation” is not itself defined in the bill. The committee soughtinformation from the Minister as to whether the bill is intended to apply to mobile (as wellas fixed) accommodation, and whether the Minister was satisfied that the terms of the billgive effect to that policy intent.

4. The Minister provided the following information:

The Committee raised a technical issue concerning the potential coverage of the legislationto include mobile forms of accommodation such as a train.

You would be aware that the Bill was passed by Parliament on Wednesday 30 May 2001.

It was always intended for the legislation to cover fixed premises only. In response to theissue raised by the Scrutiny of Legislation Committee, I moved an amendment at Committeestage to clarify the policy intent of the Bill in terms of its application to mobile forms ofaccommodation. The amendment makes it clear that the legislation does not apply to mobileforms of accommodation such as sleeping accommodation provided in trains and otherforms of transportation.

I would like to thank the Committee for their constructive comments on the Bill.

5. The committee thanks the Minister for her response, and notes that the bill has beenamended to address the committee’s concerns.

43 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 precisemanner.

Alert Digest No 3 of 2001 Water Infrastructure Development (Burnett Basin) Bill 2001

Chapter 14 Page 34

14. WATER INFRASTRUCTURE DEVELOPMENT (BURNETT BASIN)BILL 2001

Background

1. The Honourable T A Barton MP, Minister for State Development, introduced this bill intothe Legislative Assembly on 15 May 2001. The committee notes that this bill was passed,with amendments, on 29 May 2001.



♦ Clause 10(2)

3. The bill provides for an environmental impact assessment process, currently beingconducted by a private company in respect of certain proposed developments in the BurnettBasin, to be undertaken by a State-owned company. The provisions of cl.10(2) of the billrelieves the State-owned company of the necessity to negotiate about entry to the relevantland with the owner before applying to the Coordinator-General for an authority to enter,depriving landowners affected by this project of a privilege normally accorded by the StateDevelopment and Public Works Organization Act 1971. The committee sought informationfrom the Minister as to whether the State-owned company mentioned in the bill is already inexistence and, if so, as to its registered name. The committee also referred to Parliament thequestion of whether, in the circumstances, the provision of cl.10(2) has sufficient regard tothe rights of landowners.

4. The Minister provided the following information:

That Digest raises two issues:

• Status of the State owned company; and

• Whether clause 10(2) of the Bill has sufficient regard to the rights oflandowners.

As of 29 May 2001, the State owned company is not yet registered. However, the companyname “Burnett Water Pty Ltd” has been reserved.

In response to paragraph 9 of the Alert Digest extract, the following information is relevant:

• Section 91C(1) of the State Development and Public Works Organisation Act1971 (SDPWO Act) requires the proponent to seek to negotiate entry beforemaking application to the Coordinator-General for an investigator’s authorityto enter the land. This Bill removes that requirement, however, in practice, Iwill ask the Directors of the State-owned company to seek to negotiate entrybefore seeking an authority to do so under this Bill.


individuals.

Alert Digest No 3 of 2001 Water Infrastructure Development (Burnett Basin) Bill 2001

Chapter 14 Page 35

• There are still extensive protections for the rights of landowners under theremaining parts of Division 6 of the SDPWO Act which go far beyond thoserequired for public sector projects. The Coordinator-General is required toconsult with the landowner in deciding an application for access to investigateland and must clearly specify the purposes for which the investigator may enterthe land as well as the approximate period of entry. The investigator will alsobe bound by the other provisions of the SDPWO Act including those thatrequire rectification of and/or compensation for any damage caused during theinvestigation. There is an obligation on the holder of the investigator’sauthority and all persons operating under that authority to abide by conditionsof entry.

• The removal of the requirement to negotiate is limited in so far as it onlyapplies to an application by the State-owned company concerning the specifiedwater infrastructure options. It will expire in accordance with the Bill’s sunsetclause.

• I will ask the Directors of the State owned company to seek to proceed by wayof negotiation with native title holders as with holders of ordinary title. TheCoordinator-General still has an obligation to consult with affected owners. Inthis way the Government will meet its commitment to native title holders.

It is the Government’s view that removing the statutory requirement for the proponent tonegotiate with landowners about entry, whilst maintaining the remaining protections inDivision 6 of the SDPWO Act is justified in the interests of expediting the assessment of thiskey infrastructure to assist agricultural and industrial development in the Burnett region.


This concludes the Scrutiny of Legislation Committee’s 3rd report to Parliament in 2001.

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

Warren Pitt MPChair

19 June 2001

APPENDICES

Appendix A — Ministerial Correspondence

Appendix B — Terms of Reference

Appendix C — Meaning of “FundamentalLegislative Principles”

Appendix D — Table of bills recently considered

Alert Digest No 3 of 2001 Appendix B – Terms of Reference

Page 37

APPENDIX B – TERMS OF REFERENCEThe Scrutiny of Legislation Committee was established on 15 September 1995 by s.4 of theParliamentary Committees Act 1995.

Terms of Reference

22.(1) The Scrutiny of Legislation Committee’s area of responsibility is to consider

(a) the application of fundamental legislative principles45 to particular Bills and particularsubordinate legislation; and

(b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation46.

(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)

45 “Fundamental legislative principles” are the principles relating to legislation that underlie a parliamentary democracy based on the

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

* The relevant section is extracted overleaf.46 A member of the Legislative Assembly, including any member of the Scrutiny of Legislation Committee, may give notice of a

disallowance motion under the Statutory Instruments Act 1992, s.50.

Alert Digest No 3 of 2001 Appendix C – Meaning of “Fundamental Legislative Principles”

Page 38

APPENDIX C - MEANING OF "FUNDAMENTAL LEGISLATIVEPRINCIPLES"

4.(1) For the purposes of this Act, "fundamental legislative principles" are the principles relating tolegislation that underlie a parliamentary democracy based on the rule of law.47

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

1. rights and liberties of individuals; and2. the institution of Parliament.

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

(a) makes rights and liberties, or obligations, dependent on administrative power only if the power issufficiently 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, theBill –

(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"), allowsthe 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.

47 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 3 of 2001 Appendix D – Table of Bills Recently Considered

Page 39

APPENDIX D – TABLE OF BILLS RECENTLY CONSIDERED(Appendix D is not reproduced in this Alert Digest – copies of the Appendix can be obtained fromthe Committee’s Secretariat upon request.)

Documents

SCRUTINY OF LEGISLATION COMMITTEE